Judge gives NEMA 7 days to explain Sh2bn Owino Uhuru compensation delay

The High Court has given the National Environment Management Authority (NEMA) Director General seven days to explain why victims of the Owino Uhuru lead poisoning tragedy in Mombasa have not received the nearly Sh2 billion compensation awarded by the courts.

Justice Bellinda Akoth Akello ordered the Director General, as NEMA's accounting officer, to file a comprehensive affidavit detailing the steps taken to settle the decree, the obstacles preventing payment, and a legally binding plan showing how the victims will finally receive their compensation.

The judge warned that the court would not tolerate further delays.

"This serves as the absolute final warning. Should the Director General fail to file the mandated Affidavit, or should the parties fail to present a mutually agreed payment structure on the next date, the application to make the Garnishee Order Nisi absolute shall be granted automatically... and the funds held by the Garnishee bank shall be attached and released to the Applicant forthwith," she ordered.

The application stems from the Supreme Court's decision upholding a nearly Sh2 billion compensation award for residents of  Owino Uhuru who suffered years of lead poisoning linked to the operations of Metal Refinery (EPZ) Limited, a lead-acid battery recycling plant.

The award includes Sh1.3 billion for about 450 affected households to cover loss of life, personal injury, medical expenses and lost livelihoods, while Sh700 million was earmarked for environmental restoration through the Coastal Jumbo Green Environmental Association.

Justice Akello criticized all parties for what she described as a casual and careless approach to the proceedings.

"This court is constrained to express its displeasure at the utter lack of seriousness, cavalier attitude, and procedural sloppiness exhibited by almost all parties to these proceedings."

She also faulted procedural shortcomings in the garnishee proceedings, stressing that applications seeking to attach funds must strictly comply with legal requirements because of their significant financial consequences.

"Garnishee proceedings carry severe, near-irreversible financial consequences; therefore, absolute technical perfection in service and form is a mandatory prerequisite before this Court can invoke its power to make the order absolute," the judge said.

While acknowledging that NEMA is a public agency, the judge emphasized that it is not shielded from the enforcement of court judgments.

"While the Judgment Debtor is a state agency, settled jurisprudence dictates that it possesses an independent corporate personality and is not insulated from execution."

The court directed the Director General to explain the administrative and budgetary measures taken since the judgment was delivered, identify the specific barriers preventing payment, and provide a clear, verifiable, and legally binding commitment on how the compensation will be settled.

Justice Akello also encouraged the parties to negotiate an out-of-court settlement and file a consent on a realistic payment schedule, which the court said it would adopt as an order if agreed.

The case will be mentioned on October 12, 2026, when the court will determine whether NEMA has complied with its directives or whether the garnishee order should automatically take effect.

The compensation stems from a landmark Supreme Court ruling that found Metal Refinery (EPZ) Limited's operations contaminated the air, soil and water in Owino Uhuru, exposing hundreds of residents to toxic lead over several years and contributing to numerous illnesses and more than 20 deaths.

The apex court held that NEMA bore significant responsibility for failing to effectively regulate the factory despite repeated opportunities to prevent the pollution.

"There is no doubt that NEMA's actions and inactions provided the causal link between Metal Refinery's negligence and the injury occasioned to the appellants," the Supreme Court ruled.

The court also reaffirmed the polluter-pays principle, holding that those responsible for environmental degradation must compensate victims and restore the damaged environment.