Residents of Owino Uhuru village in Mombasa suffered a temporary blow when the Court of Appeal overturned a Sh1.3 billion compensation they had been awarded as damages for the adverse effects they suffered as a result of lead pollution.
The court found that the compensation needs to be heard afresh since only nine petitioners who filed the suit could be identified and hence the need to ensure everyone else supposed to benefit is known.
In total over 3,000 residents from 580 homesteads are to benefit.
Ruling in an appeal filed by the National Environmental Management Authority (Nema), Justices Gatembu Kairu, Jessie Lessit and Pauling Nyamweya also overturned a Sh700 million award to Centre for Justice, Governance and Environmental Action as special damages for the cost of restoring the soil since it was not registered at the time.
They also noted that restoration of contaminated land is a fairly technical exercise as it entails removal or treatment of the contaminated land, and eventual restoration and reclamation of the land and habitat restoration, which requires scientific methodologies and techniques which were not demonstrated by the residents and CJGEA, to justify the order and award.
While this is a setback, it is our hope that the residents' quest for justice for the damage from the pollution, which claimed 20 lives and left thousands ill, will eventually succeed.
The case has been keenly followed by human rights campaigners locally and internationally because damage to people's health from pollution has been a contentious issue worldwide with many people ending up without compensation.
In 2014, Human Rights Watch visited Owino Uhuru as part of a series of investigations into toxic lead exposure in Kosovo, China, Nigeria, Zambia, Thailand, and elsewhere.
While the issues raised in the Nema appeal have succeeded, the government must know that it has no option but to compensate the victims.
While the smelter behind the solution, Metal Refinery Export Processing Zone (EPZ) Ltd, was found to have violated numerous laws, endangering the health of workers and residents, the government did little to remedy the situation and only shut it down in 2014, following public protests.
We take comfort in the fact that the landmark ruling by Justice Riaga Omollo in 2020 in that apart from issues the apportionment of liability, award and quantum of damages.
The residents' lawyers must not waver but work to ensure the issues raised by the court are addressed.
On its part, Nema should also ensure it complies with the order to ascertain the extent of the damage within one year for purposes of restoration.
