Environmental Toxic Injuries in Kenya: Resolving the Compensation Dilemma

Abstract

Environmental toxic injury (ETI) claims in Kenya have faced compensation challenges despite the country having in place liability and compensation systems. The study sought to investigate compensation challenges and explore how such challenges can be addressed for better compensation outcomes. The study objectives were: to analyse the effectiveness of the legal framework designed for enabling compensation for environmental toxic injuries and to draw lessons from other countries, including USA, Japan, South Africa and Nigeria, about compensation for injuries. The study utilised a qualitative design method of research adopting doctrinal research and case study approaches. Data collection methods employed included literature review, interviews, and focused group discussions. The areas under study were Owino Uhuru area in Mombasa and Thange area in Makueni County. The population for the study involved residents in the affected areas, legal practitioners, NEMA officers, and program officers from non- government organisations involved in subject cases. The study revealed that the legal framework is insufficient in enabling prompt, just and adequate compensation. Litigation in courts is the main method of attaining compensation, therefore the claimants must surmount procedural complexities concerning environmental toxic injury claims such as proving causation, access to justice in terms of cost, delay in litigation, and inadequate compensation due to the expanded scope of injuries. There is a lack of appreciation by legal practitioners that ETI claims fail to fit in traditional tort law which applies to trauma injuries easily seen and diagnosed. The lack of effective response measures to environmental incidents compromises the compensation process.Some of the notable weaknesses include non incorporation of public health tools like health impact assessment, a weak environment incident classification schemes which impede timely response measures; minimal stakeholder engagement and adoption of alternative justice systems in environmental disputes; lack of operative compensation funds to remediate the environment where a polluter is unable to do it and lack of collaborative engagement among institutions for effective management of environment incidents. Drawing lessons from the US, Japan, South Africa,Canada and Nigeria, the study proposes causation reforms, the establishment of administrative compensation systems to work alongside courts, provision for mandatory take up of insurance, operationalisation of environmental restoration funds to restore abandoned contaminated areas; common law adaptation by the courts to allow for new scope of injuries by admitting medical monitoring claims; review of law to allow channeling of liability for responsible parties; expanded limitation period within which environmental toxic injuries claims can be raised; standard of liability in the nature of absolute and strict liability; mandatory requirement of committing to insurance and other financial mechanisms for the provision of compensation where necessary.