The Environment and Land Court (ELC) has allowed the withdrawal of a petition which challenged a special use license granted to African Gas and Oil Company Ltd (AGOL) to use portion of forest land within Kilindini bay mangrove area in Mombasa Forest Zone for a period of 30 years.
However, the ELC also ruled that the withdrawal was not a determination of any issue raised in the petition on its merits, it does not validate, ratify or legitimize any licence, allocation, grant, consent or dealing impugned in the petition.
“It does not operate as res judicata (issues already determined) and it is no bar to any person, or to any of the respondents, hereafter raising the same matters before this or any other competent forum,” the court also ruled.
Mr John Onunga, the petitioner, in his application seeking to withdraw the petition said that he had decided that it was no longer necessary to continue with the case as he had secured an opportunity to travel and reside outside the jurisdiction of the court and would not be in a position to prosecute it (petition) effectively.
Apart from Agol which is associated with billionaire businessman Mohamed Jaffer, the petitioner had sued Kenya Forest Service (KFS), National Land Commission (NLC), National Environment Management Authority (NEMA) and the Attorney General.
The ELC also ruled that the statutory mandates and powers of KFS, NLC and NEMA in respect of the subject matter of the petition are wholly unaffected by the ruling.
It also discharged interim orders issued June 22, 2026, restraining AGOL and KFS from commencing or undertaking any new major construction works within the licensed mangrove forest area.
In its ruling, the ELC noted that “a petition of this character is one” in which the court has a legitimate interest of its own.
It further noted that the papers filed disclose a genuine and unresolved contest over whether a Special Use Licence may lawfully be granted over a gazetted mangrove forest, and over where, as between KFS and NLC the power to deal with public forest land resides.
“Those are questions of consequence. They will have to await a case in which they are argued to a conclusion,” ruled the court.
The ELC also noted that there was nothing before it from which it could infer bad faith.
“No consent has been sprung upon the court, no settlement has been recorded, no money is said to have changed hands, no parallel suit has been filed elsewhere to make this withdrawal an exercise in forum shopping,” noted the ELC in its ruling.
In his petition, Mr Onunga said 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 said 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 stated.
Mr Onunga wanted 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 wanted 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 said that KFS had 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 NLC.
Mr Onunga claimed 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 stated.
The petitioner further said 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 said.
The petitioner also wanted 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.
In its documents filed in court, Agol said it was on March 21, 2012, issued by KFS with a special use licence for 30 years over a portion of the Kilindini Bay mangrove area in the Mombasa Forest Zone, for the construction and operation of a common user facility and related LPG terminal infrastructure, pipelines, storage tanks and a jetty.
AGOL said that by Clause 6 of the licence, the area remains a state forest and the licence confers no exclusive possession, creates no lease or tenancy and alienates nothing thus neither the participation of the NLC nor any de-gazettement was required.
It also said that it is the largest importer and storer of LPG in the country, employs over one hundred people and pays conservation fees, forest land rent, wayleave and jetty fees to KFS and that Clause 11 of the licence binds it to conserve the licensed area.
KFS and the AG in their court documents said the suit property forms part of the Coastal Mangrove Swamp gazetted as a forest area by Proclamation No. 44 of 1932 and declared public forest by Legal Notice No. 174 of 1964, a status never since revoked.
They also said that its management vests in the KFS under section 34 of the Forest Conservation and Management Act and not in the NLC and that the licence conditions require the rehabilitation of some 300 hectares of mangrove forest.
