AGOL Wants Application for Conservatory Orders against it Dismissed

By The COAST Reporter

Email, thecoastnewspaper@gmail.com

African Gas and Oil Company Ltd (Agol) wants an application seeking to have it temporarily restrained from using a parcel of land as an oil and gas landing site dismissed.

Agol, which is associated with Mombasa businessman Mohamed Jaffer, says the application by Mr John Onunga has no merit, is frivolous and an abuse of the court process.

In the application, Mr Onunga wants a conservatory order issued restraining Agol from using the parcel of land, Kilindini Bay Mangrove area, as an oil and gas landing site, or point docking vessels and discharge of any oil and gas or points of conveying oil and gas from sea vessels to the mainland deposits/using the infringed land in whatsoever manner.

Mr Onunga seeks to have the orders issued pending hearing and determination of the application and a petition.

He has challenged, in his petition, a special license granted to Agol to use 23.1 hectares of forest land within Kilindini bay mangrove area in Mombasa Forest zone by the Kenya Forest Service (KFS).

Mr Onunga says that KFS granted (Agol) the use of the forest land for a period of 30 years.

Through an affidavit of its legal officer filed in court, Agol says that it has invested substantial sums of finances towards its business, currently employs over 100 employees and relies on the operations running through its licensed area.

It says that should a conservatory order be issued as sought by the petitioner (Mr Onunga), then it will have to halt its business leading to loss of jobs to thousand of its employees and loss of its revenue.

The company says that it is a major stakeholder in the energy sector and a key player in the importation and storage of LPG in the country.

“Any injunctive orders issued against it (Agol) will have negative impact not only to it but the public interest at large,” the affidavit states in part.

Agol says it was granted a special use licence for 30 years over the portion of Kilindini Bay mangrove area located at Mombasa Forest Zone by KFS to construct a common user facility and related LPG terminal infrastructure.

It says that the special use license was issued pursuant to determination by KFS that the primary purposes of the activities allowed were in the public interest and would not be destructive to mangrove forests.

The company says that the special use license issued by KFS does not in any way amount to allocation of public land, create a lease or transfer the rights over the forest to the respondent.

“The first respondent (Agol) in undertaking the construction of its facilities, duly applied and obtained necessary approvals from the fourth respondent (National Environment Management Authority) in accordance with the applicable NEMA regulations,” part of the affidavit says.

Mr Onunga says that on or about March 21, 2012, KFS granted a special licence to Agol to use 23.1 hectares of forest land within the Kilindini bay mangrove area in Mombasa for a period of 30 years.

He claims that the issuance of the license was illegal due to Proclamation No. 42 of 1992 declaring it to be part of the coastal mangrove swamp forest and prohibits any human activities.

“The first respondent use of the said parcel of land has disturbed the entire mangrove eco-system as both growth and development of flora and fauna is being hindered by the activities of the first respondent and resultant oil spillage,” the application states in part.

Mr Onunga, in his petition, says that Agol was granted the land to construct, install, operate, maintain, repair and replace petroleum products pipeline, construct storage tanks, jetty and other offloading structures and to construct access road, grading and maintenance within the forest area.

He claims that by an addendum dated June 8, 2023, KFS further granted a special use license to Agol to further use 17.2 hectares of forest land within Kilindini bay mangrove area.

“The land licenced to the first respondent is within Mombasa forest reserve and forms part of the coastal mangrove swamp forest that was gazetted via proclamation which is still in force since it has never been revoked,” Mr Onunga says in his petition.

The petitioner wants a declaration that KFS has no power or mandate to grant any rights over public land including government forests and specially protected areas either by way of a conveyance, lease, license or otherwise.

He also wants a declaration that the special license granted by KFS to Agol to use the forest land within Kilindini bay mangrove area in Mombasa Forest zone for a period of 30 years and a further special use license is unconstitutional, tainted with illegality and thus null and void.

Mr Onunga claims that KFS has no power or mandate to grant any rights over public land including government forests and specially protected areas either by way of conveyance, lease, license or otherwise to Agol since the mandate is bestowed to the National Land Commission (NLC).