More than 3,000 victims of lead poisoning in Owino Uhuru have suffered a major blow after the Court of Appeal overturned the Sh1.3 billion compensation awarded to them three years ago.
In an 87-page judgment, appeallate judges Pauline Nyamweya, Stephen Kairu and Jessie Lessit allowed an appeal by the state and set aside the compensation awarded by the Environment and Land Court (ELC).
“We hereby set aside the orders granted by the Environment and Land Court at Mombasa that the sum of Sh1.3 billion be and is hereby awarded to the petitioners for personal injury and loss of life payable within a period of 90 days from the date of judgment and in default, the petitioners shall be at liberty to execute,” said the judges.
The judges instead remitted the issue of the compensation to be paid to the victims of Owino Uhuru for re-hearing before a different judge at the ELC in Mombasa from the one who heard the case, Justice Ann Omollo.
The rehearing will include the taking of additional evidence limited to the issue and assessment of the damages payable to the victims and taking into account the principles set out by the Court of Appeal.
Determine the extent of contamination
At the same time, the judges ordered and directed the National Environmental Management Authority (Nema) to determine the extent of contamination and pollution caused by the operations of Metal Refinery EPZ Ltd as Owino Uhuru Settlement within 12 months from the date of the judgment and to remediate the contamination and pollution in the affected areas.
Nema has also been ordered to restore the environment of the Owino Uhuru settlement and its ecosystem and to report regularly every three months to the Environment and Land Court in Mombasa on the progress made, for any consequential orders, until the restoration is satisfactorily completed.
The agency is to do this in consultation with all relevant agencies and private stakeholders.
The Court of Appeal set aside not only the billions awarded but also the responsibility apportioned to various government agencies sued in the matter.
The ELC had apportioned 40 per cent of the responsibility to Nema, 10 per cent each to the Ministry of Environment, Water and Natural Resources, the Ministry of Health and the Export Processing Zone Authority (EPZA), 25 per cent to the Metal Refinery EPZ and five per cent to the Penguin Paper and Book Company.
The Court of Appeal instead assigned 30 per cent responsibility to Nema, while Metal Refinery EPZ Ltd was assigned the highest responsibility of 40 per cent.
The Ministry of Water and the Ministry of Health were each assigned five percent responsibility, while EPZA and Penguin Paper and Book Company Ltd were each assigned 10 percent responsibility for lead poisoning.
The judges noted that all possible claimants needed to be identified, ascertained and compensated, both in the interest of justice, but also in the interest of proportionality and cost-effectiveness, to ensure that the case is not an open door for opportunists to make personal gain from the tragedy that befell the residents of Owino-Uhuru village.
“It was evident from the various reports produced in evidence that only a sample of the residents was tested for lead levels in their blood, and we appreciate the difficulties and costs involved in proving causation in injuries caused by environmental pollution and in particular in proving that all residents of Uhuru village were exposed to and injured by the activities of Metal Refinery EPZ Ltd,” they said.
While setting aside the award, the judges noted that the trial court failed to take into account various relevant factors and principles of law in the award of damages.
The judges also noted that the award of Sh700 million to Center For Justice Governance and Environment Action CJGE was not pleaded or proved, adding that the restoration of the contaminated land is a fairly technical exercise, which requires scientific methodologies and techniques which were not demonstrated by the residents and CJGEA, to justify the order and award.
The judges also noted that the billions were awarded as compensation for the nine petitioners and persons claiming through them who were not identified.
“It is notable in this respect that the object of compensation is to remedy a wrong that a person has suffered, and the victim must of necessity be identified for purposes of causation and enforcement of the remedy,” they said.
Utter shock and dismay
While reacting to the judgment, Center for Justice Governance and Environmental Action (CJGEA) executive director Phyllis Omido said the victims have received the verdict with “utter shock and dismay”.
In a joint statement with Muslim for Human Rights, the activist castigated the appeals court for shifting the goal post to Metal Refinery EPZ by mischievously apportioning it 40 percent liability even though state agencies facilitated its exit.
“The move to send us back to a lower court is an open admission of the incompetence behind the judgement issued. We, therefore, condemn the attempt to deny the victims of Owino Uhuru Justice and decry the judgment in full,” she said.
Ms Omido has decried that remitting the matter for rehearing of the damages at the ELC court will make the community relive the ordeal and would bear more costs to them.
Nema and EPZA appealed against the compensation, which would have seen the government pay the money to the victims.
The government agency defended itself, stating that in 2007, smelting of used lead batteries was a new industry in Kenya and it was important to have a trial run necessitating the company to operate.
The agency did not see anything wrong with its action, adding that Article 69(F) mandates it to set up environmental monitoring systems, hence allowing the trial run to be done.
The award was made in 2020 after Justice Omollo found that the slum dwellers suffered irreversible health conditions before ordering the state to pay the victims millions.
Ms Omido's organisation and other victims of the lead poisoning filed the case in 2014.