Embakasi tragedy: Site owner claims EPRA suspended operating licenses illegally

The prime suspect in the February 1, Embakasi fire tragedy Derrick Kimathi now claims that a decision by the Energy and Petroleum Regulatory Authority (EPRA) to suspend two of his operating licenses was malicious and denied him an opportunity to be heard.

On February 14, EPRA suspended Kimathi's licenses for storage and filling of Liquid Petroleum Gas (LPG) in cylinders, transport of LPG in bulk by road and transport of petroleum products by road being licenses numbers EPR4/LPG/9780, EPR4/LPG/9954 and EPR/PET/8456 respectively.

Kimathi was using the licenses, to operate two firms in Nanyuki namely; Derdols Tech Services Limited and Derdols Petroleum Limited and the ill-fated Maxxis Energy Nairobi Ltd that EPRA said was operating illegally.

In an affidavit filed at the High Court, Kimathi is seeking to have the suspension reversed on claims that it was unreasonable and punitive.

"I find the respondent's notice is tainted with malice, illegality and bad faith as the ex-parte applicants were not informed of the decision to suspend the said license," the affidavit reads in part.

According to Kimathi, EPRA had earlier sent a show cause notice addressed to Maxxis Nanyuki Energy in reference to license number EPRA/LPG/9780 for storage and filling of LPG cylinders.

"The notice was issued pursuant to section 81(2) of the Petroleum Act (2019) which deals with issuance of 14 days' notice to show cause to the licensee as to why their permit or license should not be revoked," he says.

Kimathi adds that he responded to it on February 13 in writing, however, the following day, he logged into the EPRA Portal and received a notification that all three licenses had been suspended.

"The decision by the respondent to suspend the ex-parte applicants' other two licenses without notice being EPRA/LPG/9954 and EPRA/PET/8456 is marred with illegality, impropriety as there was no notice to show cause issued as provided under the law, section 81(2)(3)(4) of the petroleum Act 2019. The response also failed to apply the principles of natural justice by failing to give me an opportunity to be heard," says Kimathi who now wants the court to reverse the suspensions.

"Unreasonable"

The law firm handling his case Koskkei and Martins Advocates notes that it was unreasonable for EPRA to act contrary to the law without giving the ex-parte applicants an opportunity to be heard.

"This is a total disregard of Article 47 of the Constitution of Kenya which provides in part that every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair," his lawyers add.

Kimathi appeared before Magistrate Dolphina Alego on February 6 alongside three National Environment Management Authority officials namely; Joseph Kamau, David Walunya Ong'are and Marrian Mutete Kioko but were not charged.

The Directorate of Criminal Investigations (DCI) Embakasi region filed an application seeking 21 days to continue detaining them to complete the probe into the incident that claimed more than 10 lives and left over 300 people injured.

The four are being investigated for various offences including murder, conspiracy to commit a felony and negligent act causing harm following an explosion that occurred within the premises of Maxxis Energy Nairobi Ltd in Embakasi.