3,000 victims, 20 deaths and 10-year wait: Big win in Sh1.3bn Mombasa lead poisoning compensation case
Residents of Owino Huru village in Mikindani protest outside a lead manufacturing company on Mombasa-Nairobi highway on September 27, 2011.
What you need to know:
- According to the court, Nema had the opportunity to avert the discharges from the factory but failed.
- The original award of Sh1.3 billion, which has now been reinstated, had been made by Justice Ann Omollo in 2020.
More than 3,000 victims of the Owino Uhuru lead poisoning have won big after the Supreme Court confirmed a decision directing the government to compensate them with Sh1.3 billion for loss of life and health injuries suffered more than 10 years ago.
The Apex Court judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu, William Ouko and Isack Lenaola ruled that the Court of Appeal (CoA) arrived at a wrong conclusion in its findings that the persons who suffered health injuries in the slums were not identifiable.
“For avoidance of doubt we affirm the sum of Sh1.3 billion issued by the trial court on account of general damages for loss of life and personal injury. The amount is not only for the benefit of the 11 appellants but for the 450 households and residents of Owino Uhuru Village which encompasses an approximate 13.5 acres,” the judges said in a Judgment delivered on December 6.
The judges ruled that Environment and Land Court (ELC) that issued the award arrived at the correct amount in terms of compensation for personal injury and loss of life and that the amount was neither excessive nor did the court consider an irrelevant factor.
Also, the judges ruled that there was evidence of direct health effect and loss of life suffered by the residents as demonstrated from the medical reports tabled before the court.
“The effects to humans and the environment was, therefore, not a one-off event but a continuous violation that persisted for more than seven years when Metal Refinery was operating and subsequently thereafter,” said the judges
The Judges also said that the appellants, who included Phyllis Omido presented evidence and proved to the satisfaction of the ELC court that the village of Owino-Uhuru consisted of a class of 3000 people clustered in 450 households.
The ELC record shows that at least 20 persons died as a result of lead exposure.
The judges also set aside the Court of Appeal’s determination on restorative damages and reinstated the Sh700 million issued by the ELC Court, being an award to be issued to Centre for Justice Governance and Environmental Action (CJGEA) to restore the environment in the event the National Environment Management Authority (Nema) and other government agencies fail to abide by the court’s directive.
The judges noted that the CoA appeal erred in dismissing the restorative orders issued by the ELC and the award of Sh700 million in default since it was specifically pleaded by the victims.
“We however remit the matter back to the ELC and direct it to take into account any restorative measures undertaken and issue further directions thereafter,” they said
The Apex court judges also noted that they did not find an reason to disturb the CoA’s finding on liability of the government agencies and the private companies sued in the case.
The CoA had apportioned Nema 30 per cent responsibility while Metal Refinery EPZ Ltd was apportioned the highest responsibility of 40 per cent.
The Ministry of Water and that of Health were apportioned five percent responsibility each, while Export Processing Zones Authority (EPZA )and Penguin Paper and Book company ltd each have 10 per cent responsibility for the lead poisoning.
The Supreme Court Judges noted that they are in agreement with the CoA’s findings that that EPZA was not only in direct violation of Article 69 of the Constitution and Section 23 of the EPZ Act, but also assumed the legal risk and responsibility for any shortcoming by Nema in its process of issuance of the Environment Impact Assessment (EIA) license to Metal Refineries.
“Despite this huge mandate, it is discernable that Nema was negligent in the conduct of its duties in the present case or as the ELC held, Nema’s actions assisted Metal Refinery in breaching the law instead of holding them to account,” said the judges.
The judges also noted that there was no doubt that Nema’s actions and inactions provided the casual link between Metal Refinery’s negligence and the injury occasioned to the slum dwellers.
According to the court, Nema had on numerous occasions the opportunity to avert the discharges from the factory but it clearly failed on its mandate and this led to the unwarranted suffering occasioned to the residents of Owino-Uhuru Village.
“We therefore find that the CoA was right in holding that Nema bore a greater responsibility. Nema and EPZA were the main actors in so far as the cause of deleterious activities were concerned with the liability of the other actors being either passive or reactive in relation to the pollution,” said the judges
The Apex also noted that the temporary closures by Nema and the Health ministry’s actions in treating the slum dwellers did not equally avail much in mitigation.
Both EPZA and the slum dwellers appealed to the Apex court against the CoA decision that they felt went against them.
The slum dwellers asked for the entire CoA judgment be set aside and in its place an order be issued affirming the judgment of the ELC while EPZA sought for the setting aside of the orders finding it 10 per cent liable and substituting the same with an order dismissing the petition.
Nema also asked the court to review or set aside the CoA judgment apportioning to it liability at 30 per cent for violation of the dwellers constitutional right to clean environment.
But the court dismissed EPZA and Nema’s appeal while allowing that of slum dwellers.
Last year, CoA judges Pauline Nyamweya, Stephen Kairu and Jessie Lessit had allowed an appeal by the state, and set aside the compensation, as had been awarded by ELC in 2020.
The Judges instead remitted the issue of the compensation payable to the victims for rehearing before a judge at the ELC at Mombasa.
The rehearing was include the taking of additional evidence limited to the said issue and assessment of damages payable to the victims, and taking into account the principles set out by the appellate court.
While setting aside the award, the judges noted that ELC failed to take into account various relevant factors and principles of law in the award of damages. Nema and EPZA appealed against the compensation.
The original award of Sh1.3 billion, which has now been reinstated, had been made by Justice Ann Omollo in 2020 after she found that the slum dwellers suffered irreversible health conditions before ordering the state to pay the victims the billions.
Ms Omido's CJGEA and other victims of the lead poisoning filed the case in 2014.
