Kenyan Court Upholds Tribunal's Decision in Favor of Rihal Energy

The Energy and Petroleum Regulatory Authority (Epra) has lost an appeal to overturn a tribunal decision that ordered the release of 407 gas cylinders seized from Rihal Energy Company Ltd in Narok, Kenya. The High Court upheld the Energy and Petroleum Tribunal's decision, finding that Epra failed to prove alleged regulatory offences against Rihal Energy. The dispute arose from an enforcement exercise at Rihal Energy's liquefied petroleum gas (LPG) facility on October 19, 2024.

During the enforcement exercise, Epra officers allegedly found assorted cylinders bearing different brand markings being loaded onto two motor vehicles. The regulator seized the cylinders, sealed the premises, and suspended Rihal Energy's filling licence for three months, imposing two fines of Sh100,000 for separate alleged contraventions. Rihal Energy challenged the decision before the Tribunal, arguing that some of the cylinders were held under a reciprocal arrangement among members of the Energy Dealers Association (EDA).

The tribunal set aside Epra's determination on August 21, 2025, and ordered the release of 254 proclaimed cylinders and 153 EDA cylinders. Epra appealed the decision, arguing that the tribunal had misinterpreted the law, ignored documentary evidence, and wrongly interfered with its statutory enforcement mandate. The regulator maintained that Rihal Energy was licensed to store and fill Raha-branded cylinders only and that its officers had found cylinders belonging to different brands at the facility.

In dismissing the appeal, the High Court found that Epra's inventories did not adequately distinguish between the proclaimed cylinders and those held under the EDA arrangement. The photographs allegedly taken during the enforcement exercise had also not been produced before the tribunal. The judge said Epra was required to demonstrate a sufficient evidentiary connection between Rihal Energy's conduct and the prohibited acts forming the basis of its determination.

The court acknowledged discrepancies in Epra's inventories, which recorded 253 cylinders along a perimeter wall, one on motor vehicle registration number KCY 265S and 131 on motor vehicle registration number KCY 709Y. These figures did not correspond with the tribunal's order for the release of 254 proclaimed cylinders and 153 EDA cylinders. However, the judge said the discrepancy did not, by itself, establish that Rihal Energy had committed regulatory offences.

The judge clarified that the release order did not conclusively determine ownership disputes between Rihal Energy and third-party brand owners. The court upheld the tribunal's judgment of August 21, 2025, including the order directing Epra to release the 254 proclaimed cylinders and 153 EDA cylinders to Rihal Energy. The regulator had argued that the tribunal's description of enforcement officers as having acted "like cowboys" and "like criminal gangsters" suggested bias.

The court's decision marks a significant development in the case, with implications for Epra's enforcement powers and the LPG industry in Kenya. The regulator must now release the seized cylinders and reassess its enforcement procedures to ensure they are fair and proportionate. Rihal Energy's licence to store and fill LPG cylinders remains valid, and the company can continue to operate its business.

Key points

• The High Court upheld the Energy and Petroleum Tribunal's decision, ordering Epra to release 407 gas cylinders seized from Rihal Energy Company Ltd.
• Epra failed to prove alleged regulatory offences against Rihal Energy, including illegal cross-filling of cylinders.
• The court's decision has implications for Epra's enforcement powers and the LPG industry in Kenya.