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ELCPartially AllowedPetition No. 1 of 2016· [2020] KEELC 1680 (KLR)

KM & 9 others v Attorney General & 7 others [2020] KEELC 1680 (KLR)

Environment and Land Court
16 July 2020
24,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~97 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Ten petitioners, residents of Owino-Uhuru Village in Mikindani, Mombasa, petitioned against the Attorney General, Cabinet Secretaries for Environment and Health, NEMA, the County Government of Mombasa, EPZ Authority, Metal Refinery (EPZ) Limited and Penguin Paper and Book Company over lead poisoning caused by a lead-acid battery recycling factory. They sought declarations of violations of the rights to a clean environment, health, water, life and information, compensation of Kshs.3 billion, and mandamus orders for studies, remediation and regulation. The court found jurisdiction under Article 70 and Section 3(3) of EMCA. On the evidence, including Government Chemist findings of blood lead levels up to 420mg/dl and soil levels up to 109,000mg/kg, and uncontradicted by any Respondent report, the court found actual violations of the rights to a clean and healthy environment, health, water and life. It apportioned liability: NEMA 40%, Metal Refinery 25%, CS Environment 10%, CS Health 10%, EPZ Authority 10%, Penguin Paper 5%; it found no liability on the County Government of Mombasa. Contributory negligence was rejected, as was the objection to a representative suit. The court awarded Kshs.1.3 billion to the 1st–9th petitioners, payable in 90 days with execution in default; directed clean-up within 120 days failing which Kshs.700 million falls due to the 10th petitioner; issued mandamus on regulations for lead manufacturing plants; declined the Article 35 declaration, the study mandamus and the second mandamus; and awarded the petitioners costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the petition

Holding

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.

Reasoning

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.

p. 18
02

Proof of violation of the right to a clean and healthy environment

Holding

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.

Reasoning

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.

p. 19
03

Culpability of the individual Respondents

Holding

The 2nd (10%), 3rd (10%), 4th (40%), 6th (10%), 7th (25%) and 8th (5%) Respondents were liable; the 5th Respondent bore no liability.

Reasoning

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.

04

Contributory negligence of the petitioners

Holding

No contributory negligence was established; the State had neither compensated them nor offered relocation nor remedied the pollution.

Reasoning

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.

p. 16
05

Entitlement to compensation in a representative petition

Holding

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.

Reasoning

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.

p. 24

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.