A company involved in importation, storage and wholesale of Liquified Petroleum Gas (LPG) wants an application seeking to have it temporarily stopped from using a parcel of land, within Kilindini Bay mangrove area, as an oil and gas landing site, dismissed.
African Gas and Oil Company Ltd (Agol) says that it is a major stakeholder in the energy sector and a key player in the importation and storage of LPG in the country thus any injunctive orders against it will have negative impact not only to it but the public interest at large.
Through an affidavit of its legal officer filed in court, Agol says that it has invested substantial sums of finances towards its business and currently employs over 100 employees and relies on the operations running through its licensed area.
“Should a conservatory order be issued as sought by the petitioner, then the first respondent (Agol) will have to halt its business leading to loss of jobs to thousand of its employees and loss of its revenue,” part of the affidavit states.
Agol, which is associated with billionaire businessman Mohamed Jaffer, says it was granted a special use licence for 30 years over the portion of Kilindini Bay mangrove area located at Mombasa Forest Zone by Kenya Forest Service (KFS) to construct a common user facility and related LPG terminal infrastructure including pipelines.
Mr John Onunga, in the application, wants a conservatory order issued restraining Agol from using the parcel of land as an oil and gas landing site, or point docking vessels and discharge of any oil and gas or points of conveying oil and gas from sea vessels to the mainland deposits/using the land in whatsoever manner.
He wants the order issued pending hearing and determination of the application and petition.
Mr Onunga says that on or about March 21, 2012, KFS granted a special licence to Agol to use 23.1 hectares of forest land within the Kilindini bay mangrove area in Mombasa for a period of 30 years.
He claims that the issuance of the license was illegal due to Proclamation No. 42 of 1992 declaring it to be part of the coastal mangrove swamp forest and prohibits any human activities.
“The first respondent (Agol) use of the said parcel of land has disturbed the entire mangrove eco-system as both growth and development of flora and fauna is being hindered by the activities of the first respondent and resultant oil spillage,” part of the application states.
Mr Onunga further claims that the oil spillage within Kilindini mangrove swamp has affected the breeding of both flora and fauna apart from being deleterious to the environment.
Agol says that the special use license was issued pursuant to the determination by KFS that the primary purposes of the activities allowed were in the public interest and would not be destructive or injurious to the mangrove forests.
“The special use license issued by KFS does not in any way amount to allocation of public land, create a lease or transfer the rights over the forest to the respondent,” part of the affidavit states.
Agol says that in undertaking the construction of its facilities, it duly applied and obtained necessary approvals from the National Environment Management Authority (NEMA) in accordance with applicable regulations.
It says that the allegations by Mr Onunga that the issuance of the special use license to it (Agol) was illegal and un-procedural as there is a prohibition of any human activity pursuant to the Proclamation No.44 of 1932 is misleading.
“There is no such prohibition declaring it to be part of the coastal mangrove swamp forest and prohibits any human activities thereto,” the affidavit states.
Agol says that the petitioner’s allegations of obstruction and impediment to the breeding of fish, oil spills and disturbance and destruction to the mangrove swamp have no basis and are intended to mislead the court.
In his main petition, Mr Onunga says that Agol was granted the land to construct, install, operate, maintain, repair and replace petroleum products pipeline, construct storage tanks, jetty and other offloading structures and to construct access road, grading and maintenance within the forest area.
Mr Onunga says that by an addendum dated June 8, 2023, KFS further granted a special use license to Agol to further use 17.2 hectares of forest land within Kilindini bay mangrove area.
“The land licenced to the first respondent (Agol) is within Mombasa forest reserve and forms part of the coastal mangrove swamp forest that was gazetted via proclamation which is still in force since it has never been revoked,” part of the petition states.
Mr Onunga wants a declaration that KFS has no power or mandate to grant any rights over public land including government forests and specially protected areas either by way of a conveyance, lease, license or otherwise.
He also wants a declaration that the special license granted by KFS to Agol to use the forest land within Kilindini bay mangrove area in Mombasa Forest zone for a period of 30 years and a further special use license is unconstitutional, tainted with illegality and thus null and void.
The petitioner says that KFS has no power or mandate to grant any rights over public land including government forests and specially protected areas either by way of conveyance, lease, license or otherwise to Agol since the mandate is bestowed to the National Land Commission (NLC).
Mr Onunga says that the land falls within a gazetted forest and that no degazettment has been done and there has been no government resolution to have the land degazetted for purposes of licensing or leasing.
“The license granted to Agol by KFS is tainted with illegality and thus cannot be allowed to pass any interest and any leases or license should be cancelled. It was obtained illegally thus a nullity,” part of the petition states.
The petitioner further says that before the grant of a special license to Agol and before it was licensed to undertake any activities in the forest land, the public ought to have been informed and engaged through wide dissemination of information.
“No proper, meaningful and adequate public participation as contemplated under the constitution was ever undertaken before the special license to use forest land was granted to the first respondent,” the petitioner argues.
The petitioner further argues that the decision made by KFS to grant a special use license to Agol to use the 23.1 hectares of the forest and further the special use license granted to it (Agol) to further use 17.2 hectares of the forest land is illegal and unconstitutional.
The petitioner also wants a declaration that there was no proper, meaningful and adequate public participation as contemplated in the constitution that was ever undertaken by KFS before the grant of the special use license to KFS.
The petitioner also wants an order issued for the cancellation of the special use license granted by KFS to Agol to use 23.1 hectares of the forest within Kilindini bay mangrove area in Mombasa Forest zone for a period of 30 years.
