Export Processing Zone of Kenya & 10 Ors  v The National Environment Management Authority & 6 Ors (Supreme Court of Kenya) (Petition E021 of 2023) [2024] KESC 75 (KLR)(6 December 2024)Supreme Court of Kenya

Decision available at: https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/75/eng@2024-12-06

Issues and prayers sought

The Supreme Court of Kenya considered two appeals from a judgment from the Court of Appeal at Mombasa that addressed two consolidated appeals of a lower court judgment. The plaintiffs in the original case, members of the Owino-Uhuru village in Mombasa County and an NGO, filed a petition asking the Environment and Land Court (ELC) to order compensation and other remedies to address damages caused when government authorities authorized the Metal Refinery EPZ Limited to process lead alloys from scrap metal batteries which resulted in lead poisoning, illnesses and deaths in the community.  Export Processing Zone of Kenya & 10 Ors v. National Environment Management Authority & 6 Ors (Petition E021 of 2023) [2024] KESC 75 (KLR) (6 December 2024) at para. 3. The plaintiffs sought declarations that  “their right to life, rights to a clean and healthy environment, clean and safe water and the highest attainable standard of health have been violated by the actions and omissions” of the Export Processing Zone Authority (EPZA) and other government respondents in this case. Id. at para. 5.  The plaintiffs asked the court for compensation, an order mandating a scientific study on lead exposure, cleanup of Owino–Uhuru village, regulations for lead manufacturing and the oversight of hazardous materials. Id. at para. 6. They also sought a declaration that these entities violated their “right to access to information about how exposure to lead would affect them and precautionary measures to be taken.” Id. 

Procedural history 

The Environment and Land Court (ELC) determined that the respondents violated the plaintiffs’ rights, ordering respondents to pay Kshs. 1.3 billion in compensation for personal injuries and deaths.  Id. at para. 21. The ELC determined that plaintiffs had proven not just a likelihood of violation of their rights but “had proved actual violation to their personal life, environment (soil and dust), abodes and the water which they consumed.” Id. at para. 7. The ELC directed the respondents to remediate the soil, water, and waste with a default payment of Kshs. 700 million if they failed to comply. Id. at para. 21. In adjudicating the case, the ELC carefully reviewed the culpability of each party and distributed responsibility and corresponding liabilities for the injuries among the parties as follows: the EPZA, the Ministry of Environment, and the Ministry of Health were each assigned 10% liability; the National Environment Management Authority (NEMA) 40%; Metal Refinery 25%; and Penguin Paper and Book Company 5%. Id. at para. 19. The ELC exempted a few respondents as well.

The EPZA and NEMA subsequently filed separate appeals, which the Court of Appeal consolidated. The appellants requested the Supreme Court to address several key questions: whether the Court of Appeal misinterpreted or misapplied the Constitution; whether it erred in its assessment and allocation of liability and damages; whether the precautionary and polluter pays principles were applied appropriately; if the liability and damages were accurately determined; and the validity of the default payment of Kshs. 700 million. Id. at paras. 22-24.

On the issues (Court of Appeal)

Regarding jurisdiction, the Court of Appeal concluded that Section 13 (3) of the ELC Act explicitly provides the ELC the power to hear and resolve cases involving fundamental rights related to a clean and healthy environment.  Id. at para. 25.  Regarding the substantive issues, the Court of Appeal determined that they revolved around the legality and appropriateness of the trial court’s conclusions about the liability of EPZA, NEMA, and other State agencies and justification for the amount awarded in damages and compensation.  Id. at para. 26.

The Court of Appeal held that while primary liability for pollution rests with private operators, State agencies would share some responsibility if they failed to regulate operators. Id. at paras. 26 to 30. The Court proceeded to reassign liability as follows: NEMA 30%; EPZA 10; each of the ministries 5%; Metal Refinery (EPZ) 40%; and the Penguin Paper Company 10%. Id. at para. 31. 

Regarding the amount for damages, the Court of Appeal sent the case for retrial on the grounds that the trial court failed to consider relevant factors, relied on inapplicable jurisprudence, and could not identify the beneficiaries, while the award of the 700 million for restoration was not specifically pleaded or proven.  Id. at paras. 34-35.

Issues for determination before the Supreme Court

Following the decision by the Court of Appeal, EPZA (1st appellant) appealed to the Supreme Court for clarification on State agencies’ responsibilities for environmental impact assessments, its liability, and the fairness of the rehearing order. Id. at paras. 37-38. The community members and related NGO (2nd-11th appellants) also appealed the judgment on compensation and the apportioning of liability and argued that the rehearing order obstructed their right to access to justice. Id. at paras. 39-40. They specifically challenged the notion that the plaintiffs “who are members of an economically disadvantaged community” should have to “shoulder the onerous burden of calling over 4,000 people to testify in court.” Id. at para 39. NEMA’s cross-appeal addressed its statutory duties, questioned the application of the polluter pays principle to public entities, and argued that a rehearing was not warranted. Id. at paras. 41-42.

Application of the 2010 Constitution

The EPZA argued that the Court of Appeal erred by applying the 2010 Constitution to acts that occurred before its adoption. Id. at para. 86. The Supreme Court recognized that since the pollution continued until the factory’s closure in 2014, “every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues.”  Id. at para. 89 (citation omitted). The court confirmed that the 2010 Constitution and  law existing since 1990 obligated the state entities “to ensure sustainable management and conservation of the environment.  Id. at para. 96. 

Apportionment of liability 

The Supreme Court addressed the responsibilities of EPZA and NEMA regarding environmental degradation, highlighting their attempts to evade liability by blaming others, and recognizing this is common practice in cases with multiple parties. Id. at para. 97. After careful analysis, the Supreme Court found “no reason to disturb the Court of Appeal’s finding on liability.” Id. at para. 128. 

On damages for Constitutional rights violations

The Supreme Court recognized that Article 23 of the Constitution states that courts may grant any appropriate remedy for infringement of constitutional rights, including compensation.  Id. at para. 129. The Court reviewed its own precedents recognizing that “the crafting of remedies in human rights adjudication goes beyond the realm of compensation for loss as it is principally for vindicating rights.” Id. at para. 133. In one case, the Court held “though the appellants did not lead any evidence of the loss they may have suffered due to the violation of their right and freedom from inhuman treatment, it was important for the court to vindicate and affirm the importance of the violated rights.” Id. (citing to Wamwere & 2 others v Attorney General S.C. Petition No. 34 & 35 of 2019 [2024] KECA 487 (KLR)). The Court quoted another prior decision as well:  “[O]nce the burden of proving a violation was discharged, it was not necessary for the appellants to prove any damage or loss so as to be entitled to any of the reliefs contemplated in Article 23(3).” Id. (citing In CMM (Suing as the next friend and on behalf of CWM) & 6 Others vs. The Standard Media Group & 4 Others, [2023] KESC 68 (KLR)).

In addressing the amount of damages, the Supreme Court distinguished between tortious damages and constitutional rights damages. Id. at paras. 134-38. The Court explained that the “differences in the approach between tortious claims and constitutional claims reflect the varying nature of the harm and the different objectives of each type of claim. While tortious claims are primarily about compensating specific losses, constitutional claims often aim to address broader issues of justice and the protection of fundamental rights.” Id. at para. 138.  

Applying this to the case at hand, the Supreme Court found that the Court of Appeal erred in finding there was no credible evidence of harm presented.  Id. at paras. 139 and 142. In constitutional rights violations claims, applicants do not need to prove harm that comes from the violation to seek remedies since “the violation of constitutional rights itself warrants redress” Id. at para. 140. This principle guarantees justice to victims and enforces the integrity of constitutional rights. Id. at para. 141. 

Representative capacity

The Supreme Court affirmed the ELC’s finding that the 11th appellant, a non-profit organization “was well within its right to bring the suit on behalf of the residents of Owino-Uhuru Village.” Id. at para. 150. This holding affirmed the ELC’s determination that the injuries suffered by all appellants were both “personal and environmental and that it would amount to duplicity of suit if each of the petitioners led their separate petitions seeking similar orders.” Id. at para. 143. The ELC found “nothing wrong in the suit having been brought for singular and communal proposes/capacities.” Id. 

The award of damages

The Court of Appeal had dismissed the ELC’s award of Kshs. 1.3 billion for loss of life and personal injury. The Supreme Court reversed the Court of Appeal and reinstated the damage award, clarifying that “amount is not only for the benefit of the 2nd to 11th appellants but for the 450 households and residents of Owino Uhuru Village which encompasses an approximate 13.5 acres.” Id. at para. 163. The Court of Appeal had dismissed the damages award after deciding no evidence had supported the amount awarded. The Supreme Court explained that “an appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles” which was not the situation here. Id. at para. 156.

On environmental restoration 

The Supreme Court also reversed the Court of Appeal’s decision to dismiss the ELC’s order requiring cleanup by state agencies and a default payment of Kshs. 700 million to the 11th appellant for failure to comply. Id. at para. 174.

The Supreme Court defined the polluter pays principle to mean:

[T]he absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “sustainable Development” and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

Id. at para. 166. The Court also explained that the polluter pays principle comes from Principle 16 of the Rio Declaration and is also found in Kenyan domestic law. Id. at paras. 164-165. The ELC had ordered the polluter and government agencies to “clean- up the soil, water and remove any waste deposited within the Owino-Uhuru Village by Metal Refinery” within 4 months. Id. at para. 168. If they did not comply, “the sum of Kshs. 700,000,000 becomes due and payable to the 11th appellant herein to coordinate the soil/environmental clean-up exercise.” Id. The 11th appellant was the NGO representing the community. The Supreme Court recognized that the 11th appellant has been “present from the beginning and have championed the rights of the residents of Owino-Uhuru village.” Id. at para. 171. The Supreme Court then acknowledged that “reports filed in court present [ ]  step to step measures as to what ought to be done to restore the contaminated land.” Id. The Court also determined “the recommendations present clear restoration measures, which are not technical in nature. We are also minded that Principle 15 of the Rio Declaration and Section 3 (5) of the EMCA opine that lack of full scientific certainty should not be used as a reason for postponing cost-effective action to prevent environmental degradation.” Id. at para. 173. The Court also acknowledged “the duty to protect the environment is not the sole preserve of the State; if there is failure on their part, individuals and persons of good will shall embrace this initiative- as has been done by many non-governmental organizations.” Id. 

The Supreme Court reversed the Court of Appeal and altered the ELC’s award as follows: 

We are . . . alive to the fact that considerable time has passed since the orders of the ELC were issued. Within that frame time the 1st appellant and the respondents may have taken restorative measures which ought to have been accounted for before the default clause comes into place. We therefore find it fit to direct the respondents to file at the ELC in Mombasa, their respective reports, if any, within three (3) months of this decision, on the various restorative measures they have undertaken in line with the judgement of the ELC and the directions issued by the Court of Appeal or on their own initiative. The default clause should thereafter take effect if no restorative measures have been undertaken by the 1st appellant and the respondents. The ELC court will ascertain whether there is need for further directions to restore the damage caused based on the reports filed.

Id. at para 174.

Finally, the Supreme Court directed the respondents to comply with the Basel Convention and the Bamako Convention as it cleans up the waste, including specific reference to managing batteries and recovered lead.

Costs

With regard to costs, the Court determined the “appeal is of a public interest nature” and directed parties to bear their own costs. Id. at para. 182.