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Court of AppealPartially AllowedMombasa Civil Appeal No E004 of 2020 & Mombasa Civil Appeal No E032 of 2020 (Consolidated)

National Environment Management Authority & another v KM (Minor suing through Mother and Best friend SKS) & 17 others (Civil Appeal E004 of 2020 & E032 of 2021 (Consolidated)) [2023] KECA 775 (KLR)

Court of Appeal of Kenya
23 June 2023
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
22,749 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~91 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed Kenyan state agencies can be held liable for pollution they license, but threw out the Kshs 2 billion awards and ordered a fresh assessment.

What this practically means

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Executive summary

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This consolidated appeal by NEMA (Mombasa Civil Appeal No E004 of 2020) and EPZA (Mombasa Civil Appeal No E032 of 2020) challenged the Environment and Land Court's judgment of July 16, 2020 in KM & 9 others v Attorney General & 7 others, which found state agencies liable for lead poisoning of Owino-Uhuru village residents caused by Metal Refinery EPZ Ltd's battery-recycling factory, awarded Kshs 1.3 billion compensation and Kshs 700 million default clean-up costs. The Court of Appeal (Gatembu Kairu, Nyamweya and Lesiit, JJA) first upheld the ELC's jurisdiction, holding that the claim was a constitutional rights petition under articles 42, 69 and 70 which the National Environment Tribunal could not determine under section 129 of EMCA. On liability, the court held state regulators who licensed the factory before completion of the EIA process bore liability near equal to the polluters: the polluter pays principle does not exempt state agencies, and state liability arises from administrative authorisation, absence of regulation, or inadequate measures over private actors. It revised the apportionment, raising Metal Refinery EPZ Ltd to 40% and reducing NEMA to 30%, EPZA to 10%, the Cabinet Secretaries to 5% each, and Penguin Paper to 10%. On quantum, the court set aside both monetary awards: the compensation award was based on unidentified claimants, and the clean-up award to CJGEA was unpleaded special damages for a technical exercise within NEMA's statutory mandate. It remitted compensation for rehearing before a different ELC judge, directed NEMA to identify, remove and restore contamination at Owino-Uhuru within 12 months with quarterly progress reports, affirmed the other orders of the trial court, and made no order as to costs of the appeals.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Environment and Land Court had jurisdiction to hear the constitutional petition given the existence of the National Environment Tribunal under EMCA
  2. 2.Whether there was a legal basis to find NEMA and EPZA liable for the adverse effects of the operations of Metal Refinery EPZ Ltd, including the application of the polluter pays principle, strict liability and the precautionary principle
  3. 3.Whether the apportionment of liability by the trial court was proper
  4. 4.Whether the awards of Kshs 1.3 billion compensation and Kshs 700,000,000 for environmental clean-up were justified, and what remedies were appropriate

Key legal issues

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01

Jurisdiction of the ELC versus the National Environment Tribunal

Holding

The ELC had jurisdiction; the claim was exclusively for violation of constitutional rights with remedies (compensation, mandamus) that NET cannot grant, and the alleged harm fell outside section 129(1) EMCA timelines.

Reasoning

The court distinguished Kibos Distillers, where the key dispute was whether licences were lawfully procured and the NET had original jurisdiction. Here no prayer fell within section 129(1) of EMCA; the harm occurred outside the statutory timelines; and the tribunal cannot arrogate to itself constitutional powers under article 23(3). The claim was one of violation of the right to a clean and healthy environment, squarely within the ELC's section 13(3) jurisdiction.

p. 26
02

Liability of state regulators for licensing a polluting industry before an EIA licence

Holding

NEMA and EPZA were properly held liable for approving operations before the EIA process was complete; the causal link between the approval and the damage was evident.

Reasoning

Section 58 of EMCA prohibits commencing listed projects before an EIA licence. NEMA permitted trial runs and approved the project before licensing without technical evaluation of the EIA report; EPZA issued the EPZ licence without the EIA licence contrary to its own condition and section 23(c) of the EPZ Act. Appropriate anticipatory controls, including prohibition of the project, would have prevented the damage.

p. 41
03

Application of the polluter pays and strict liability principles to state agencies

Holding

Polluter pays does not confer sole liability on the private polluter; state duty bearers remain responsible, and the principle may apply to state agencies as economic operators.

Reasoning

The court read section 2 of EMCA as assigning primary liability to private polluters, but held the State bears positive obligations under articles 69 and 21 of the Constitution, including where pollution results from lack of effective regulation of private activities. Private law principles (Rylands v Fletcher, negligence, nuisance) apply mainly to private actors, while public law principles govern state liability.

p. 35
04

Quantum and proof of damages for constitutional violations

Holding

The trial court failed to take into account relevant factors: the victims were unidentified, the clean-up award to CJGEA was unpleaded special damages and a technical matter reserved to NEMA, so the court interfered with the award.

Reasoning

Compensation under articles 23(3)(e) and 70(2)(c) is discretionary; comparable common law damages are only a guide. The Kshs 1.3 billion global award was based on unidentified claimants, and the Kshs 700 million restoration award to CJGEA ignored that restoration is special damages needing proof and that NEMA holds the statutory restoration mandate and the National Environment Restoration Fund.

p. 48

Legal principles established

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  • The National Environment Tribunal's jurisdiction under section 129(3) of EMCA is confined to the objectives and four corners of EMCA and cannot oust the constitutional jurisdiction of the Environment and Land Court to hear and determine violations of the right to a clean and healthy environment under articles 42, 69 and 70.
  • Section 13(3) of the Environment and Land Court Act specifically grants the ELC jurisdiction to hear and determine applications for redress of denial, violation, infringement or threat to rights relating to a clean and healthy environment.
  • State liability for environmental harm arises under public law where the State violates its statutory or constitutional obligations and a causal link with the damage is established; state liability may derive from an administrative authorisation, absence of regulation, or inadequate measures relating to private actors' activities.
  • The polluter pays principle does not exempt the State or state agencies; it is not a hard and fast rule that state agencies are exempt from its application.
  • The precautionary principle requires caution even where there is no evidence of harm; proof of harm should not be the basis of taking action, and it does not permit the taking of risks in unknown cases.
  • An appellate court may disturb a trial judge's award of damages where the judge took into account an irrelevant factor, left out a relevant one, or where the amount is so inordinately low or high that it is a wholly erroneous estimate of the damage.
  • Regulatory bodies that approve operations before completion of the EIA process bear liability near equal to that of the actual perpetrators of pollution.

Court orders

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  1. 1.Set aside the trial court's orders awarding Kshs 1.3 billion compensation and Kshs 700,000,000 default clean-up sum, and the apportionment of liability
  2. 2.Substituted apportionment of liability: Cabinet Secretary Ministry of Environment 5%; Cabinet Secretary Ministry of Health 5%; NEMA 30%; EPZA 10%; Metal Refinery EPZ Ltd 40%; Penguin Paper and Book Company Ltd 10%
  3. 3.Remitted the issue of compensation payable to the petitioners for rehearing before a judge of the Environment and Land Court at Mombasa other than A Omollo J, including taking of additional evidence limited to that issue
  4. 4.Ordered and directed NEMA, within 12 months, in consultation with relevant agencies and private actors, to identify the extent of contamination, remove contamination and pollution, and restore the environment of Owino-Uhuru Settlement, reporting every 3 months to the ELC at Mombasa
  5. 5.Affirmed and upheld all other orders of the Environment and Land Court except to the extent modified
  6. 6.Made no order as to costs of the appeals

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SK
majority
PN
majority
JL
majority
On appeal from
Environment and Land Court at Mombasa
Mombasa ELC Petition No 1 of 2016 [2020] eKLR
Jurisdiction invoked
Section 348 as read with rule 33 of the Court of Appeal Rules; first appeal from the Environment and Land Court exercising jurisdiction under article 162(2) of the Constitution and section 13 of the Environment and Land Court Act
Consolidated with
Mombasa Civil Appeal No E032 of 2020

Relief refused

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Retention of the award of Kshs 1.3 billion compensation as made by the trial court

The beneficiaries were not identified and the object of compensation requires the victim to be identified for causation and enforcement

p. 47

Retention of the Kshs 700,000,000 award payable to CJGEA for clean-up

It was an unpleaded special damages award, a technical exercise not demonstrated by CJGEA, and the legal and institutional framework for restoration resides with NEMA

p. 47

Finding of liability against the County Government of Mombasa

There was no cross-appeal on the trial court's finding on the County Government's liability

p. 9

Costs

We make no order as to costs of the appeals, since the appellants have partially succeeded in the consolidated appeals herein.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, this appeal therefore partially succeeds only to the extent of our findings on the apportionment of liability, award and quantum of damages, and we accordingly order as follows:
p. 49Disposition
We make no order as to costs of the appeals, since the appellants have partially succeeded in the consolidated appeals herein.
p. 50Costs
We hereby remit the issue of the compensation payable to the petitioners as prayed in prayer (e) of the petition ... for rehearing before a judge at the Environment and Land Court at Mombasa other than A Omollo J
p. 50Remittal for reassessment of damages
We hereby order and direct the National Environmental Management Agency, within 12 months from the date of this judgment, and in consultation with all the relevant agencies and private actors and in appropriate exercise of its functions and powers to:
p. 50Mandatory restoration order against NEMA
All the other orders granted by the Environment and Land Court at Mombasa on July 16, 2020 in KM & 9 others vs Attorney General & 7 others, Mombasa ELC Petition No 1 of 2016 [2020] eKLR are afirmed and upheld except to the extent modified by the findings in this judgement.
p. 50Affirmation of remaining orders
the trial court did not exclusively or solely rely on the “polluter pays” principle to establish liability on the part of NEMA and EPZA and other state agencies
p. 6Basis of state liability
EPZA therefore not only was in direct violation of article 69 of the Constitution and section 23 of the EPZ Act, but also assumed the legal risk and responsibility for any shortcomings by NEMA in its processes of issue of the EIA licence
p. 38EPZA liability

Issues in the judgment

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minor

The judgment describes itself as having undertaken further research causing delay but the certified copy is undated internally as to the typing; no substantive contradiction, noted only for completeness of the record of the delay in delivery after the July 2022 hearing.

minor

The reproduced trial court order at paragraph (e) of the set-aside orders appears twice lettered as (e), and the extracted apportionment in the set-aside passage shows the Cabinet Secretaries at 10% each and Penguin at 5%, matching the trial court's apportionment described earlier in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Environment Management Authority & another v KM (Minor suing through Mother and Best friend SKS) & 17 others (Civil Appeal E004 of 2020 & E032 of 2021 (Consolidated)) [2023] KECA 775 (KLR)", Case Analysis (2023). Mombasa Civil Appeal No E004 of 2020 & Mombasa Civil Appeal No E032 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/775/eng@2023-06-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.