Residents outraged Sh1.3bn judgment deferred third time

The Appeal Court in Mombasa has yet again deferred delivery of the judgment in which Owino Uhuru residents had been awarded Sh1.3 billion compensation for lead poisoning in 2020.

The Appellate Court was first scheduled to deliver its verdict on December 2, 2022, but deferred it to February 17 this year, and then pushed it to March 17.

However, on Thursday evening, Deputy Registrar of the Court of Appeal Harrison Adika wrote to the residents, saying the judgment has been deferred to next month on April 14.  

“I have been directed to inform you the judgment on this appeal that was to be delivered on 17-03-2023 has been deferred to Friday 14 April 2023. We regret any inconvenience caused,” read part of the email from the court

On Wednesday, a group of the residents and rights activists pitched tents outside the court building, demanding the judges deliver the judgment  as planned.

However, the court cautioned the residents against trying to exert pressure on the court to adjudicate the matter in any way.

The Judiciary requested the lawyers of the Owino Uhuru residents to guide their clients to stop picketing or demonstrating outside the Court of Appeal in Mombasa.

Phyliss Omido, the executive director of the Centre for Justice Governance and Environmental Action, told the Star they will heed the request of the Court of Appeal and police not to demonstrate outside the court building.

However, on Thursday evening, Omido said, they received yet another email from the Court of Appeal Deputy Registrar’s office that the matter has been pushed to next month.

“We are really worried about what is going on at the Court of Appeal. This case was heard and concluded, the judges are now either expected to uphold the High Court decision to award the residents the Sh1.3 billion compensation or nullify it. What is so complex about it?” Omido asked.

On Thursday, the Deputy Registrar of Court of Appeal told the residents, “I’m instructed by the Presiding Judge to convey to you that regrettably and on account of the complexity of the matter, it has taken longer than originally anticipated to finalise the same.

“It is, however, not right for any of the parties to attempt to exert pressure on the Court to adjudicate the matter in any way and we request you to guide your respective clients to desist from doing so.”

The Court of Appeal said the residents should channel any grievances they might have with the court through their advocates.

“We trust what was experienced today will not recur,” the Court of Appeal said.

On Friday, Omido asked how the matter has turned out to be complex and has been deferred four times at the tail end of delivering a judgment.

“Apparently, this matter has been deferred four times now. This has never been witnessed in this country and one wonders what is happening,” Omido said.

The residents had in 2016 filed a class action suit against the ministries of Environment and Health, the National Environment Management Authority (Nema), Export Processing Zone Authority (EPZA), Penguin Paper and Book Company and the lead smelting factory, Metal Refinery EPZ Ltd, seeking Sh2 billion damages.

The Metal Refinery EPZ Ltd used to extract lead from used car batteries, and in the process emitted fumes containing lead and released untreated acidic water to the environment.

The company was closed in 2014 after at least five deaths were reported. So far, more than 50 deaths allegedly related to lead poisoning have been reported within the Owino Uhuru slum.

In July 2020, Environment and Lands Court Judge Ann Omolo ordered  the residents be awarded Sh1.3 billion for deaths, sickness and damages caused by emissions from the lead-smelting factory.

The court ruled that Nema bore the greatest responsibility for damages at 40 per cent, the Mental Refinery EPZ bore 25 per cent of the damages and the two ministries were each found 10 per cent liable.

The Paper and Book Company was declared liable for five per cent, but the Mombasa county government was absolved of  any responsibility.

They were given 90 days to pay the damages.

However, Nema and EPZA appealed, delaying the quest for justice by the residents.  The Court of Appeal has also deferred the delivery of the judgment three times, forcing the residents into the streets.

Omido said it has been three years and the residents have continued to suffer.

“The residents are in dire need of treatment. The majority are suffering from kidney problems. Why don’t they just be awarded what is rightfully theirs? In this country, we have a culture whereby some people get compensated and others will never get compensated at all,” she said.

Some of the residents, who are victims of the lead poisoning, expressed frustrations with the delay.

Jackson Wanyama from Owino Uhuru lost two children and his wife to lead poisoning.

“It pains me that we are being taken in circles as the ruling keeps on getting postponed, I want justice to be served,” Wanyama said.

Resident Janet Ongira said the lead poisoning effects left her son with mobility difficulties as he cannot walk well, and it also affected his memory.

“My son was normal just like every other kid, but now he can’t walk well. The lead emissions also affected his brain. He is so forgetful that he has had to repeat classes in school,” Ongira said.

Anastacia Wafula called on President William Ruto to intervene and ensure that they get justice.

“The money in question is not even enough to compensate the 4,000 people affected. Let us get paid so that some of us can seek treatment,” she said.

Muslim for Human Rights (Muhuri) Rapid Response Officer Francis Auma said that it was inhumane to delay justice to the victims and their families.

“Enough is enough! There should be no further postponement of the ruling. these people have waited for a long time. We are here to show the world our frustrations with the justice system, we will camp here until we get the ruling,” Auma said.

(Edited by V. Graham)