Tribunal strikes out petition challenging Sh16bn Taifa Gas plant

Taifa Gas which is associated with Tanzanian industrialist Rostam Aziz has scored a big win after the National Environment Tribunal dismissed a petition that sought to review a case in which it had been granted the green light to establish a Liquefied Petroleum Gas (LPG) plant in Likoni.

The tribunal in a ruling dated December 19 dismissed an application by two Likoni residents Mohamed Karungu and Raphael Nyiro in which they sought orders to file an appeal against the judgment that was delivered in January 2024.

In that judgement, the tribunal had allowed Taifa Gas to proceed with its construction of the gas plant after finding that all statutory requirements were met.

However, the two residents moved to the Environment and Land Court in Mombasa where Justice Stephen Kibunja dismissed their application to have the case heard afresh.

President William Ruto (left) and Taifa Gas Group Chairman Rostam Aziz unveil a plaque during the ground-breaking ceremony for the construction of the 30, 000-metric tonne plant at the Dongo Kundu Special Economic Zone in Likoni, Mombasa County, on February 24, 2023./FILE

“The petitioners’ claim in this petition is, therefore, not a constitutional petition but a challenge on the respondents Environmental Impact Assessment (EIA) licence to the project,” the court ruled.

As such, Justice Kibunja found that the right forum for the petitioners to seek relief was the National Environmental Tribunal, from where they would approach the court through an appeal.

“What the petitioners should have done is to apply for joinder or substitution after judgment and file an appeal on the tribunal’s decision,” the judge ruled.

Armed with that ruling, the petitioners moved to the National Environment Tribunal in Nairobi, seeking leave to file an appeal out of time against the tribunal’s judgment, arguing they were not aware of the initial petition.

However, that application was dismissed with the tribunal holding that it was incompetent and devoid of merit for want of jurisdiction. The tribunal held that the case was determined and settled and ccannot be reopened.

“The tribunal must emphasise that the finality of its judgment is not a matter of discretion, sympathy or convenience but a matter of law. Once jurisdiction is exhausted, it cannot be revived by the form in which an application is presented nor by invoking constitutional values beyond the tribunal’s statutory mandate,” the ruling reads.

It was signed by the tribunal’s chairman Emmanuel Mumma, vice chairman Winnie Tsuma and members Duncun Kuria, Ronald Ong’udi and David Njoroge.

In the Environment court, Karungu and Nyiro had claimed that the construction of the LPG terminus would have adverse environmental and land use impacts, including depreciation of the environment.

The Sh16 billion project is being undertaken by Taifa Gas Limited, whose founder and chairman is Tanzanian industrialist Rostam Aziz.

The company had raised preliminary objections to the petition, asking the court to strike it out.

It argued that the matter had been conclusively determined by the National Environmental Tribunal, and that it could only be before the Environment and Land Court as an appeal and not a fresh petition.

Justice Stephen Kibunja agreed with the firm and upheld its objection, ruling that the issues in the petition were the same as those in the National Environmental Tribunal, hence the matter was 'res judicata' (having been adjudicated upon and determined).

The tribunal’s ruling that has now dismissed the application to seek an appeal means Taifa Gas is now free to proceed with the construction of its plant in Likoni.

The groundbreaking for the Sh16 billion project was presided over by President William Ruto in February 2023, and it is expected to create jobs and address critical gaps in Kenya’s energy sector.