Win For Owino Uhuru Lead Poisoning Victims
Win For Owino Uhuru Lead Poisoning Victims
Justices Mohamed Ibrahim, Smokin’ Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko said the payout was not excessive, further confirming the availability of sufficient evidence relied on to grant the award.
The Environment and Lands Court (ELC) they said arrived at the correct amount in terms of compensation for personal injury and loss of life.
They emphasized that the amount was not only for the benefit of those who had instituted the case in court but also for the 450 households and residents of Owino Uhuru Village which encompasses approximately 13.5 acres.
In 2020 Justice Anne Omollo of the Lands Court issued a global award of Sh1.3 billion for loss of life and personal injury.
The court also directed the Export Processing Zone Authority (EPZA) and NEMA to clean up the soil, and water and to remove any waste deposited within Owino Uhuru village by Metal Refinery (EPZ) Ltd within four months of her judgment, in default, Sh700 Million would be due and payable by them to Centre for Justice Governance and Environmental Action (CJGEA) to coordinate the soil and environmental clean-up exercise.
Aggrieved, EPZA and NEMA appealed.
The Court of Appeal subsequently dismissed the award of damages saying there was no evidence to support the amount of compensation issued.
They set aside the Sh1.3 billion award and also the Sh700 million that was to be awarded to the Centre for Justice Governance and Environmental Action (CJGEA) if the state fails to clean the environment within four months.
The victims of the lead poisoning then moved to the Supreme Court seeking reinstatement of Justice Omollo’s orders.
The Supreme judges after analyzing the case held that there was sufficient evidence for the trial court to make a finding on compensation.
They said Justice Omollo had the opportunity to observe witnesses presented by the residents and observe their injuries.
They also took into consideration a report provided by the Deputy Government Chemist detailing samples taken from fifty residents of Owino Uhuru Village which indicated elevated blood levels; soil, dust, and water tested indicated high levels of lead which were hazardous, especially for children in play areas and for persons who spend time in enclosed places.
“…we find that in this case the harm was in the soil, air, and water and the same also affected the health of humans. The effects on humans and the environment were therefore not a one-off event but a continuous violation that persisted for more than seven years when Metal Refinery was operating,” they said.
The Judges said NEMA was negligent in the conduct of its duties.
On this, they agreed with the Court of Appeal that NEMA bore a greater responsibility in relation to the pollution.
In addition, the Apex Judges said the Court of Appeal made a mistake in dismissing the restorative orders issued by the ELC and the award of Sh700 million in default.
‘We are however alive to the fact that considerable time has passed since the orders of the ELC were issued. Within that frame of time EPZA and NEMA may have taken restorative measures which ought to have been accounted for,’ they said.
They subsequently directed NEMA and other agencies to file at the ELC in Mombasa, their respective reports, if any, within three months of their decision, on the various restorative measures they have undertaken in line with the judgment delivered by the ELC.
According to the court records, Penguin Paper and Book Company Limited 2006 leased a neighboring plot to Metal Refinery (EPZ) Limited which set up a lead acid battery recycling factory.
The lead-acid recycling activity produced toxic waste which seeped into the village causing the area residents various illnesses and ailments as a direct consequence of lead poisoning with more than 20 deaths attributed to it.
The factory was permanently closed in 2014.
Win For Owino Uhuru Lead Poisoning Victims
