VICTIMS OF LEAD POISONING

AG appeals against Sh1.3bn award to Uhuru Owino residents

Judge Omolo apportion liabilities to the Health and Environment ministries, Nema, EPZA, a metal refinery company and Penguin Paper and Book Company.

In Summary

• On July 16, a court ruled in favour of 3,000 victims of lead poisoning caused by a smelting factory that was put up within the informal settlement.

• Most victims have been left with lifetime conditions, while some lost their families to lead poisoning.

The Attorney General has filed a notice to appeal against the Sh 1.3 billion compensation awarded to the residents of Owino Uhuru slum.

On July 16, the Environment and Lands Court in Mombasa ruled in favour of 3,000 victims of lead poisoning caused by a smelting factory that had been put up within the informal settlement. The victims had filed a class action lawsuit. 

Most victims have been left with lifetime conditions, while some lost their families to lead poison. Despite their grief and suffering, however, the AG now seeks to have the award overturned by the Court of Appeal.

If his application is allowed, the matter is expected to be heard before a three-judge bench that will then decide on whether or not the residents should get the cash.

The appellate judges will also decide on the cleanup exercise that the court had directed be done on the slums within four months, failing which liable parties will pay a Sh700 million fine.

In a ruling by the Environment court, Judge Anna Omolo gave the parties 90 days to pay the award, but with the looming appeal, the residents' quest for justice seems far from over. She apportion liabilities to the ministries of Health and Environment, the National Environment Management Authority (Nema), the Export Processing Zones Authority (EPZA),  the metal refinery company and Penguin Paper and Book Company.

The court found Nema to have failed in its mandate by allowing the factory to operate within the informal settlement. The judge said it failed to protect the rights of the residents to a clean and safe environment by issuing licences before it made sure waste from the company would be well disposed of.

She further said the authority should have ensured prevention of fugitive emission from the factory as well as the cleaning of all the split from the air pollution control unit, instead of issuing demand letters as it did.

Nema was, therefore, held 40 per cent liable for the deaths and damage caused as it had lied about shutting down the company in 2012, yet there was transfer of environmental impact assessment licence, which had been issued earlier to the metal refinery in 2013 to another company.

It was also fined for licensing the factory that was to operate in Kilifi county and letting it illegally operate in Owino Uhuru, Jomvu, Mombasa.

The metal refinery, which the court said was 25 per cent liable, was accused of concealing its operations by transferring the licence to Max Industries Limited.

The EPZA was also found guilty of issuing a factory operation licence without a proper document from Nema, instead relying only on letters. It was further held responsible for licensing the's operations in Mombasa, yet it was registered to operate in Kilifi.

The judge said the ministries of Health and Environment were 10 per cent each for approving the factory to operate without proper environmental and health assessments.

Former Nyali MP Hezron Awiti’s company Penguin Paper and Book Company was also held responsible for leasing out its land where the factory was put up.

The court, however, absolved the Mombasa county government. 

The judge gave the guilty parties 90 days to pay the award to the victims. But as the guilty parties fight to escape from paying the award or maybe looking to have lower payouts, the residents continue to reel from the effects of lead poisoning. 

Edited by F'Orieny