Oil marketer, Ola Energy Kenya Ltd has lost an appeal against a judgement by the National Environmental Tribunal (NET) cancelling an Environmental Impact Assessment license (EIA) for the proposed expansion of its marine terminal in Shimanzi, Mombasa.
The Environment and Land Court (ELC) ruled that there may be no problem in expanding the Liquefied Petroleum Gas (LPG) marine terminal, but the residents (respondents) and Non-Governmental Organizations or community groups be involved in the decision-making process.
ELC which thought that public participation was properly held noted that conflicting information between the appellant (Ola Energy) and the respondents on how public barazas were conducted left it with no choice but to rely on proceedings where it notes that there was no testimony of box-ticking as held by the tribunal.
Justice Nelly Matheka who dismissed the appeal also directed that public participation be properly captured or even video recorded.
“The court appreciates the appellant’s initiative in engaging a multi-agency team before the grant of the EIA license but parties to be affected will not be the multi-agency team but people on the ground and it is apparent that they were not satisfied with the Environmental Social Impact Assessment (ESIA) report,” ruled Justice Matheka.
Justice Matheka, sitting in Mombasa, noted that the respondents were not satisfied with the report thus it was probable that Ola Energy found it easier to prefer an appeal than lodging a fresh ESIA report.
The judge further ruled that the court cannot be aloof to the happenings of a fire explosion in February where an LPG plant at Embakasi exploded killing innocent Kenyans.
“Although the said LPG plant had allegedly been illegally constructed and different from the circumstances herein I prefer to use the precautionary principle and disallow the appeal,” said Justice Matheka.
The judge also noted that Ola Energy had not addressed a letter by a human rights lobby group dated July 19, 2021, where it had raised several issues such as the distance of the proposed expansion to the neighbouring community.
NET had ruled that ESIA worked backward from a preconceived position that the proposed project was safe, low risk, and must be implemented at that particular location rather than arriving at that position objectively.
It further found that the National Environment Management Authority (Nema) erred in granting the EIA license to Ola Energy without subjecting the proposed project to a fresh and objective ESIA study report.
“The potential for harm to the environment by the project and population surrounding the project site were not adequately addressed,” NET had ruled.
The respondents who had also sued the National Environment and Management Authority accused it of failing to carry out public participation and that Ola Energy also failed to ensure that it (public participation) was done before issuance of the license.
They also argued that Nema failed to consider that the project site was very close to the navigation channel which is the only entrance to the Kilindini Port.
Ola Energy had opposed the residents’ case at NET arguing that the proposed project was of great public benefit and in line with the government’s goal of using clean, safe, and sustainable energy sources.
It also argued that the proposed project does not pose any negative environmental or social harm, contrary to assertions of the respondents, that public participation was conducted and all concerns raised by members of the public and other relevant stakeholders were taken into account.
