- CJGEA, Muslim of Human Rights (Muhuri), Defenders Coalition, Environmental Rights Organization Network and the Owino Uhuru community said they were ‘astonished’ by the judgment of the Court of Appeal.
- The CoA directed that on the issue of compensation payable to the petitioners that the matter should be taken back to the Environment and Lands Court for rehearing.
Image: FILE
The Court of Appeal on Thursday set aside the Sh1.3 billion compensation that the residents of Owino Uhuru had been granted by the Environment and Land Court at Mombasa in 2020.
The three judges of the Court of Appeal who were handling the case; Steven Gatembu, Pauline Nyamweya and Jessie Lesiit on Thursday said the appeal by National Environment Management Authority (Nema) and Export Processing Zone Authority (EPZA) partially succeeded.
“The appeal only succeeds to the extent of our findings on the apportionment of liability, award and quantum of damages, and hereby set aside the orders granted by the Environment and Land Court at Mombasa on 16th July 2020,” reads part of the 87-page judgment.
The trio set aside the Sh1.3 billion awarded to the petitioners and also the Sh700 million that was to be awarded to Centre for Justice Governance and Environmental Action (CJGEA) if the state fails to clean the environment within four months.
They also set aside the apportionment of liability by the trial Judge.
They directed that the Cabinet Secretary in the Ministry of Environment will now bear five per cent liability, and the Cabinet Secretary in the Ministry of Health also five per cent.
Nema will bear 30 per cent responsibility, EPZA (10 per cent), Metal Refinery EPZ Limited (40 per cent) and Penguin Paper and Book Company Ltd (10 per cent).
However, the court directed that on the issue of compensation payable to the petitioners that the matter should be taken back to the Environment and Lands Court for rehearing.
“We hereby remit the issue of the compensation payable to the petitioners as prayed in the petition dated February 20, 2016, for rehearing before a judge at the Environment and Land Court at Mombasa other than Anne Omollo,” the verdict reads.
Nema was directed within 12 months from the date of the recent judgment, and in consultation with all the relevant agencies and private actors to identify the extent of contamination and pollution caused by the operations of Metal Refinery EPZ Ltd at the Owino Uhuru Settlement.
It was ordered to remove any contamination and pollution in the affected areas of Owino-Uhuru Settlement and restore the environment of the slum and its ecosystem.
It was also asked to submit a periodical report every three months to the Environment and Land Court at Mombasa on the progress made until the satisfactory completion of the restoration.
However, CJGEA, Muslim of Human Rights (Muhuri), Defenders Coalition, Environmental Rights Organization Network and the Owino Uhuru community said they were ‘astonished’ by the judgment of the Court of Appeal.
“We received the Court of Appeal judgment with utter shock and dismay… It is utterly mischievous to apportion 40 per cent liability to Metal Refinery EPZ with hindsight that the state agencies facilitated the exit of the Indian-owned outfit,” CJGEA executive director Phyllis Omido said.
She added that the move to send them 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.
Omido said in regards to the issue of Sh1.3 billion damages to be paid to the affected communities, they said the decision to take the matter back to the lower court will make the community re-live the ordeal and would bear more costs to them.
“We cannot go back to the lower court. We can only move to the Supreme Court and we are determined to even go to the East African Court of Justice,” she said.
She said the judgement still upheld the right to a clean and healthy environment and tasked Nema to remediate the community,
“However, they do not give any buffer in case Nema does not do the cleanup. Hitherto, Nema ignored the senate, Parliament and the Environment and Land Court (ELC), which explicitly required them to clean up the environment,” said Omido.
She added that the possibility that Nema will ignore this judgment is high.
“That is why the competent ELC court had required that they pay for the cleanup in case they fail to do so themselves. The Court of Appeal has upheld impunity and trampled on the rights of the people of Owino Uhuru,” she said.
More than 3,000 residents, through the CJGEA, had sued the Lead smelting company- Metal Refinery EPZ Limited for deaths, sickness and damages caused by emissions from the factory.
In the class action litigation suit filed in 2016, the residents also sued the ministries of Environment and Health, Nema, EPZA, and Penguin Paper and Book Company.
On July 16, 2020, the Environment and Lands Court Judge Ann Omolo awarded the residents Sh1.3 billion for personal injuries and loss of lives payable within ninety (90) days.
Nema, Metal Refinery EPZ Limited, the Cabinet Secretary in the Ministry of Environment and Ministry of Health, EPZA and Penguin Paper and Book Company were apportioned liabilities.
EPZA was supposed to pay Sh200 million, Nema Sh800 million, Penguin Paper and Book Company Sh1 million and the Lead factory Sh3 million.
The court also directed the respondents to clean up the soil, and water and remove any wastes deposited within the Owino-Uhuru Settlement within four months (120 days) from the date of the judgment.
In default, the sum of Sh700 million became due and payable to the CJGEA to coordinate the soil and environmental clean-up exercise.
However, what had been seen as a big win for the residents, would soon be challenged at the Court of Appeal by Nema and EPZA.
According to court documents, Nema filed a Memorandum of Appeal on October 9, 2020, in which it raised nine grounds of appeal challenging the findings by the trial court on liability and award of compensation and damages.
Nema faulted the findings of liability on the ground that the Environment and Land Court misconstrued the interpretation of the principles of strict liability, ‘polluter pays’, and causation in apportioning liability.
It said the court also failed to appreciate the Environment Impact Assessment process, the importance of trial runs and the ‘precautionary principle’ in environmental governance.
The quantum of compensation Sh1.3 billion and Sh700 million was challenged for having been based on proposals given by the petitioners only.
They also said the finding that CJGEA should be paid the Sh700 million to conduct a soil contamination clean-up at Owino Uhuru was without any expert input.
EPZA was equally dissatisfied with the judgment and raised 23 grounds of appeal in its Memorandum of Appeal dated May 7, 2021, in which it faulted the findings of the trial Court in several broad areas.
EPZA said the trial Court lacked jurisdiction to hear and determine the constitutional petition, secondly, they challenged the apportioning of liability to EPZA.
They also cited the application of the “Polluter Pays Principle” and lastly queried the excessive award of damages of Sh1.3 billion to the residents and Sh700 million to CJGEA without justification and evidence, and ascertainment of affected persons in the representative suit.
(Edited by Tabnacha O)