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Supreme CourtPartially AllowedPetition E021 of 2023

Export Processing Zone Authority & 10 others v National Environment Management Authority & 3 others

Supreme Court of Kenya
6 December 2024
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
23,904 words in judgment
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·~96 min to read original · ~4 min brief

The bottom line

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State agencies can be held liable for environmental harm, even without proof of injury.

What this practically means

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The Supreme Court ruled that anyone can sue to protect the right to a clean and healthy environment without showing personal loss. State agencies like EPZA and NEMA are not exempt from the 'polluter pays' principle when they violate environmental laws. The court also reinstated Kshs 1.3 billion in damages for personal injury and loss of life, and Kshs 700 million for restoration, sending the case back to the Environment and Land Court to monitor compliance.

Executive summary

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This consolidated appeal arises from a judgment of the Court of Appeal at Mombasa which had varied the decision of the Environment and Land Court (ELC) in a constitutional petition concerning lead poisoning in Owino-Uhuru Village, Mombasa. The 2nd to 11th appellants, residents of the village, had sued various State agencies and the polluting company, Metal Refinery (EPZ) Limited, for violation of their rights to a clean and healthy environment under articles 42, 69, and 70 of the Constitution. The ELC found the rights violated, apportioned liability among the respondents, and awarded Kshs 1.3 billion in damages for personal injury and loss of life, and Kshs 700 million for environmental restoration. The Court of Appeal upheld the finding of liability but varied the apportionment, set aside the damages award, and remitted the matter to the ELC for rehearing on quantum. The Supreme Court, in a unanimous judgment, upheld the Court of Appeal's determination on liability, finding that both EPZA and NEMA bore responsibility for the violations. However, the Supreme Court reversed the Court of Appeal's decision on damages, reinstating the ELC's award of Kshs 1.3 billion. The court held that under article 70(3) of the Constitution, an applicant does not need to prove loss or injury to obtain compensation for environmental rights violations, and that the ELC had sufficient evidence to assess damages. The court also reinstated the Kshs 700 million restoration award, subject to the respondents filing reports on restorative measures already taken, with the ELC to monitor compliance. The court dismissed EPZA's appeal and NEMA's cross-appeal, and ordered each party to bear their own costs, noting the public interest nature of the case.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal misinterpreted and misapplied the provisions of article 69 of the Constitution as read with article 70(2) of the Constitution.
  2. 2.Whether the Court of Appeal erred in its assessment of liability.
  3. 3.Whether the Court of Appeal erred in its interpretation of article 23 of the Constitution specifically the available remedies once a court has determined that there were violations of rights.
  4. 4.Whether the Court of Appeal erred in reversing the ELC Court's award on damages.
  5. 5.Whether the Court of Appeal erred in remitting the matter back to the ELC for re-assessment of the award of damages.
  6. 6.Whether the appellants are entitled to the reliefs sought.
  7. 7.Who shall bear the costs of the appeal?

Key legal issues

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01

Whether the Court of Appeal erred in its interpretation of article 23 of the Constitution regarding remedies for constitutional violations.

Holding

The Court of Appeal erred in its interpretation of article 23. The Supreme Court held that constitutional damages are distinct from tortious damages, and under article 70(3), an applicant does not need to prove loss or injury. The court found sufficient evidence existed for the ELC to assess compensation.

Reasoning

The Supreme Court distinguished between tortious claims (aimed at restoring the injured party to their pre-tort position) and constitutional claims (aimed at vindicating rights and deterring future violations). It cited its decisions in Wamwere v Attorney General and CMM v Standard Media Group to support the principle that once a violation is proved, the court must grant appropriate relief, including compensation, even without proof of specific loss. The court found that the ELC had ample evidence from witnesses, government chemists, and parliamentary reports to assess damages, and the Court of Appeal erred in holding otherwise.

p. 42
02

Whether the Court of Appeal erred in its assessment of liability, particularly the apportionment of liability to EPZA and NEMA.

Holding

The Supreme Court upheld the Court of Appeal's determination on liability, finding that both EPZA and NEMA were liable for the violations. EPZA violated section 23(c) of the EPZ Act by issuing a license without a valid EIA license, and NEMA failed in its statutory mandate to properly assess and monitor the project.

Reasoning

The court found that EPZA was aware an EIA license was necessary but relied on a letter from NEMA that referred to a different parcel of land. The presumption of regularity did not excuse EPZA from its own duty under section 23(c) of the EPZ Act. For NEMA, the court found it failed to follow proper EIA procedures, allowed 'test runs' without legal basis, and did not take adequate enforcement action despite clear evidence of harm. The court emphasized that State organs have a collective obligation under article 69 of the Constitution to protect the environment.

p. 38
03

Whether the Court of Appeal erred in reversing the ELC's award of damages (Kshs 1.3 billion) and restoration orders (Kshs 700 million).

Holding

The Supreme Court reversed the Court of Appeal's decision on damages and restoration. It reinstated the ELC's award of Kshs 1.3 billion for personal injury and loss of life, and reinstated the Kshs 700 million restoration award, subject to the respondents filing reports on restorative measures already taken.

Reasoning

The court found that the ELC's award was not excessive and was based on sufficient evidence, including medical reports and parliamentary committee findings. The court distinguished the case from Orbit Chemicals, noting that the ELC had properly applied constitutional principles. On restoration, the court found that the claim was specifically pleaded through the orders of mandamus sought, and the recommendations in the various reports provided clear, non-technical restoration measures. The court directed the ELC to monitor compliance with restoration orders.

p. 46

Legal principles established

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  • Under Article 70(3) of the Constitution, you don't need to prove loss or injury to sue for environmental rights violations.
  • The 'polluter pays' principle applies to State agencies when they breach environmental duties and cause harm.
  • All State organs, not just NEMA, have a duty under Article 69 to protect the environment.
  • A State agency cannot rely on the 'presumption of regularity' to avoid investigating another agency's failure to follow due process.
  • In class action suits, compensation depends on clearly defining the affected group so the court can order specific, enforceable remedies.

Court orders

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  1. 1.The 1st appellant's appeal dated August 1, 2023 and filed on August 24, 2023 is hereby dismissed.
  2. 2.The 1st respondent's cross-appeal dated April 17, 2024 and filed on April 17, 2023 is hereby dismissed.
  3. 3.The 2nd -11th appellants' petition of appeal dated August 5, 2023 and filed on August 7, 2023 is hereby allowed only to the extent of our finding that the Court of Appeal determination on the award of damages for loss of life and personal injury herein is reversed with an order affirming the ELC's findings.
  4. 4.The matter is hereby remitted back to the ELC in Mombasa to deal with the question of compliance with the restoration orders by the 1st appellant and the Respondents herein and in line with our determination.
  5. 5.Parties shall bear their respective costs before the ELC, Court of Appeal and this court.
  6. 6.We hereby direct that the sum of Kshs 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the appellants.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Civil Appeal No E004 of 2020 as consolidated with Civil Appeal No E032 of 2021
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition No E021 of 2023

Relief refused

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Setting aside of the Court of Appeal's orders remitting the petition for rehearing and taking of additional evidence

The Court of Appeal was acting within its discretion under Rule 33 of the Court of Appeal Rules.

Costs

Parties shall bear their respective costs before the ELC, Court of Appeal and this court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The 2nd -11th appellants' petition of appeal dated August 5, 2023 and filed on August 7, 2023 is hereby allowed only to the extent of our finding that the Court of Appeal determination on the award of damages for loss of life and personal injury herein is reversed with an order affirming the ELC's findings.
p. 50 Final orders on damages
Parties shall bear their respective costs before the ELC, Court of Appeal and this court.
p. 50 Costs order
For the purpose of this article, an applicant does not have to demonstrate that any person has incurred loss or suffered injury.
p. 39 Burden of proof in environmental rights claims
the State and State agencies are not exempt from the application of the polluter pays principle, the reason being that, the State's liability occurs when it violates its statutory or constitutional obligation or duty, (the wrongful act), and a linkage is established between the wrongful act and the damage or injury caused by the environment (the causal link).
p. 18 Application of polluter pays principle to State agencies
the presumption of regularity does not oust a State organ's responsibility to probe the administrative duties of another institution where in its opinion it finds that such institution has not complied with due process.
p. 35 Limits of the presumption of regularity
compensation in class action and representative suits hinges on defining the class or group represented. Once the group is clearly identified, the court can tailor the remedy to ensure that it is appropriate, specific, effective and enforceable for the affected parties.
p. 44 Compensation in representative suits

Key timeline

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2024-11-22
Supreme Court delivers judgment in Export Processing Zones Authority v NEMA & 10 others.
2023-08-24
EPZA files appeal against Court of Appeal decision.
2023-08-07
2nd-11th appellants (affected residents) file cross-appeal.
Prior to 2023
Environment and Land Court (ELC) awards Kshs 1.3 billion in damages and Kshs 700 million for restoration.
Prior to 2023
Court of Appeal reverses ELC's damages and restoration orders.

Practical implications

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For lawyers

Strengthen environmental class actions

This ruling clarifies that constitutional damages under Article 70(3) do not require proof of loss, making it easier to bring representative suits for environmental harm. When drafting pleadings, clearly define the affected class to ensure the court can tailor specific, enforceable remedies. Also, note that State agencies cannot hide behind the 'presumption of regularity' to avoid liability.

For businesses

Review environmental compliance duties

Businesses operating in Export Processing Zones must ensure they have valid EIA licenses before starting operations. EPZA's reliance on a flawed NEMA letter did not shield it from liability. The 'polluter pays' principle applies to all, including State agencies. Conduct thorough due diligence on environmental approvals and monitor ongoing compliance to avoid costly damages and restoration orders.

For individuals

Know your environmental rights

You can sue to enforce your right to a clean and healthy environment without showing personal injury or loss. If you live near an industrial zone and suffer harm, you can join a class action. The court reinstated Kshs 1.3 billion for affected residents, showing that courts can award substantial compensation. Document evidence of harm and seek legal help to file a claim.

Frequently asked questions

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Can I sue for environmental damage in Kenya without proving I was harmed?+

Yes. Under Article 70(3) of the Constitution, you do not need to show personal loss or injury to file a case for a clean and healthy environment. The Supreme Court confirmed this in the EPZA case, making it easier for Kenyans to hold polluters accountable.

Are government agencies liable for environmental pollution in Kenya?+

Yes. The Supreme Court ruled that State agencies like EPZA and NEMA are not exempt from the 'polluter pays' principle. If they violate environmental laws and cause harm, they can be ordered to pay damages and restore the environment.

What is the 'polluter pays' principle in Kenyan law?+

It means the party responsible for pollution must bear the cost of managing it to prevent harm to human health or the environment. The Supreme Court applied this principle to State agencies, holding them liable for environmental violations.

How much compensation was awarded in the EPZA environmental case in Kenya?+

The Supreme Court reinstated Kshs 1.3 billion for personal injury and loss of life, and Kshs 700 million for environmental restoration. The case was sent back to the Environment and Land Court to monitor compliance with restoration orders.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Export Processing Zone Authority & 10 others v National Environment Management Authority & 3 others", Case Analysis (2024). Petition E021 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/75/eng@2024-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.