'It was an act of God', judge rules in Sh2.3 billion KenGen compensation case

Residents of Mandingo village attempt to wade through a flooded road to reach their homes in Tana Ddelta as most the villages are completely inaccessible due to foods, May 16, 2020. [File, Standard] The High Court has dismissed a multi-billion-shilling case against Kenya Electricity Generating Company PLC (Kengen) after finding that deadly floods in six constituencies in 2018 were as a result of climate change and an 'act of God'. Garsen Member of Parliament Ali Wario Guyo sued Kengen and the National Assembly, claiming that the power-generating company was to blame for allegedly opening the spillage due to the excessive rains. Guyo had asked the court to award residents of Garsen, Galore, Bura, Balambala, Fafi, and Garissa Township constituencies at least Sh2.3 billion as compensation for displacement, loss of homes and animals, and widespread waterborne diseases caused by the 2018 flooding. He claimed that the company was solely to blame, as it allegedly released water that became deadly to people living downstream. The MP said that Kengen was negligent. READ: Flood warning issued after Masinga Dam overflows However, Justice Mwangi Njoroge said it could not be censured as a notice had been issued. Other rivers away from the dam, Thura-Ena, Mara, Mutonga, and Kathita, were not controlled and had equally flooded. He said he was satisfied with the firm's explanation that the Seven Forks Dam barriers are built so that water flows back to Rover Tana when the dam is full. He asserted that there was nothing Kengen or anyone would do to stop the raging waters as it was an act of God. "Coupled with the fact that there is nothing non-natural that the respondent did to add to the natural rainwater volume, the evidence of abnormal rainfall which occurred during March and April 2018 in both the upper and downstream catchment areas of the Tana River basin means that the resultant floods and the damage occasioned can only be termed as an Act of God," said Justice Mwangi. Kengen called Engineer Ginalius Njiraini as its witness. Njiraini denied negligence adding that the firm had set aside part of its community social responsibility budget to support the affected persons. The engineer explained that the massive flooding was caused by an act of God in the form of unforeseeable extreme and abnormal levels of rain experienced during March and April 2018 in the upper and lower catchment areas of the Tana River. He stated that the five dams are designed to ensure that they regulate water levels. According to him, it was misleading to allege that the Kengen deliberately released excess water from the dams which caused the flooding. Further, Njiraini asserted that once it became clear that the water levels had drastically risen to spilling levels, the company notified the national government through the County Commissioners of Garissa County and Tana River and the Secretary General of the Red Cross. The second witness was Willis Ochieng. He said that he was Kengen's chief energy planner and an expert in meteorology, hydrology, renewable energy, integrated water resource management and climate change He said that by March 17, 2018, the water levels at Garissa Station had reached 4.9 m. Some downstream areas, such as Tana River, Garsen, Bura, and Garissa, were already experiencing flooding because of the heavy rains. Water levels above 3.5m are classified as a flooding situation. He stated that the river levels continued to rise and were at 5.1 meters in Garissa as at April 17, 2018, one month before the first dam (Masinga) was full. As of April 20, Masinga dam was at 1043.6 meters above sea level, against the full supply level of 1056.50 meters. "The situation remained the same up to the end of April 2018 at which point it was at 1049.93 meters," testified Ochieng. He further explained that Masinga dam only started to spill into the rest of the four dams on May 16, 2018. According to him, the excessive flow was probably caused by River Thiba which joins the cascade after the Masinga dam. As a result, Kiambere dam (the last dam) started overflowing on April 24, 2018. ALSO READ: We didn't discharge Masinga water, says KenGen as floods hit Garissa He said that the construction of the dams has greatly improved the flooding situation previously experienced by how they operate. The third witness, Grace Chepkwony a community relations manager said that Kengen had spent Sh 15 million to support the affected residents. The National Assembly supported the MP's case. It argued that there were several meetings between then Cabinet Secretary for Energy Charles Keter and the CEO Rebecca Miano (Cabinet Secretary for Tourism and Wildlife), on compensating the victims within 14 days. In the end, Justice Mwangi said that instead of blaming each other, Kenya ought to scale up the implementation of climate action. Justice Mwanfi said that the country should track and report climate finance flows and develop economic policies centred on climate change mitigation. ". Indeed, as indicated in the aforecited report, "increased finance for mitigation and adaptation in Kenya, particularly in the transport, forestry, water, land use, and waste sectors, could create jobs for millions of people and lead the way to a greener, more resilient future," he said.

'It was an act of God', judge rules in Sh2.3 billion KenGen compensation case

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'It was an act of God', judge rules in Sh2.3 billion KenGen compensation case

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