What you need to know:
- In June, Appeal Court judges overturned a decision to award the victims Sh1.3 billion in compensation
- In 2020, the environmental court agreed that the Owino Uhuru village dwellers in Mombasa County suffered irreversible health conditions and ordered the state to pay them
The Owino Uhuru village lead poisoning victims, in Mombasa County, have taken their battle with the government over Sh1.3 billion compensation to the Supreme Court.
In their appeal to the country's apex court, the victims want the Court of Appeal's decision to deprive them of the compensation overturned, arguing that there is sufficient evidence that they suffered health complications.
“We are entitled to an award of compensation for injury to health as a result of proven environmental pollution,” they said.
They have complained that the Court of Appeal was wrong to order a retrial of the claim to prove injury to the affected persons when there was sufficient evidence before it, including that of medical experts, proving the health complications they had suffered.
The appellants also criticised the Court of Appeal for failing to award them compensation and for ordering that all victims of the pollution be identified as a basis for compensation.
“The appellate court breached the constitution by denying us our right to access justice by ordering a retrial where we will shoulder the onerous burden of calling over 4,000 people to testify in court,” they said.
The appellants have also accused the Court of Appeal of interfering with the way in which the trial court apportioned responsibility, and of doing so without strict adherence to the principles underpinning such action.
“…Apportioning a larger share of liability upon a company which has been allowed to flee the jurisdiction of the court and another that is moribund, and hence making a large part of any award that may be made to the appellants non-realisable in actual terms,” they said.
The appellants have argued that the Court of Appeal's position was in line with the findings of the trial court, but they were shocked that the court ultimately set aside the damages on the grounds that not all of those affected had been named in the proceedings.
According to the victims, the issue of pollution and the number of people affected was sufficiently proven and accepted as such, and therefore the Court of Appeal erred in not awarding damages.
“It is our submission that having found for a fact that there was indeed a release of toxic gases, fumes, and liquids into the environment at Owino Uhuru Village, the court ought to have made an award of damages for the infringement of our right to a clean and healthy environment,” they said.
In June, three Appeal Court judges—Pauline Nyamweya, Stephen Kairu and Jessie Lessit—overturned the Environment and Land Court's (ELC) decision to award the victims Sh1.3 billion in compensation.
The judges also overturned a second aspect of the ELC judgment, which ordered the payment of Sh700 million to the Centre For Justice Governance and Environment Action (CJGE) for the remediation of the entire village of Owino Uhuru, which was severely affected by lead poisoning.
The appellate judges found that the billions of shillings were awarded as compensation for the nine applicants and unidentified persons claiming through them, and that the ELC court had failed to consider several relevant factors and legal principles in awarding damages.
While acknowledging the evidence presented to demonstrate the extent of the harm suffered, the judges held that the actual victims must be identified for the purposes of causation and enforcement of the remedy.
The judges argued that identification was necessary to ensure that the case was not an open door for freeloaders and opportunists to profit from the tragedy that befell the residents of Owino Uhuru village.
As for the Sh700 million awarded to CJGE for environmental restoration and clean-up, the appeal judges ruled that the organisation and the victims had not requested such an award.
ELC Judge Ann Omollo awarded the victims billions of shillings in 2020 after finding that the slum dwellers had suffered irreversible health conditions before she ordered the state to pay the money to the victims.
However, the victims have castigated the Court of Appeal for upholding the findings of the trial court (ELC) by apportioning liability to the private and government agencies sued, but overturning the compensation aspect.
They have told the Supreme Court that the CoA agreed with their case in terms of the health complications they suffered as a result of lead poisoning and went on to apportion liability, but still denied them compensation.