Mombasa's lead poisoning survivors awarded Sh2b

It was song and dance at Owino Uhuru village in Mombasa Saturday after the Supreme Court awarded victims of lead poisoning Sh1.3 billion and Sh700 million for cleaning the environment.

The apex court affirmed the trial court’s award to residents of the informal settlement affected by pollution from Metal Refinery, a lead-acid battery recycling factory.

In a landmark verdict, the Supreme Court also upheld the Environment and Lands Court (ELC) ruling that ordered Sh700 million for the restoration of the contaminated land.

The residents had lived near the factory from 2006 until its closure in 2014. The factory, engaged in lead-acid battery recycling, emitted toxic waste, which contaminated the environment causing various health complications, resulting in more than 20 deaths.

Yesterday, women, men, children, and even the sick turned up to celebrate the win of a court battle that has taken nearly a decade.

Others shed tears of joy as they described their protracted court battle with State agencies and tycoons who operated the factory near their homes as a treacherous wait.

READ: Supreme Court gives hope to Owino-Uhuru residents in pollution case

Some, like Rukia Hamisi, said they shed tears after remembering the pain and anguish their children went through before they succumbed to the poison.

Other victims

“If only the reward could bring my son back. I’m happy for other victims as they can get money to seek treatment in South Africa. I never thought this day would come,” she said.

In 2018, Hamisi’s son, Yusuf, died of complications linked to high lead levels. He was among the 18 children diagnosed with high levels of lead in their blood.

“The boy just collapsed on New Year’s Eve and began sweating. I gave him milk and rushed him to the hospital, but he died on January 1, 2018,” said his father, Hamisi Nyoka.

Holding his crutch in one hand, Alfred Ogola watched the dance by his fellow residents while on a plastic chair, complaining of endless pain and weak legs.

His case was one of regrets, as he was the village elder during the height of pollution and was used to quell the uprising against the factory.

He could not foresee the grim future of his family, which is now ravaged by diseases linked to poisonous waste.

Ogola, 70, and his family of 11 are all sick. They all experience muscle pains, headaches, joint swelling, and diarrhoea. One daughter lost her eyesight.

“I am surprised and happy to see the end of this case, but I am celebrating with a lot of pain. Lead poisoning has paralysed me, and I cannot walk properly or stand for long. I urge the government to expedite the compensation of all those affected so we can buy drugs. I have relied on milk all along, and at times I lack money to buy it,” he said.

Yesterday, the verdict was delivered by Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko.

It affirmed that Metal Refinery (EPZ) Ltd must bear the burden of compensating the victims of pollution and also cover the cost of restoring the environmental degradation.

READ: Uhuru Owino residents head to Supreme Court as Sh1.3b payout for lead pollution stalls

The Supreme Court judges stated that the Court of Appeal was wrong to interfere with the Sh1.3 billion granted by the Environment and Land Court judge. They noted that the amount was neither excessive nor based on irrelevant factors.

Personal injury

“It is our finding that the ELC Court arrived at the correct amount in terms of compensation for personal injury and loss of life; the amount was neither excessive nor did the court consider an irrelevant factor,” they ruled.

The bench, led by Justice Mohammed, further clarified: “The Court of Appeal, on its part, however, arrived at the wrong conclusion in its finding that the persons were not identifiable. For the avoidance of doubt, we affirm the sum of Sh1.3 billion issued by the trial court on account of general damages for loss of life and personal injury.

The amount is not only for the benefit of the 10 appellants led by Irene Odhiambo but for the 450 households and residents of Owino Uhuru village, which encompasses an approximate 13.5 acres.”

The judges also found that the Court of Appeal erred in dismissing the restorative orders issued by the ELC, including the award of Sh700 million for environmental cleanup.

In granting the compensation, the judges reaffirmed that those responsible for environmental degradation must not only compensate victims but also bear the cost of restoring the damage.

The judges emphasised the constitutional rights of the residents, including their right to life, a clean and healthy environment, and access to clean water, which had been severely violated by the factory’s operations and the failure of state agencies to regulate it.

“We are aware that at the trial court, the number of persons who were stated to have died as a result of lead exposure was captured at 20. The World Health Organisation report titled ‘Exposure to Lead: A Major Public Health Concern’ states that the adverse effects of lead exposure may result in death, disability, adjusted life years, mild mental retardation, and cardiovascular outcomes. Young children and pregnant mothers are also said to be the most susceptible to the adverse effects of lead,” the judges noted.

“The most critical effect on young children is its subtle impact on intelligence quotient (IQ); lead exposure has therefore been linked epidemiologically to attention deficit disorder and aggression. Exposure of pregnant women to high levels of lead can cause miscarriage, stillbirth, premature birth, low birth weight, and malformations. Chronic lead exposure commonly causes haemological effects, such as anaemia, or neurological disturbances, including headache, irritability, lethargy, convulsions, muscle weakness, ataxia, tremors, and paralysis. The report also noted that long-term exposure to lead may contribute to the development of cancer.”

The judges also pointed out the evidence provided by the clinical officer in charge of Mikindani Health Centre, who reported treating about 300 patients from Owino Uhuru, most of whom presented with symptoms suggestive of upper respiratory tract infections, allergies, and diarrhoea. Additionally, medical reports from Gama Hospital identified heavy metal poisoning, joint pain, anaemia, goitre, and other ailments.

“We find that in this case, the harm was in the soil, air, and water, and it also affected the health of humans. There was a direct effect, as shown by the medical reports. The effects on humans and the environment were therefore not a one-off event, but as stated elsewhere in this judgment, a continuous violation that persisted for more than seven years when Metal Refinery was operating and subsequently thereafter,” the court ruled.

Public participation

The court found that the factory’s operations, under the watch of the National Environment Management Authority (Nema) and other government agencies, were conducted without an adequate Environmental Impact Assessment (EIA) or public participation, thereby violating the residents’ rights.

“There is no doubt that Nema’s actions and inactions provided the causal link between Metal Refinery’s negligence and the injury occasioned to the appellants,” the judges found.

According to the judges, Nema had numerous opportunities to prevent harmful discharges from the factory, but it failed in its mandate, leading to the suffering of the residents. They also emphasised that the Export Processing Zones Authority (EPZA) and the Ministry of Water were also responsible for their actions or inactions that allowed the factory to continue operating without proper licensing.

“We, therefore, find that the Court of Appeal was right in holding that Nema bore a greater responsibility and that Nema and the Export Processing Zones Authority were the main actors in the cause of deleterious activities, with the liability of other actors being either passive or reactive about the pollution,” the judges ruled.

No evidence

The court further stated that the Ministry of Water was responsible for issuing a licence to Metal Refinery in 2006 without an EIA, despite the factory’s failure to obtain one. It also dismissed EPZA’s defence, stating there was no evidence that it took action to close down the factory for operating without a licence.

ALSO READ: Residents of Owino Uhuru stricken by deadly effects of lead poisoning

The court emphasised that compensation, both monetary and non-monetary, should address the harm caused to health, loss of life, and environmental degradation. It also directed that the factory and Nema clean up the soil and water and remove any waste deposited within Owino Uhuru village within four months.

“On our part, we also find that there was sufficient evidence for the trial court to make a finding on compensation,” the court ruled.

The judges noted that the ELC court had the opportunity to observe witnesses and examine medical reports, including those from the Deputy Government Chemist, which indicated elevated blood lead levels and high levels of lead in the soil, dust, and water—particularly hazardous for children and residents who spent time in enclosed spaces.

The petitioners, led by Irene Odhiambo, Millicent Awaka, Elias Ochieng, and Jackson Osenya, filed a petition in 2016, seeking compensation for the harm to their health, environment and loss of life.

The court’s ruling reinforced the principle that “a polluter must bear the burden of compensating the victims of pollution and restoring the environmental degradation caused.”

Centre for Justice Governance and Environmental Action Executive Director Phyllis Omido yesterday joined residents in celebrating the Supreme Court win.

She claimed 300 residents died while more than 100 women had miscarried.

“There are those who fought with us but died without seeing justice, which saddens us. Even after seeing justice today, we will keep fighting to ensure full compensation and restoration,” she said.

A human rights defender, Kelly Ngeti, described the ruling as historic but demanded that all those responsible for the poisoning be held to account.