The High Court has issued a ruling that halts the prosecution of five National Environment Management Authority (NEMA) staff members linked to the Embakasi gas explosion. The court’s decision prohibits further detention, charging, or incarceration of the officials involved, citing legal protections that shield them from criminal liability for actions taken within the scope of their official duties.
The ruling was delivered by Justice John Chigiti, who directed the Director of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) to stop any ongoing criminal proceedings against the NEMA employees. The judgment specifically bars the authorities from detaining or charging Senior Environment Officer Joseph Makau, along with colleagues David Walunya, Marrian Kioko, Lynette Cheruiyot, and Isaac Kimitei.
In his ruling, Justice Chigiti emphasized that the officials are protected under the Environmental Management and Coordination Act, which grants immunity to public officers acting in their official capacity. This protection means that any decisions or actions taken by these individuals within the course of their employment cannot form the basis for criminal prosecution.
The judge also declared that the detention of the five NEMA staff was unlawful, issuing an order of certiorari to quash the decision by the DCI to hold them. This effectively nullifies their detention and supports their argument that their rights were violated. The court’s intervention is a significant assertion of statutory protections that public officers enjoy in carrying out their duties.
One of the NEMA officials, Senior Environment Officer Joseph Makau, had argued that he is statutorily immune from criminal liability, given that his actions were part of his official duties. Makau cited section 66 of the Environmental Management and Coordination Act, which explicitly shields officials from personal liability in matters related to the issuance of environmental impact assessment licenses. His defense contended that this immunity was breached by the arrests and detention, which were not justified under the law.
The background of the case stems from a gas explosion that occurred on February 1, 2024, in Mradi, Embakasi, Nairobi County. The incident prompted investigations that led to the arrest of the five NEMA officials five days later, on February 6, 2024. They were held at Embakasi and Capitol Hill police stations before being formally arraigned at the Chief Magistrates Court in Nairobi.
The prosecution had sought custodial orders to detain the NEMA staff for 21 days under Section 36A of the Criminal Procedure Code and Article 49 of the Constitution, requesting this time to complete their investigations into the gas explosion. The Magistrate Court granted the 21-day detention period, during which the officials remained in custody at Embakasi police station.
However, the recent High Court ruling has overturned the basis for their continued detention and prosecution. The court’s prohibition on further proceedings underscores the legal protections public officers have under the Environmental Management and Coordination Act when performing their duties.
The case highlights the balance between holding public officials accountable and recognizing the legal immunities that exist to allow them to carry out their responsibilities without fear of personal liability for actions within their official scope. The High Court’s decision reaffirms that while investigations into incidents like the Embakasi gas explosion are important, the law protects officials who act in good faith under statutory authority.
This ruling is a critical precedent in defining the limits of prosecution against environmental officers, particularly in contexts involving technical regulatory roles such as licensing and environmental impact assessments. It also serves as a reminder for prosecuting authorities to carefully consider statutory immunities before pursuing charges against government officials.
The order effectively releases the five NEMA staff members from the threat of further legal action related to the gas explosion and allows them to return to their official duties without the burden of criminal proceedings hanging over them. It also sends a clear message about the importance of respecting the legal frameworks that protect public servants in the execution of their lawful responsibilities.
