This week, the Supreme Court upheld the verdict by the Environment and Land Court (ELC) awarding KShs 1.3 billion to residents of Owino Uhuru village in Changamwe, as damages for lead poisoning.
- •The Friday morning ruling overturned the decision by the Court of Appeal delivered last year and also reinstated Kshs 700 million to the Center for Justice Governance and Environmental Action to restore the environment.
- •The appeal to the Supreme Court was filed by the Export Processing Zone Authority (EPZA) and the victims of the Metal Refinery (EPZ) limited l, which was accused of polluting the environment with lead residues from 2006.
- •The Court of Appeal directed NEMA to identify the extent of contamination and pollution caused by the operations of the Metal Refinery at the Owino- Uhuru Settlement and restore its eco-system.
“Consequent upon our conclusions above, the petitions of appeals and cross petition are disposed of by making the following orders: The 1st appellant’s (EPZA) appeal dated 1st August 2023 and filed on 24th August 2023 is hereby dismissed. The 1st respondent’s (NEMA) cross-appeal dated 17th April 2024 and filed on 17th April 2023 is hereby dismissed,” the judges wrote in the verdict.
The ruling declared that the Court of Appeal erred in quashing the compensation. It also acknowledged that the respondents – who include the National Environment Management Authority (NEMA), the lead acid battery recycling company, and Penguin Paper and Book Company – were fractionally liable for the pollution and harm caused to the victims.
Background
The Court of Appeal had set aside the damages, dismissing the decision of the ELC was not relatable to the case. The Appellate court, however, acknowledged the liabilities held by the respondents – with the lead company and NEMA bearing the biggest proportion of the blame. The ruling further directed a rehearing of the case by Justice Anne Omollo at the ELC in Mombasa.
“All that NEMA had done was write letters to demand for improvement until the residents of Owino-Uhuru Village petitioned Parliament which then constituted a committee whose recommendations resulted in tests being done both on humans and the environment. The court therefore found that NEMA had failed to fulfill its mandate as set out in Section 58 of EMCA,” the court determined.
EPZA’s appeal was intended to eliminate any blame for the environmental pollution, arguing that NEMA did not effectively carry out an environmental impact assessment at the time of granting the lead acid battery recycling company a license. It also sought to convince the court that it tried to mitigate the mess by declining to award another license to the company.
The Supreme Court ruled that EPZA did not exercise care in handling the mess and dismissed its failure to renew a license for one year as insufficient to serve as ‘mitigation’. The lead acid battery recycling company was shut down in 2014 after allegations of pollution mounted.
Lead is a highly toxic element and children are most vulnerable to its effects. Exposure to the element can damage the brain, liver, and kidney. It can also impair intellectual development. According to the World Health Organization (WHO), there is no safe exposure to lead, ranking it as one of the most dangerous chemicals that raises public health concerns. The compensation was a joyous moment for 3,000 residents exposed to the deleterious effects of lead after a hard-fought battle.