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Court declines to suspend order freezing Sh16bn Taifa Gas plant set up
Taifa Gas, which is associated with Tanzania’s billionaire Rostam Aziz, had sought the order saying the injunction may have resulted in losses for the company. Environment and Land Court Judge Stephen Kibunja, however, rejected the plea.
The Environment and Land Court has declined to suspend an order temporarily stopping construction of a Sh16 billion Liquefied Petroleum Gas (LPG) terminus by Taifa Gas Investments SEZ Ltd in Dongo Kundu in Likoni, Mombasa.
Taifa Gas, which is associated with Tanzania’s billionaire Rostam Aziz, had sought the order saying the injunction may have resulted in losses for the company. Environment and Land Court Judge Stephen Kibunja, however, rejected the plea.
“The flipside is that the damage to the environment may equally be as great if the works were to continue as the applications are heard and determined,” said Justice Kibunja on Monday.
Taifa Gas had sought the setting aside and stay of execution of the order pending hearing and determination of its application.
On August 5, the court issued an order of temporary injunction restraining the firm from carrying out deleterious activities, particularly cutting down, wasting away, and destroying trees or carrying out construction works, including but not limited to setting up the LPG terminus on the land, pending hearing and determination of a petition.
The issuance of the order followed an application by Mohamed Karungu and Raphael Nyiro, who filed a petition challenging the construction of the LPG terminus at Dongo Kundu. The duo had initially filed a petition in May, which they later withdrew on July 29 after filing the current one.
Through its lawyer, James Oduol, Taifa Gas had argued that the order temporarily stopping the construction of the 30,000-tonne LPG terminus had been obtained after material non-disclosure on the part of the petitioners’ lawyer.
The company also argued that the petitioners’ lawyers had failed to effect proper and lawful service of the court’s directions, which required it to respond to their application. It also argued that there have been three cases at the National Environment Tribunal (NET) challenging the project, where orders meant to stop the project were declined.
Mr Oduol told the court that the stoppage of the project was costing the respondent Sh8 million per day.
He also told the court that if the petitioners wanted the court orders to continue, they must grant a Sh16 billion bank guarantee from a first-tier bank.
Through lawyer Jackson Muchiri, the petitioners opposed the application for setting aside the orders suspending the construction of the LPG terminus, arguing that they would prove that the initial petition they had filed was withdrawn procedurally.
Mr Muchiri told the court that they will also prove that service of the court documents to the respondents was effective. He added that the respondent has no other website other than the one where they obtained the email address.
In their petition, Karungu and Nyiro say that they are residents of Likoni within a radius of the project by Taifa Gas Investments SEZ Ltd.
They contend that the respondent has proposed to construct the LPG plant and intends to clear indigenous natural trees and vegetation and excavate the land to provide space for the LPG tanks, which will lead to soil erosion and environmental degradation of the land and its environs.
“The petitioners aver that clearing the vegetation will interfere with the coral rock and will negatively affect the ecosystem around the land,” part of the petition states.
According to the petitioners, the project by Taifa Gas Investments SEZ Ltd involves the construction of a pipeline, which will lead to the suspension of sediments that will ruin the quality of water and penetration of light for the ecosystem within the water.
“The petitioners also contend that the construction of a pipeline will ruin the fishing grounds, which are a source of livelihood for the local population,” argue the petitioners, who have named the National Environment Management Authority (Nema) as an interested party in the case.
The petitioners argue that the proposed development will have adverse environmental and land use impacts on the land, including the depreciation of the environment, an increase in pollution, increased vehicular and human traffic, and a rise in insecurity, which will pose a great threat to the inhabitants around the land.
They want a conservatory order of injunction issued to restrain Taifa Gas Investments SEZ Ltd from carrying out deleterious activities, carrying out construction or works, including but not limited to setting up of the LPG terminus without prior compliance with Articles 10,40,42, and 69 of the Constitution.
The petitioners also want a declaration that Taifa Gas Investments SEZ Ltd's unauthorised construction, felling, and destruction of indigenous trees, excavation, or proposed commencement of works to set up the LPG terminus without prior notice, consent, consultation, or compensation to them, and compliance with mandatory provisions of the law is illegal, unconstitutional, null, and void.
They are also seeking compensation from Taifa Gas Investments SEZ Ltd for the destruction of the environment, indigenous trees and vegetation, and excavation works in violation of the law. The case was fixed for hearing on September 24.
