John Maigua Murigi Limited v Maxxis Company Limited & 3 others

with zoning laws, environmental requirements, and safety standards as prescribed under the EMCA and Energy (LPG Operations) Regulations. That no proper public participation, Environmental impact assessment, or risk analysis was disclosed to the local community despite raising the concerns to the relevant departments. Furthermore, its continued presence has caused public anxiety, particularly noting that the 1st respondent’s facility located in Embakasi, Mradi area exploded barely a year ago on the 1 st of February 2024. 2. The petitioner therefore seeks the following orders; “ a) A declaration that the continued operation of the 1st respondent contravenes rights to clean and healthy under Article 42 of interest environment the public the Constitution. b) A mandatory order compelling Maxxis Company Limited to immediately dismantle and remove the LPG facility located at Sweetwaters, Nanyuki. ELCLPET NO. E004 OF 2025 [RULING] Page 2 of 14

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c) A declaration that the continued presence of the said without facility lawful within a populated environmental, area safety and zoning approvals violates the Constitution. d) An order directing EPRA and NEMA to disclose all environmental assessments, safety audits, licenses, and compliance documentation issued in relation to the facility. e) An order directing the County Government of Laikipia to revoke any approvals or permits granted for the facility’s siting.” 3. Two preliminary Objections have since been filed which are the subject matter in this ruling. The 1 st one is dated 1.12.2025 filed by the 1st respondent while the 2 nd one is dated 24.2.2026 filed by the 2nd respondent. 4. On 9.6.2026, the court gave directions for the hearing of the two Preliminary Objections through written submissions. The Preliminary Objection dated 1.12.2025 ELCLPET NO. E004 OF 2025 [RULING] Page 3 of 14

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5. The following grounds have been raised in the above mentioned Preliminary Objection; “ 1. The petition is incurably defective as the petitioner has not cited specific provisions of the Constitution alleged to have been denied, violated and/or contravened. As such the petition does not meet the threshold set out in the case of Anarita Karimi Njeru V Republic (1979) eKLR. 2. The petition is incurably defective as the petitioner has not cited specific provisions of the Constitution alleged to have been denied, violated and/or contravened. As such the petition contravenes the provisions of Rule 10(1) and 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules).” The Preliminary Objection dated 24.2.2026 ELCLPET NO. E004 OF 2025 [RULING] Page 4 of 14

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6. The following grounds have been raised in the above mentioned Preliminary Objection; “ 1. Pursuant to Section 36 (1), (4) & (5) of the Energy Act, Cap 314, this court lacks jurisdiction to adjudicate over this matter. 2. This court lacks the requisite jurisdiction to issue the orders sought in the petition dated 7th August 2025. 3. In the premises, the petition, in so far as it relates to the 2nd respondent, is incompetent, frivolous, vexatious and an abuse of the process of this Honourable Court and ought to be struck out and or dismissed with costs to the 2nd respondent.” 7. No response was filed by the petitioner in regard to the two Preliminary Objections. 8. Further, it is only the 2 nd respondent who filed submissions which are dated 19/6/2026. It reiterates the averments set out in its Preliminary Objection stating that the court lacks jurisdiction to hear the matter. The 2 nd respondent argues ELCLPET NO. E004 OF 2025 [RULING] Page 5 of 14

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that the dispute falls squarely within EPRA’s statutory regulatory mandate. 9. It also cites the provisions of Section 75 of the Petroleum Act Cap 308 Laws of Kenya which subjects petroleum undertakings to licensing and regulatory oversight. Thus licensing of an LPG facility is a specialised regulatory process involving technical, environmental, safety, land–use and public-interest considerations entrusted by parliament to the designated regulatory authorities. 10. The 2nd respondent thus contends that the petitioner’s complaints regarding the location, safety, environmental compliance and licensing of the LPG facility therefore concern matters falling directly within that statutory regulatory framework. 11. I have considered the rival arguments relating to the two preliminary objections. The fundamental nature of a preliminary objection was given in Mukhisa Bisquits Manufacturing Co. Ltd Vs. West End Distributors (1969) E. A 696 as follows; “A preliminary objection consists of a point of law which has been pleaded or which arises by ELCLPET NO. E004 OF 2025 [RULING] Page 6 of 14

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clear implication of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court.” 12. The question falling for determination is whether this petition should be struck out on account of 1) failure to meet the constitutional threshold of a petition and 2) want of jurisdiction. 13. On the 1st issue, I find that the 1 st respondent has rightly cited the legal position set out in the case of Anarita Karimi Njeru v Republic ( 1979) eKLR, that a claimant in a constitutional petition should frame the pleadings with reasonable precisions, citing the Articles of the Constitution which have been or are likely to be violated. 14. In the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, the court stated that; “We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In ELCLPET NO. E004 OF 2025 essence, due [RULING] process, substantive Page 7 of 14

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justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point”. 15. In the case at hand, I find that the fundamental issue raised by the petitioner relates to a right to a clean and healthy environment under Article 42 and 70 of the Constitution. His concern is that an LPG storage and refilling station has been set up in a densely populated area. This far, I find that there is a clear and unmistakable plea ELCLPET NO. E004 OF 2025 [RULING] Page 8 of 14

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advanced by the petitioner, thus the Preliminary objection dated 1.12.2025 is not merited. 16. On jurisdiction, I find that at paragraph 15 of the petition, it is pleaded that the 1st respondent is operating an LPG storage and refilling station in a densely populated area contrary to the provisions of the Energy Act, 2019, The Energy and Petroleum Regulatory Authority (EPRA or the Authority), the Petroleum Act, 2019 and the Petroleum (Liquefied Petroleum Gas) Regulations, 2019 (The Regulations). Thus the petitioner is recognizing that there is a legal framework governing the establishments of the business mentioned by the petitioner. 17. The Energy and Petroleum Regulatory Authority (EPRA) is established under Section 9 of the Energy Act and it handles primary operational complaints, licensing disputes, and regulatory compliance issues between consumers, utility providers (such as KPLC), and licensees under Sections 10–23. In particular, section 11 (a) gives EPRA powers to; ELCLPET NO. E004 OF 2025 [RULING] Page 9 of 14

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“issue, renew, modify, suspend or revoke licences and permits for all undertakings and activities in the energy sector” 18. Section 24 provides for appeal mechanisms regarding the decisions of EPRA as follows; “(1) A person aggrieved by a decision of the Authority may appeal to the Tribunal within thirty days of receipt of the decision. (2) Notwithstanding subsection (1), the Tribunal may entertain an appeal after the expiry of the thirty day period if it is satisfied that there was sufficient cause for not filing it within that period”. 19. While section 25 establishes the tribunal and provides that; “ There is established the Energy and Petroleum Tribunal, hereinafter Tribunal", for the referred purpose of to as "the hearing and determining disputes and appeals in accordance with this Act or any other written law”. ELCLPET NO. E004 OF 2025 [RULING] Page 10 of 14

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20. Thus the tribunal has both original and appellate jurisdiction to hear disputes. 21. This far, it is clear that the issues raised by the petitioner can adequately be determined through the laid down statutory mechanisms under the Energy Act. 22. In the case of Dhow House Ltd v Kenya Power and Lighting Company (Constitutional E058 of 2021) Petition [2022] KEHC 11840 (KLR) (19 August 2022) (Ruling), the court while striking out a Constitutional Petition relating to alleged inflated electricity bills stated as follows; “The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute ELCLPET NO. E004 OF 2025 [RULING] Page 11 of 14

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to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance”. 23. While in Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others [2020] eKLR , the Supreme Court of Kenya stated that; “Judicial abstention, as with judicial restraint, is a doctrine not founded in constitutional or statutory provisions, but one that has been established through common law practice. It provides that a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate institutions legislatively and mechanism. mandated Emphasize added”. ELCLPET NO. E004 OF 2025 [RULING] Page 12 of 14

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24. This far, I come to the conclusion that though this court has the mandate to deal with issues of a clean and healthy environment the doctrine of Constitutional avoidance, Judicial abstention as well as judicial restraint is applicable in this matter. In the circumstances, I find that the Preliminary Objection dated 24.2.2026 is found to be merited. 25. The final orders are as follows; 1) The Preliminary Objection dated 1.12.2025 is dismissed. 2) The Preliminary Objection dated 24.2.2026 is allowed. 3) The Petition dated 7.8.2025 is hereby struck out. 4) On costs, I have taken into consideration that the petition was filed in public interest. Thus each party shall bear their own costs of the Petition and the Preliminary Objections. ELCLPET NO. E004 OF 2025 [RULING] Page 13 of 14

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DATED, SIGNED AND DELIVERED AT NANYUKI THIS 23RD DAY OF SEPTEMBER, 2026 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Yaru/Consolata – C/A Petitioner in person – absent M/s Rop for 2nd respondent M/s Wangu h/b for Gichuhi for 1st respondent ELCLPET NO. E004 OF 2025 [RULING] Page 14 of 14

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