The owner of the Embakasi killer gas plant Derrick Kimathi and three NEMA officials have been detained at Capitol Hill Police Station pending a court ruling on Wednesday.
The three NEMA officials are Joseph Makau, David Ong'are and Marrian Kioko.
The court is going to rule on whether the three will be detained for 21 days pending the conclusion of the probe into the matter.
The respondents' counsel vehemently opposed their detention saying the fundamental rights of their clients were being violated.
They based their arguments on the presumption of innocent until proven guilty and that the four may end up not being charged after the investigations
The four were on Tuesday arraigned before Principal Magistrate Dolphina Alego with the state seeking detention orders pending completion of investigations.
The 21 days sought is set to allow the Directorate of Criminal Investigations to finish investigations on cases of murder, conspiracy to commit a felony, negligent act causing harm and abuse of office.
It is alleged that the offences were committed on diverse dates between January 1, 2020, and February 2, 2024, where through negligence, an explosion occurred within Maxxis Energy Nairobi LTD within Embakasi, Nairobi.
Investigation Officer Isaac Tenei told the court that there is fear of the respondents interfering with witnesses and them being a flight risk.
He said other suspects are yet to be identified.
"After their arrest, the respondents informed the applicant's investigators that there are other suspects who are yet to be identified and traced for statement recording. In that case, releasing respondents at the moment will jeopardise investigations where the investigators have not been able to identify all of them," Tenei's affidavit reads in part.
He also said in some aspects of the investigations, they might need to rely on the respondents to assist in concluding the investigations and arresting the other suspects.
On their part, the prosecution counsel argued that the lives of the four might be in danger considering the loss of lives, properties and injured victims from the Embakasi fire.
The explosion has so far resulted in the loss of six lives with over 300 still undergoing treatment in different hospitals in Nairobi.
"The lives of the four respondents are in danger. That should be sufficient reason to keep them in custody for their safety," the state counsel said.
She added that the matter was delicate considering that they needed to balance between the rights of the victims and those of the respondents.
They also noted that the matter is one of public interest and it needs to be expedited.
In their submissions, however, the respondents' counsels opposed the detention, urging the court to not grant the orders.
Kimathi's lawyer Wandugi Kirathe said the state's application was misconceived and an abuse of court proceedings.
He poked holes into the application saying it is not supposed by any clear provision of the law, as Article 49(1)(f) under which it is presented to the court, is on bond and bail rights.
"The state came invoking this, which is completely out of the question. The application lacks any legal provision to support it," he said urging the court to reject it.
He went on to argue that Chief Investigator Tenei did not show the court or the respondents that the investigations can only be done when they are in custody.
He also argued that there was no tangible evidence in the application, save for the affidavit, which he noted is a general disposition.
"No compelling reason to justify extending these orders for them or suppressing the constitutional rights of the respondents," Wandugi said.
Makau's lawyer Kavita Mwanzia asked the court to let his client go as the probe continued, stating that they know his home and he is no risk flight.
He said the NEMA official was arrested at his home on February 4, at around 10pm, and held for 24 hours, an action he termed as a violation of Makau's rights.
He argued that the state was not prepared to even charge the suspects and should not seek to hold them.
Mwanzia told the court that the man suffers from ulcers and the condition at Embakasi Police Station where he was held before the arraignment was not considerate.
"I urge this court to find the application unmerited and dismiss it. In the alternative, this court is inclined to give the application, take into consideration the condition of the respondent and give reasonable bond terms," he said.
In Ong'are's case, the counsels argued that the man was a law-abiding citizen who was willing to cooperate with the investigating agencies to conclude the probe.
They also revealed that he is unwell, only relaying the nature of his illness to the court and asking it to consider the same in its verdict.
Counsel Duncan Okubaso representing Kiokio stated that the state needed to show that its prayer was made in good faith.
Offering an alternative to the 21-day detainment, he told the court that other measures could be taken to achieve the same objectives of the investigations.
These, he said, include the respondents reporting to the Investigating Officer twice or week or in accordance with the time the court directs.
"Your Honour, they can submit their passports to court and keep off their officers unless when asked by the IO," Okubaso said.