The High Court has issued orders to the Director of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP), prohibiting further incarceration of National Environment Management Authority (NEMA) staff linked with the Embakasi gas explosion.
Issuing the ruling on Wednesday, May 28, 2025, Justice John Chigiti also barred the DCI and DPP from detaining and charging the five, including Senior Environment Officer Joseph Makau, David Walunya, Marrian Kioko, Lynette Cheruiyot and Isaac Kimitei.
“An order of prohibition is hereby issued against the Director of Criminal Investigations and the Director of Public Prosecutions, prohibiting the continuation of the miscellaneous criminal proceedings in Nairobi Chief Magistrates at Milimani,” part of the judgement read.
Further, Justice Chigiti stated that the four officials are protected by law from prosecution arising from their actions or decisions applied in their official capacity within the course of their employment under the Environmental Management and Coordination Act.
Unlawful detention
Delivering the judgement, the judge also termed the detention of the five staff by the DCI as unlawful.
“An order of Certiorari is hereby issued bringing into this court the decision of the Director of Criminal Investigations to detain the Ex parte applicants (NEMA staff) and be quashed by this honourable court,” Justice Chigiti ruled.
Makau, a senior officer stationed at the NEMA headquarters within South C, argued that he enjoys statutory immunity from criminal liability, which was breached, given that his conduct on the matter is limited by virtue of the execution of my duties under employment only.
Additionally, he stated that section 66 of the Environmental Management and Coordination Act shields him from personal liability in all cases of issuance of an environmental impact assessment licence.
Embakasi gas explosion
On February 1, 2024, a gas explosion incident occurred at Mradi in Embakasi, within Nairobi County, leading to the arrest of the NEMA staff on February 6, 2024.
The five were remanded at Embakasi police station and Capitol Hill police station before being arraigned at the Chief Magistrates Court in Nairobi.
At the Milimani Law Courts, the prosecution sought custodial orders for 21 days at the Embakasi police station within Nairobi County, under Section 36A of the Criminal Procedure Code and Article 49 of the Constitution.
The Magistrate Court granted the prosecution the 21 days they had requested for and the five were detained pending completion of investigations.
