The county government of Mombasa suffered a huge setback after a court ordered it to pay KES 350 million to approximately 200 residents of Mwakirunge in compensation for violation of their right to clean and healthy environment occasioned by pollution from a dumpsite.
The Environment and Land Court (ELC) noted that from the evidence presented, it was aware that Mwakirunge dumpsite and effects of pollution have been in existence for a very long time.
“The Mwakirunge dumpsite is still operational to date, thus the residents’ right to a clean and healthy environment is continuously being violated. Despite the ongoing daily pollution, the respondents have been unwilling to account for the public funds allocated for the management of the dumping site,” ruled Justice Titus Naikuni.
The ELC’s decision followed a petition filed by an environmental activist Ainea Ragen in his own capacity and on behalf of Mwakirunge community residents.
Justice Naikuni said that the National Environment and Management Authority (NEMA) decided to ‘look the other way ‘and allow the dumping of the waste to continue without any regard to issues raised by Mr Ragen, Mwakirunge community residents and stakeholders.
The ELC also noted that the county government, as the entity responsible for refuse removal, dumps and solid waste disposal within the county, was under a constitutional and statutory obligation to ensure that disposal of waste was undertaken in a manner that safeguarded the environment and health of residents.
“I find that both the first and fourth (county government and NEMA) respondents failed, within their respective mandates, to take adequate and effective measures to prevent and address the environmental harm arising from the continued operation of the Mwakirunge dumpsite,” ruled Justice Naikuni.
The judge said that he was satisfied petitioner had established, on a balance of probabilities, that the acts and omissions of the county government and NEMA resulted in a violation of the Mwakirunge community residents’ right to a clean and healthy environment guaranteed under the constitution.
Apart from the county government and its Chief Officer-Finance and Economic Planning, the petitioner sued Cabinet Secretary for Lands, NEMA, Kenya Airports Authority (KAA) and the Auditor General. The Ethics and Anti-Corruption Commission (EACC) and the Directorate of Criminal Investigations (DCI) were named as interested parties.
The ELC also ordered the county government to immediately commence construction of a concrete perimeter wall around the dumpsite of at least six metres high, razor wire surrounding it on top and a well secured strong main entrance and exit gates.
It ordered that the dumpsite would have strict access regulations and be manned for twenty-four hours by qualified, adequate security and that the construction works ought to be completed in 12 months.
Justice Naikuni also ordered the county government to immediately provide designs and to commence development and installation of ultra-modern and high technologically solid waste incinerators.
This, the court ordered, will be for burning of current and future dry and solid waste materials at the dumpsite for the county which ensures human safety and health standards.
The court also ordered NEMA to strictly perform its duties under the Environmental Management Coordination Act (EMCA) and the Environmental Management and Coordination Regulations of 2006 and to file in court every three months a report on the progress made on the solid and liquid waste disposal at Mwakiruge dumpsite.
Justice Naikuni further ruled that the continued operation of the dumpsite in the absence of the requisite licence constituted non-compliance with the environmental regulatory framework and exposed the surrounding environment, ecosystems and residents of Mwakirunge to environmental risks that the statutory assessment process was intended to identify and address.
The ELC also noted that the land where the dumpsite currently sits belongs to the county government as the entity that succeeded the Municipal Council of Mombasa.
“The first respondent’s (county government) title stands and has not been challenged in line with Section 26 of the Land Registration Act on whether the allocation and issuance of title was lawful,” ruled Justice Naikuni.
The finding, the judge ruled, does not dispose of the environmental rights asserted in the petition and that the fact that the petitioners do not hold proprietary rights over the land upon which the Mwakirunge dumpsite is situated does not disentitle them from the protection afforded by the constitution.
“The right to a clean and healthy environment guaranteed under Article 42 (of the constitution) is a human right directed at protecting persons from environmental harm and is not, by its nature, contingent upon ownership or occupation of the land on which the environmental harm occurs,” ruled the court.
According to the petition, the petitioners began settling in Mwakirunge in the early 1900s, with settlement gradually increasing through the 1920s and 1930s as families migrated from various parts of Malindi and Kilifi.
Mr Ragen told the court that in the 1930s, approximately 15 families were residing in Mwakirunge having migrated from Lango Mbaya in Malindi and Chonji in Kaloleni.
He further averred that the Mwakirunge dumpsite was initially established at Marimani by the defunct Municipal Council of Mombasa in the year 2002 and relocated to its current location at Colorado, Mwakirunge, in 2007.
On its part, the county government said that the portion of Mwakirunge where the dumpsite is situated was formerly government land under the National Government, managed through the Ministry of Lands, and having been unoccupied, was identified by the then Mombasa Municipal Council and set aside for use as a dumpsite.
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