Court halts prosecution of NEMA officers linked to 2024 Embakasi gas explosion

The High Court has ruled that senior Environment officers charged over last year’s deadly Embakasi gas explosion enjoy statutory immunity, making their prosecution unlawful.

The unlicensed facility was at the centre of a devastating explosion in February 2024, which killed at least 12 people and injured hundreds.

The blast triggered a massive fire that swept through the densely populated neighbourhood near the airport, destroying homes, vehicles, and businesses.

Investigations found the gas plant was operating illegally without proper approvals or safety measures, and the cause was attributed to a gas leak igniting the blaze.

The officers, employed by the National Environment Management Authority (NEMA), were charged in relation to decisions made while issuing an Environmental Impact Assessment (EIA) licence for the site.

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 They argued that their arrest and prosecution violated fundamental rights, including protection from arbitrary detention without written justification.

They also contested the 21-day extension of their detention, saying it lacked legal grounds, and challenged the failure by prosecutors to provide evidence of criminal negligence or to formally charge them.

The Director of Public Prosecutions (DPP), however, defended the charges, insisting the application to quash them was premature, with investigations still underway.

 The DPP argued that prosecutorial powers are constitutionally protected and exercised in the public interest, and that courts should not interfere with ongoing criminal proceedings unless abuse of power is evident.

In its judgment, the court outlined three key questions: whether the officers enjoy immunity from prosecution, whether judicial intervention was warranted, and who should bear the legal costs.

Relying on Section 66 of the Environment Management and Coordination Act (EMCA), the court found that public officers acting bona fide within their legal mandate cannot be held civilly or criminally liable for such actions.

 It cited precedent confirming that such immunity exists to safeguard public service integrity, not to protect wrongdoing.

The court also reaffirmed that only the DPP may initiate criminal prosecutions, free from interference, except where unlawful conduct or abuse is shown.

Finding no evidence of bad faith or criminal intent on the part of the officers, the court held that prosecuting them would violate statutory and constitutional protections.

It also found their extended detention to be unlawful, stating that they should have been brought before a court within 24 hours of their arrest.

Though it accepted the magistrate’s order allowing the extension was legally issued, it stressed that challenges to such decisions should go through appeals, not judicial review.

 The court issued an Order of Prohibition stopping the trial, underlining the need to uphold constitutional rights and legal safeguards for public officers.

On costs, the court ordered the respondents to pay, calling their actions oppressive and unlawful.