by Rosemary Mwanza, Faculty of Law, Stockholm University

Background

On December 6th, the Supreme Court of Kenya rendered a landmark judgment in the Owino Uhuru litigation, a protracted legal battle addressing severe environmental pollution and public health crises in the Owino Uhuru settlement, a low-income settlement in the Mikindani area of Changamwe, Mombasa. Over the years, the community complained of health issues—including respiratory ailments, skin conditions, neurological symptoms, and deaths—attributed to the unsafe release of lead dust and other pollutants into their environment by a nearby lead-acid battery recycling plant, Metal Refinery (EPZ) Limited. The following legal battle sought to hold both the responsible companies for pollution and resulting harm and relevant state agencies accountable for failing to prevent, control, or remedy the pollution. The latest outcome of the winding litigation process is the recent judgment by the Supreme Court.

This post briefly discusses how the judgment by the Supreme Court strengthens the jurisprudence on effective remedies for violations of human rights stemming from corporate environmental harm. Remedies are a cornerstone of the “Respect, Protect, and Remedy” framework, which defines the foundational principles of state and corporate accountability for environmental harm. The Working Group has elaborated the notion of effective remedies concerning victims of business-related human rights violations on the issue of human rights and transnational corporations and other business enterprises (Working Group) in unpacking the Remedies Pillar of the United Nations “Protect, Respect and Remedy” Framework. The Working Group emphasised the need to remove legal, practical, procedural, and jurisdictional barriers to access to remedies as a first step towards ensuring access to effective remedies. The Working Group further elaborated on the importance of adopting an ‘all roads to a remedies approach,’ which means the availability of various judicial and non-judicial mechanisms by states and businesses to address business-related human rights violations. Providing effective remedies entails making various distinct yet complementary forms of preventive, redressive, and deterrent remedies available to rights holders for business-related human rights violations. This layered approach goes beyond one-dimensional reparations, creating a solution that promotes individual justice and institutional transformation.

Litigation history

The litigation commenced at the Environmental and Lands Court (ELC) in 2016 and concluded in July 2020. The ELC is a superior court established under the Environment and Land Court Act of 2011, under Article 162(2)(b) of the Constitution. It holds the same status as the High Court. The ELC is empowered to address violations of constitutional rights to a clean and healthy environment as outlined in Articles 42, 69, and 70 of the Constitution. The Court found that corporate actors and public institutions had violated the right to a healthy environment and other human rights. In its 2016 judgment, the ELC awarded approximately Ksh. 1.3 billion in compensation to the affected residents and apportioned liability as follows: Export Processing Zones Authority (EPZA) – 10%, the Ministry of Environment Water and Natural Resources – 10%, the Ministry of Health – 10%, National Environment Management Authority (NEMA) – 40%; the Metal Refinery (EPZ) Limited -25%, and Penguin Paper and Book Company Ltd – 5%. The trial court issued a declaration that the 2nd – 11th appellants’ rights to a clean and healthy environment, rights to the highest attainable standard of health and right to clean and safe water, and rights to life were violated by the actions and omissions of the NEMA, EPZA and the corporate actors. The Court also directed all the responsible parties to clean up the contaminated soil and water and remove any waste deposited within Owino-Uhuru village within four months of the judgment or pay Kshs. 700 million to the residents of Owino Uhuru in case of default to allow them to coordinate the soil and environmental cleanup exercise. Finally, the ELC ordered the development and implementation of regulations to address potential contamination from lead and lead alloys in manufacturing plants countrywide.

Dissatisfied with the outcome, EPZA and NEMA challenged the trial court’s decision. On appeal, NEMA and the EPZA argued that the polluter pays principle should not be construed to hold EPZA and NEMA responsible for the acts of the operators of the lead-smelting plant. The appellants also challenged the apportion of liability and the ELC’s reasoning in arriving at the sum of Kshs.1.3 million and Kshs 700 as a penalty for failure to clean up within the prescribed 4 months.

In its 2023 judgment, the COA reiterated the constitutional obligation of the state to ensure a healthy environment, holding that violations could arise not only from direct actions but also from inadequate regulation of private activities. The COA affirmed the finding that EPZA and NEMA had breached their duties with respect to the environment by issuing EPZ land EIA licenses without thoroughly assessing the environmental impacts as required under the EPZA Act and the EMCA. The Court of Appeal rejected EPZA and NEMA’s interpretation of the polluter pays principle as one that would place liability on the refinery firm. It revised the trial court’s apportionment of liability by assigning 30% to NEMA, 10% to EPZA, 5% each to the Ministries of Environment, Water and Natural Resources, and Health, 40% to Metal Refinery (EPZ) Limited, and 10% to Penguin Paper and Book Company Limited.

Regarding the compensation awarded, the COA revoked the award of Kshs 1.3 billion because the specific beneficiaries of the remedy had not been identified. The appellate Court annulled the compensation award and remanded the case for a new hearing to reassess the damages with additional evidence. Similarly, the appellate Court revoked the award of Kshs 700 million due from NEMA in case of failure to conduct environmental restoration within the prescribed time, citing the lack of sufficient scientific evidence to justify the award. The COA ordered NEMA to conduct investigations to determine the extent of contamination, undertake a cleanup of the contaminated environment, remediate the environment, and submit periodic progress reports to the ELC.

The crux of the final appeal to the Supreme Court involved challenges from the EPZA and the NEMA against the CoA decision on the apportionment of liability. Concurrently, the residents of Owino Uhuru contested the CoA’s annulment of the financial award, which had initially granted them Kshs 1.3 billion in compensation for personal injury and loss of life due to lead poisoning. They also opposed the nullification of a Kshs 700 million penalty that would accrue from the responsible parties for failure to clean up. The Court affirmed a compensation package amounting to Ksh1.3 billion intended to redress personal injuries, health complications, and loss of life experienced by the affected residents. This compensation is earmarked for approximately 450 households within the settlement. Additionally, the Court ordered the allocation of Kshs700 million for environmental restoration, requiring the cleanup of contaminated soil and water in the affected area. The Supreme Court ordered NEMA to oversee the cleanup and remediation efforts and provide regular progress updates to the local ELC in Mombasa.

How the Supreme Court judgement advances effective remedies for victims of business-related human rights violations

Public-private responsibility for violation of substantive environmental rights

The case named private actors and state agencies as responsible parties. The Supreme Court’s judgment demonstrates that private actors can be held accountable for environmental rights violations that harm individuals and the environment. The Supreme Court underscores the direct applicability of substantive environmental rights as a basis for holding corporate actors accountable for environmental harm. This stance is noteworthy, given that the horizontal application of human rights is not uniformly embraced across all national legal systems. In Kenya, however, this is not true. Although the concept of horizontal application under Kenya’s human rights framework has been in a state of flux, the Supreme Court, without having to address this matter directly—since it has never arisen as a point of contention—has nevertheless affirmed the applicability of the right to a healthy environment to private actors.

With liability for state organs, the Court held that state actors can be held accountable not only for their dereliction of duty but also for their failure to regulate or prevent harmful conduct by private actors. Drawing on the precedent set by the SERAC case decided by the African Commission in 2001, the Supreme Court reasoned that if a state permits private actors to violate constitutionally protected rights with impunity, it can be held responsible for the resulting harm (paragraphs 105 and 125).

Further, in affirming the responsibility of state organs for failure to exercise due diligence in preventing environmental harm or regulating activities of private actors, the Supreme Court affirmed limitations on the presumption of regularity. The presumption of regularity is a principle commonly invoked to lend legitimacy to administrative actions, often treating official acts as valid and procedurally sound unless proven otherwise. While this assumption can streamline decision-making and reduce unnecessary duplication in environmental governance, the latitude offered by such a presumption can allow administrative bodies to avoid thorough examination of the processes underpinning critical decisions concerning activities that carry serious public health and ecological consequences. In this case, EPZA sought to rely on the presumption of regularity in claiming that it relied on the presumption that NEMA and other agencies had conducted the procedures necessary for the grant of a legal EIA license before it granted presumption of regularity of the acts of the other State agencies to grant the EPZ manufacturing license without investigating whether there were procedural lapses of other state organs or that the proposed activities were harmful to the environment and human health, as the latter are the experts in matters related to the environment.

The doctrine of ‘continuous violations’ as a limit to non-retrospectivity

The environmental pollution at the centre of this case commenced in the early 2000s, well before the adoption of the 2010 Constitution. The case was decided based on provisions of the present Constitution. This temporal overlap between the origins of the harm and the implementation of a new constitutional framework raised a critical legal question: should the violations, which began under the old constitutional order, be adjudicated using the standards and protections of the 2010 Constitution? The appellants argued that applying the new constitutional framework would amount to a retroactive application of the law, contravening the principle of non-retrospectivity (paragraph 84). The Supreme Court, however, adopted the doctrine of continuous violations, a principle recognising that certain wrongful acts persist over time rather than occurring as discrete, isolated incidents. While affirming the importance of the non-retrospective application of the law, which protects individuals from ex post facto liability or punishment, the Court reasoned that the pollution and its effects had arisen well before the promulgation of the 2010 Constitution and continued for many years. Consequently, the respondents were subject to the obligations and protections established under the new constitutional framework. This approach underscored the necessity of applying contemporary constitutional standards to address persistent violations effectively.

Recognition of multiple legal pathways to a remedy

One of the ways that the state can ensure that victims of business-related human rights violations have access to remedies is to ensure that the law recognises causes of action that address different fact scenarios on which claims for relief are made. In this case, the Supreme Court’s approach affirmed the relevance of three recovery bases available to litigants to vindicate their claims. In upholding the findings of both the ELC and the Court of Appeal, the Supreme Court determined that the litigants were entitled to pursue a claim under Article 70 of the Constitution. Article 70 establishes the enforcement framework for the right to a clean and healthy environment. It stipulates that any individual alleging that this right, recognised and protected under Article 42, has been, is being, or is likely to be denied, violated, infringed, or threatened may seek redress through the courts. A litigant does not forfeit their right to pursue other legal remedies that may apply to the matter by instituting litigation under Article 42. (Paragraphs 131-132).

While the Owino Uhuru litigation centred on violations of the right to a healthy environment under Article 42 of the Constitution, the Supreme Court’s reasoning extended beyond constitutional guarantees to recognise the relevance of complementary legal doctrines and statutory provisions as legal pathways for accountability. The Court stated that litigants could maintain their claim based on the doctrine of strict liability, which would impose responsibility on parties causing environmental damage regardless of intent or negligence. (paragraphs 103–105). Additionally, the Court held that Section 108 of the Environmental Management and Coordination Act provides a substantive legal basis for challenging the actions or omissions of administrators concerning their statutory duty to protect the environment. Section 08 explicitly imposes an obligation on the National Environment Management Authority (NEMA) to issue environmental restoration orders and to require perpetrators of environmental harm to provide compensation, a duty that NEMA had failed to fulfill. (paragraph 168).

‘Bouquet of remedies’ to address violations of constitutional human rights

Another critical aspect of the judgment is that the Supreme Court affirmed that victims of human rights violations are entitled to a wide range of remedies, whenever appropriate, in terms of Article 70 of the Constitution. (Paragraph 140). Regarding compensation, the Supreme Court took a different view from the COA’s. It distinguished the standard for assessing compensatory damages in cases of human rights violations from the standard applicable in tort claims. While tortious claims primarily focus on compensating specific losses suffered by individuals due to the wrongful actions of others, compensatory remedies for violation of constitutional human rights serve as mechanisms to address broader issues of justice, necessitating the consideration of broader issues including the (a) the nature of the violation; (b) the length of time the alleged violation has taken; (c) impact on the victim and whether there is direct harm; (d) the broader implications of the case, including the need to deter future violations, uphold the rule of law, and ensure that public authorities or private parties respect constitutional rights. (Paragraphs 129-137).

Moreover, the Supreme Court offered a structural remedy by directing the respondents to table periodic reports detailing progress in cleaning up and remediating the damaged environment. Structured remedies play an essential role in human rights violation cases because they address systemic and institutional shortcomings by allowing ongoing judicial oversight and ensuring responsible parties implement meaningful responses to environmental harm and its consequences, an outcome unavailable in cases where courts impose once-off relief.

Conclusion

In conclusion, the Supreme Court’s judgment makes important contributions to developing effective remedies in environmental human rights cases in Kenya. By holding state agencies and business actors accountable, the Court sets a precedent at the highest level of judicial authority that the responsibility to protect environmental human rights in business-related environmental harm is shared. The Court’s use of the doctrine of continuous violations to address long-term environmental harm demonstrates an innovative approach to overcoming obstacles to the recovery of effective remedies posed by substantive legal doctrines. Additionally, the Court’s recognition of multiple legal pathways to access remedies, along with the combination of various forms of reliefs awarded to the applicants, reflects the ‘bouquet of remedies’ approach strengthens the framework for environmental justice for future litigants seeking accountability and effective remedies in Kenya.