City Gas East Africa Ltd v Energyand Petroleum Regulatory Authority & Inspector General of Police [2021] KEHC 6083 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. E056 OF 2021

BETWEEN

CITY GAS EAST AFRICA LTD..........................................................APPLICANT

VERSUS

THE ENERGYAND PETROLEUM

REGULATORYAUTHORITY...................................................1st RESPONDENT

THE INSPECTOR GENERAL OFPOLICE.........................2ND RESPONDENT

RULING

1. The Applicant herein has filed an application by way of a Chamber Summons dated 30th April 2021, seeking the following orders :

1. THAT for reasons to be recorded, this Honourable Court be pleased to certify this application as urgent and that the same be heard ex parte in the first instance.

2. THAT for the reason that the Energy and Petroleum Tribunal under the Energy Act has not been duly constituted, this Honourable Court be pleased to grant leave to the Applicant to institute these proceedings before it by exempting the Applicant from the obligation to exhaust the remedies under the  Energy Act by filing the disputes arising herein before the Energy and Petroleum Tribunal pursuant to Section (9)(4) of the Fair Administrative Actions Act.

3. THAT this Honourable Court be pleased to grant leave to the Applicant herein to apply for the Judicial Review Orders of CERTIORARI to bring forth before this court and quash the 1st Respondent's decision made on the 21st April, 2021 suspending the Applicant's license and sealing it's Liquefied Petroleum Gas Cylinder refilling Plant located along Shimo La Tewa road , within Nairobi's Industrial area Nairobi County .

4.  THAT this Honourable Court be pleased to grant leave to the Applicant herein to apply for the Judicial Review Order of MANDAMUS compelling the  Respondents herein to reopen the Applicant's Liquefied Petroleum Gas (LPG)  Cylinder refilling Plant located along Shimo La Tewa road,within Nairobi's  Industrial  area  Nairobi County  by  removing  all  the  seals  they placed on the said Plant on the 16th April 2021.

5. THAT this Honourable Court be pleased to grant leave to the Applicant herein to apply for the Judicial Review order of PROHIBITION prohibiting the  Respondents herein from closing, sealing and or in any way interfering with the Applicant's operations in relation to the raid carried out by the Respondent's on the Applicant's premises along Shimo La Tewa road, within Nairobi's Industrial area Nairobi County on the 16th April 2021.

6. THAT the leave so granted do act as a STAY of the 1st Respondent's letter dated 21st April 2021 and further stays the Respondent's decision to seal and or close the Applicant's Liquefied Petroleum Gas Refilling Plant located along Shimo La Tewa road, within Nairobi's Industrial area Nairobi County, by directing it to remove any seals that might interfere with the  normal operations of the Applicant's business operations within the Plant.

7. THAT this Honourable Court be pleased to give such further orders as it shall deem fit and just in the circumstances of this case.

8. THAT the cost of this application be provided for.

2. The said application is supported by a statutory statement dated 30th April 2021, and a verifying affidavit sworn on the same date by one Hassan Adan Bare, the Applicant’s Managing Director. I note that the Applicant is inter aliaseeking to be exempted from exhausting the remedies under the  Energy Act of filing the dispute arising herein before the Energy and Petroleum Tribunal pursuant to Section (9)(4) of the Fair Administrative Actions Act.

3. Section 25 of the Energy Act in this respect establishes the Energy and Petroleum  Tribunal, and section 36  provides for the said Tribunal’s jurisdiction as follows:

(1) The Tribunal shall have jurisdiction to hear and determine all matters referred to it, relating to the energy and petroleum sector arising under this Act or any other Act.

(2) The jurisdiction of the Tribunal shall not include the trial of any criminal offence.

(3) The Tribunal shall have original civil jurisdiction on any dispute between a licensee and a third party or between licensees.

(4) The Tribunal shall have appellate jurisdiction over the decisions of the Authority and any licensing authority and in exercise of its functions may refer any matter back to the Authority or any licensing authority for re-consideration.

(5) The Tribunal shall have power to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance.

(6) The Tribunal shall hear and determine matters referred to it expeditiously.

4. The Authority referred to in section 36 is the 1st Respondent. It is consequently my view that arising from the said provisions of the Energy Act on the jurisdiction of the Energy and Petroleum Tribunal, and the provisions on exhaustion of internal remedies of appeal and review in section 9 of the Fair Administrative Action Act, the questions of exemption from the operation of the said provisions, and of leave to commence judicial review proceedings requires to be canvasses inter partes.

5. In the circumstances, I hereby direct and order as follows:

I.The Applicant shall serve the Respondents with theChamber Summons dated 30th April 2021, (ii) skeletal submissions on the said Chamber Summons (iii) a copy of this ruling and (iv) a hearing notice with fourteen (14) days of today’s date.

II.The Respondents are granted leave to file and serve their responses to theChamber Summons dated 30th April 2021 and skeletal submissions thereon within fourteen (14) days of service by the Applicant.

III.The Chamber Summons dated 30th April 2021 shall be heard  by email on21st June2021, and the mention date of 10th May 2021 is hereby vacated.

IV. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the Applicant’s Chamber Summons dated 30th April 2021 on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

V.All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to  the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comandasunachristine51@gmail.com.

VI. The service of pleadings and documents directed by the Court shall be by way of personal service and electronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division at judicialreview48@gmail.com with copies to asunachristine51@gmail.com.

VII. The parties shall also be required to file their respective affidavits evidencing service in the Judiciary’s e-filing system

VIII.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing by email on21st June2021.

IX.The Deputy Registrar ofthe Judicial Review Division shall send a copy of these directions to the Applicant by electronic mail by close of business on Friday, 7th May 2021.

X.  Parties shall be at liberty to apply.

6.      Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS  6TH  DAY OF MAY 2021

P. NYAMWEYA

JUDGE