It was a blow to hundreds of Owino-Uhuru slum dwellers after the Court of Appeal overturned a Sh1.3 billion damage award for lead poisoning.
Justices Gatembu Kairu, Jessie Lesiit and Pauline Nyamweya also set aside a Sh700 million fine to the respondents of the case to clean the environment affected by lead poisoning in the area.
The judges directed that the matter of damages be heard afresh before a Lands Court in Mombasa.
The National Environment Management Authority (Nema) had appealed the award by Justice Ann Omollo dated July 16, 2020, awarding over 3,000 residents from 580 homes the said amount.
The appellate judges noted that the trial judge awarded the amount of Sh1.3 billion as compensation for the nine petitioners and persons claiming through them who were not identified.
"It is notable in this respect that the object of compensation is to remedy a wrong that a person has suffered, and the victim must of necessity be identified for purposes of causation and enforcement of the remedy," said the judges.
The judges further said the Sh700 million award for the cost of restoration of the soil as special damages to the Centre for Justice Governance and Environmental Action (CJGEA) was given when it had not been specifically pleaded or proved.
"The second is that restoration of contaminated land is a fairly technical exercise as it entails the 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," said the Appellate judges.
In conclusion, they said the appeal "partially succeeds only to the extent of our findings on the apportionment of liability, award and quantum of damages and accordingly set aside the following orders granted by Justice Omollo on 16th July 2020."
The judges, however, said it is necessary that all possible claimants are identified, ascertained and compensated, both in the interest of justice, and also in the interest of proportionality and costs effectiveness, to ensure that the case is not an open door for free riders and opportunists to make personal gain from the tragedy that befell the residents of Owino-Uhuru village.
"We hereby remit the issue of the compensation payable to the Petitioners as prayed in Prayer (e) of the Petition dated 20 February 2016 for rehearing before a judge at the Environment and Land Court at Mombasa other than A. Omollo J, including the taking of additional evidence limited to the said issue and assessment of damages payable to the Petitioners, and taking into account the principles set out in this judgment," read the appellate judgment.
Justice Omollo had found Nema, the ministry of Health and two private firms liable for the lead pollution that left over 20 people dead and thousands ill with high levels of lead poison in their bodies.
The locals, through CJGEA, filed a petition on August 20, 2015, demanding Sh2 billion as compensation for the damages caused to the residents' health and Sh1 billion for the cleanup of the soil and water in the area.
However Nema, through the Attorney General's lawyer Emmanuel Makuto, said that the judge erred by shouldering the whole liability to the State yet it had taken the initiative to shut down the lead company.
Makuto said that according to the international law on pollution, the polluter is the one supposed to pay the whole principal amount and shoulder the entire liability.
In their judgment on Friday, the appellate court directed Nema within 12 months, in consultation with all the relevant agencies and private actors, to identify the extent of contamination and pollution caused by the operations of Metal Refinery Export Processing Zone (EPZ) Ltd at the Owino-Uhuru Settlement.
Nema is also expected to remove any contamination and pollution in the affected areas of Owino-Uhuru Settlement and restore the environment and its ecosystem.
The judges added that the Authority will periodically report every three months to the Environment and Lands Court in Mombasa on the progress made for any consequent directions, until the satisfactory completion of the restoration.
"All the other orders granted by the Environment and Lands Court in Mombasa on July 16th, 2020 are affirmed and upheld except to the extent modified by the findings in this judgment," said the Judges.
The appellate court said in the new apportionment of liability by the new trial Judge, the Cabinet Secretary in the Ministry of Environment, Water and Natural Resources and the Cabinet Secretary in the Ministry of Health to pay five per cent of the total damage awarded.
Nema shall pay 30 per cent of the total damages, while EPZA to pay 10 per cent, Metal Refinery EPZ Ltd will pay 40 per cent and Penguin Paper and Book Company Ltd pay 10 per cent. In her damage apportionment, Justice Omollo had directed that Nema bear the greatest responsibility and pay 40 per cent or Sh520 million of the compensation.
The State was also set to clean up the area within four months, failure to which it would be required to pay a fine of Sh700 million.
A firm owned by a former Nyali politician was to pay Sh65 million of the Sh1.3 billion for the death, sickness, and damages caused by a lead-smelting factory in Jomvu, Mombasa. The lead factory was to pay 25 per cent of the award, while the Ministry of Health and Export Processing Zones Authority (EPZA) were to pay 10 per cent each.
