Energy and Petroleum Regulatory Authority & another v Thirunga (Environment and Land Appeal E026 of 2026) [2026] KEELC 4552 (KLR)
The bottom line
#Kenya's energy regulator must pay over Kshs 10 million for demolishing a petrol station without the 21-day notice the law requires.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court was seized of jurisdiction to entertain and adjudicate upon the limb of the claim relating to malicious prosecution
- 2.Whether the respondent duly proved and established his claim
- 3.Whether the Learned Trial Magistrate erred in entering Judgment in favour of the respondent
Key legal issues
#Jurisdiction over the malicious prosecution limb
The trial magistrate, acting under delegated ELC jurisdiction, could not entertain a malicious prosecution claim, but the ground is moot because no award was made on that limb
A claim for malicious prosecution cannot be joined alongside an Environment and Land matter under delegated jurisdiction; however, the trial court made no ultimate findings and no award on malicious prosecution, so the relief was deemed declined and nothing turns on the jurisdictional objection.
Compliance with Section 91 of the Petroleum Act, Cap 308 before demolition
The 1st appellant did not comply; no 21-day notice was issued or served, and the alleged notice dated 19.06.2019 preceded the inspection said to have occurred on 20.06.2019
Section 91(1) requires a 21-day notice to obtain a permit before decommissioning. The 1st appellant's own witness conceded the notice was not produced in court, warranting an adverse inference. The purported notice was also anomalous in date and, in any event, did not conform to the statutory purpose, which is to allow the operator to regularise, not merely to close.
Reliance on the Mavoko SPM Misc. Criminal Application No. 108 of 2019 order
The order could not justify the demolition because the respondent was not a party to those proceedings
Orders made in proceedings to which a person was not a party cannot be deployed to demolish that person's property. The demolition without notice or an opportunity to be heard violated Articles 25(c), 40 and 50 of the Constitution and the right to fair administrative action under Article 47.
Proof of special damages (loss of assets and loss of income)
The respondent proved the special damages through expert-prepared annual reports and financial statements that were never impeached
Strict proof of special damages is contextual. The appellants did not cross-examine PW1 on the reports nor produce a contrary expert report; per the Supreme Court in Attorney General v Zinj Limited, absent a counter-report an appellate court has no basis to interfere with an award founded on expert valuation evidence.
Scope of the first appellate court's jurisdiction
A first appellate court must re-evaluate the evidence afresh but should defer to trial findings unless they are unsupported by evidence, perverse, based on misapprehension, or founded on a demonstrable error of principle
Relying on Odera v Machira and Kenya Urban Roads Authority v Belgo Holdings, the court restated the classic principles from Peters v Sunday Post: the appellate court may re-examine the evidence on a first appeal but interferes with trial findings only where no evidence supports them, they are perverse, or a demonstrable error of principle vitiates them.
Legal principles established
#- Where a magistrate exercises delegated jurisdiction under Section 26 of the Environment and Land Court Act, a malicious prosecution claim cannot be joined with an Environment and Land matter; but a relief not expressly granted is deemed declined, so no award on that limb is a nullity
- Section 91(1) of the Petroleum Act requires the licensing authority to issue and serve a 21-day notice before decommissioning an unpermitted facility, and the notice is a window to remedy the anomaly or obtain the permit, not to close
- A state instrumentality bound by the Constitution cannot arbitrarily deprive a person of property without due process; orders in proceedings to which a party was not joined cannot be deployed against that party
- Failure by a party to produce a document it alleged was issued permits an adverse inference against it
- Special damages must be strictly proved, but what constitutes strict proof depends on the circumstances of each case; unchallenged expert reports may suffice absent a contrary expert report
Court orders
#- 1.The Appeal dismissed
- 2.The Judgment of the Learned Trial Magistrate dated 12.02.2026 and the consequential decree affirmed
- 3.The award of damages shall be borne by the 1st appellant only and not the Honourable Attorney General (2nd appellant)
- 4.Costs of the appeal awarded to the respondent, to be borne by the 1st appellant
- 5.Costs to be agreed upon and in default taxed in the conventional manner
- 6.The orders of stay of execution issued on 24.03.2026 discharged
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court (Environment and Land list, Tigania)
- Tigania/CMELC No. E111 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over a decision of a magistrate's court (the judgment does not cite the enabling provision)
Relief refused
#Appellants' prayer to set aside the trial judgment and dismiss the respondent's suit
The court found no error in the trial court's decision; the demolition was unlawful
Costs
Costs of the appeal awarded to the respondent, to be borne by the 1st appellant (EPRA), to be agreed and in default taxed in the conventional manner
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
i. The Appeal be and is hereby Dismissed.
ii. The Judgment of the Learned Trial Magistrate dated the 12.02.2026, and the consequential decree be and are hereby Afirmed.
iii. However, and for the avoidance of doubt, the award of damages at the foot of the Judgement shall be borne by the 1st appellant only and not the Honourable Attorney General [2nd appellant].
the impugned demolition was not only unlawful, but also constituted a gross violation of the provisions of Article 40 [2] of the constitution, 2010.
Sufice it to state that no such notice was issued.
It is a State Instrumentality. It is bound by the Constitution, 2010.
Issues in the judgment
#Duplicate paragraph numbering: two successive paragraphs are numbered 78
The paragraph reproducing Article 40 of the Constitution is labelled 'Article 40 [3]' but reproduces clauses (1) and (2)
Typographical/dating anomaly in appeal grounds: 'Tigania Criminal Case Number E9456 of 2045'
Headnote-style opening numbered paragraphs recite the suit as if first-instance, but the judgment is an appeal; judgment never states the appeal case number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Energy and Petroleum Regulatory Authority & another v Thirunga (Environment and Land Appeal E026 of 2026) [2026] KEELC 4552 (KLR)", Case Analysis (2026). Appeal number not stated in judgment (appeal from Tigania CM ELC No. E111 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4552/eng@2026-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.