KM & 9 others v Attorney General & 7 others [2020] KEELC 1680 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered government agencies and companies to pay Owino-Uhuru lead poisoning victims Kshs.1.3 billion and clean up their village.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over the petition
The court had jurisdiction under Article 70 of the Constitution and Section 3(3) of EMCA over alleged violations of the right to a clean and healthy environment.
The 1st–3rd Respondents questioned jurisdiction without detailing reasons. The court noted that Article 70 permits any person alleging breach of environmental rights to seek redress and that Section 3(3) of EMCA vests such claims in the Environment and Land Court, applying the Motor Vessel 'S' principle that jurisdiction is everything.
Proof of violation of the right to a clean and healthy environment
Violation was proved through the Government Chemist reports, the Parliamentary Committee report, expert and factual testimony, none of which was contradicted by any Respondent report.
PW8, the Deputy Government Chemist, produced detailed findings of elevated blood lead levels (up to 420mg/dl), soil lead levels of up to 109,000mg/kg against an EPA standard of 400mg/kg, and contaminated dust and well water. The PCC and Parliamentary Committee corroborated. No Respondent produced contradicting scientific evidence, and the court observed the minor's rashes.
Culpability of the individual Respondents
The 2nd (10%), 3rd (10%), 4th (40%), 6th (10%), 7th (25%) and 8th (5%) Respondents were liable; the 5th Respondent bore no liability.
NEMA allowed operations before an EIA licence, contradicted itself with cessation orders and trial-run approvals, and transferred a licence after closure. The 2nd Respondent issued a licence without NEMA's. The 3rd Respondent failed to invoke Public Health Act nuisance provisions or provide continued treatment. The 6th Respondent licensed the factory without the EIA licence and on letters referring to a Kilifi parcel. The 7th and 8th Respondents never filed a defence. The 5th Respondent's role was limited to a single business permit and the Physical Planning Act ceased to apply once the area was gazetted an EPZ.
Contributory negligence of the petitioners
No contributory negligence was established; the State had neither compensated them nor offered relocation nor remedied the pollution.
The petitioners had lived on the land for decades, no evidence showed the area was gazetted industrial before their occupation, no compulsory acquisition process existed, and alternative accommodation does not license pollution. Blaming residents for not moving away rather than directing the polluter to clean up was escapist.
Entitlement to compensation in a representative petition
Compensation was awarded: Kshs.1.3 billion to the 1st–9th petitioners and Kshs.700 million in default of clean-up, apportioned among liable respondents.
Applying the polluter pays principle, Article 70(c), Section 108 of EMCA, Rylands v Fletcher, M C Mehta absolute liability, and the LAPSSET and Ndetei comparatives, and in the absence of alternate proposals from Respondents, the court adopted the petitioners' proposed figures but reduced Kshs.2 billion to Kshs.1.3 billion for personal injury and loss of life.
Legal principles established
#- State actors bear liability for violations of environmental rights even where the polluter is a private entity; the duty to regulate cannot be outsourced to the polluter pays principle.
- No pre-incident contamination report is required of citizens alleging environmental breach; the burden lies on State actors before issuing a licence to a project proponent.
- A suit may properly be brought in both singular and communal capacities for environmental damage affecting a settlement; damages for communal environmental harm are payable in a representative petition.
- Contributory negligence cannot be founded on continued residence in a polluted area where the State has neither compensated nor offered alternative relocation nor remedied the pollution.
- Enterprises engaged in hazardous activities are absolutely liable to compensate all those harmed regardless of care taken (absolute liability).
Court orders
#- 1.Declarations that the Petitioners' rights to a clean and healthy environment (Article 42), the highest attainable standard of health and clean and safe water (Article 43) and the right to life (Article 26) were violated by the Respondents
- 2.An award of Kshs.1.3 Billion due and payable to the 1st – 9th petitioners and persons claiming through them, payable by the 2nd, 3rd, 4th, and 6th – 8th Respondents in accordance with the apportionment of liability (2nd 10%, 3rd 10%, 4th 40%, 6th 10%, 7th 25%, 8th 5%) within 90 days, in default execution to issue
- 3.Directions that the liable respondents clean up the soil and water and remove wastes deposited within the settlement within 120 days, in default Kshs.700,000,000 to become due and payable to the 10th petitioner to coordinate the clean-up
- 4.An order of mandamus against the 1st, 2nd and 4th Respondents to develop and implement regulations adopted from best practices with regard to lead and lead alloys manufacturing plants
- 5.Costs of the petition awarded to the petitioners
- Jurisdiction invoked
- Articles 22, 23, 70, 162 and 165(3)(b) of the Constitution and Section 3(3) of the Environmental Management and Coordination Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KM & 9 others v Attorney General & 7 others [2020] KEELC 1680 (KLR)", Case Analysis (2020). Petition No. 1 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1680/eng@2020-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.