Owino Uhuru dwellers to wait longer for payout in lead poisoning case

Owino Uhuru slum lead poisoning case

Owino Uhuru slum dwellers demonstrate on February 1, 2022 over a long wait for the Sh1.3 billion in compensation awarded by a court two years ago. They will have to wait another five months to find out whether they will be paid. File | Nation Media Group

Photo credit: File | Nation Media Group

Victims of lead poisoning in the Owino Uhuru slum in Changamwe, Mombasa County, will have to wait another five months to find out whether they will be paid Sh1.3 billion in compensation awarded by a court two years ago.

This will allow the Court of Appeal to analyse arguments for and against the compensation as submitted by the state and the victims.

The Environment and Land Court in Mombasa in 2020 ordered the state to pay the billions after finding that the slum dwellers suffered irreversible health conditions while others died.

But the state, aggrieved by the award, appealed to overturn the decision.

In their final submissions, the victims urged the Court of Appeal to find that the government agencies and private companies sued in the matter were properly found liable for the pollution in the slum that affected their health.

Documents

They argue that all documents tabled in court prove that the environment watchdog Nema allowed Metal Refinery (EPZ) Ltd to operate without first obtaining the necessary licence.

“The community at Owino Uhuru not only brought out their complaints on the pollution that was taking place, but they also went about holding demonstrations on the streets and engaging Nema offices,” they said through their advocate, Mr Charles Onyango.

They say Nema knew about the pollution but failed to take action until the slum dwellers started experiencing the effects of the environmental contamination.

“Instead of sanctioning the company, Nema went further and issued it with a licence even after knowing the company has been actively polluting the environment,” said the advocate.

Hold state agencies liable

Mr Onyango told the appellate judges that the government agencies were enablers of the actions of the companies that polluted the slums and, therefore, must be held liable.

“Not holding them liable on account of the polluters-pay principle will set a bad precedent for such cases in the country,” added the advocate.

Nema argued that in 2007, the smelting of used lead batteries was a new industry in Kenya, and it was important to have a trial run that allowed the company to operate.

The agency argued that it is mandated by Article 69(f) of the Constitution to set up environmental monitoring systems, which is why they allowed the trial run to be done.

In the judgment delivered by the Environment and Land Court, the state was ordered to clean up the affected area or pay a fine of Sh700 million.

But Nema protested, arguing that it is against public policy as NGOs have no constitutional or statutory obligation to be accountable for public funds.

“The Sh700 million allocation was not based on any arithmetic and as a matter of fact, they have obtained a quotation of 83 million from an expert firm based in Canada for the same clean up,” Nema submitted.

Nema’s mandate

The Export Processing Zone Authority (EPZA), also sued in the case, distanced itself from the matter, noting that the mandate to determine whether a project will be detrimental to the environment lies with Nema and was performed by the agency.

“Nema approved the project. This was confirmation enough for EPZA that the project would not be detrimental to the environment thus [it was] erroneous for the trial court to hold that the authority violated the law when it issued the licence," the authority said.

It also argued that there is no requirement under Section 23 of the EPZA Act that the authority obtain the EIA licence from the project proponent before issuing an EPZ licence.

“The trial court allocated 10 per cent liability to the authority, which was excessive. If the authority was liable for issuing the licence, then that error was only for one year,” it said.

The appeal was lodged by Nema and EPZA as they protested against the liability and the award made by the Environment and Land Court.

Setback for affected families

The decision by the state agency to appeal against the award came as a setback for the affected families, who have been waiting patiently after losing their loved ones and suffering irreversible health complications due to exposure to poisonous substances.

The appellate court will review what the government agencies said were incorrect interpretations by the Environment and Land Court.

The government was ordered to shoulder 70 per cent of the total award because its agencies were found to have failed to discharge their duties as required by law.

In the ruling, Nema had 40 per cent culpability for failing to discharge its mandate, thereby exposing residents to the negative effects of poison from the factory.

Metals Refineries (EPZ) Ltd is to pay 25 per cent of the money awarded because it was the direct source of the poison while Penguin and Book Company was directed to shoulder five per cent for leasing out its land to the factory.


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