As more Kenyans find easier access to legal resources, it becomes apparent that there are more options available to people in Kenya when pursuing justice.
For example, you can now sue for pollution instead of tolerating a violation of your right to a clean environment.
Environmental pollution is a serious offense that has numerous impacts on the physical, health, well-being, and even finances as investments in environmentally unsafe or noisy environments statistically fetch lower prices.
As a developing country, Kenya suffered from unregulated environmental pollution until the incorporation of the Environmental Management and Coordination Act No. 8 of 1999 (EMCA), which sought to enforce ecological conservation.
Since then, the body NEMA (National Environmental Management Authority) has taken strict measures to ensure a safe and habitable environment.
Today, you can effortlessly sue environmental polluters to demand they stop their actions or seek compensation for loss of business and other damages.
If you’re considering taking legal action against an entity for environmental pollution in Kenya, this article covers what happens after you initiate the suit and what you should expect.
If you’re yet to take legal action, consider contacting our law firm, and our environmental law attorneys will help you bring an end to the nuisance.
Which Courts Handle Environmental Pollution Cases In Kenya?
The justice system in Kenya comprises different courts that handle cases on various fields of public interest and sections of the constitution, for example, land courts, family courts, criminal courts, and environment courts.
Having a division in what kind of matters different courts handle allows for easier and more efficient case resolution while giving legal practitioners the freedom to specialize in fields of their choice.
When you take legal action against individuals or entities for causing environmental pollution, the Environment and Land Court will preside over your case.
If the defendant (accused party) in the case needs to appeal the decision of the Environment and Land court, then their case will be overseen by the National Environment Tribunal. In addition, the NET is responsible for hearing appeals against decisions made by the National Environment Management Authority (NEMA) and the County Environment Committees (CECs).
What To Expect After You Sue For Pollution In Kenya?
The procedure for pollution lawsuits is similar to many other kinds of cases, as we will first write a demand letter to the polluting party. The demand letter warns them of a potential suit and allows them to settle out of court by meeting the terms in the letter, which can include compensation or a cease of activities.
Upon reception of the demand letter, the served party has 14 days to instruct their attorney to get back to you through our firm. Then, if they’re willing to settle or have a negotiation, you can resolve the case through mediation.
If mediation doesn’t work out, our lawyers will prepare legal documents, submit them to the court, and serve the defendants (accused party) to initiate the suit officially.
The documents comprise physical copies of the terms of the suit and witness statements alongside an official stamp or seal from the respective law firms.
After the hearing, the ELC (Environment and Land Court) gives a ruling after which, if found guilty of environmental pollution, the defendant has 30 days to appeal the decision.
Outcomes Of Environmental Pollution Lawsuits In Kenya
As long as you’re in Kenya, the law is on your side, as the government has to provide you with a clean environment per Article 42 of the Constitution of Kenya, 2010.
However, there are several outcomes to expect out of your lawsuit. These rulings depend based on the case, the evidence you present, and a justification for legal action.
Below are some outcomes to expect out of an Environmental Pollution Lawsuit. Remember that these are not exclusive; you can have a ruling that grants you more than one of the wishes.
1. Injunctions
Court-ordered injunctions are the most common outcomes as they’re usually an essential first step in stopping the polluter’s actions and preventing further environmental and human health harm.
An injunction is a court order that prohibits the responsible parties from continuing the activities that cause pollution.
The Environment and Land Court often issue injunctions before a case’s completion if they determine the actions are destructive.
2. Monetary Compensation
Another expected outcome of pollution lawsuits is monetary compensation for economic and noneconomic damages.
In a successful suit, the court may order the responsible parties to compensate the plaintiffs for the harm and losses caused.
The amount isn’t set in stone as it depends on the extent of damage, the severity of the pollution, and how it affected you, for example, if you lost clients at your business due to a noisy neighbor or any related medical expenses. The law also allows you to seek compensation for the money you spend on legal fees.
An example of a landmark pollution case in Kenya is the 2016 class action lawsuit by 3,000 residents of Owino Uhuru, an informal settlement in Mombasa, versus Kenya Metal Refineries EPZ Limited, a lead smelting plant.
The court found the factory guilty of environmental pollution that caused lead poisoning for the nearby residents and their children.
In 2020, the business was ordered to pay 1.3 billion Kenya Shillings (approximately $12 million at the time) in compensation and clean up the environment.
3. Compliance
The environment court and NEMA may also order the parties involved to comply with environmental regulations and standards.
Before undertaking projects likely to cause environmental disturbances, companies and bodies are required by law to acquire Environmental Impact Assessment licenses to ensure that they take necessary steps to conserve the environment and clean up after their actions.
Some of these companies include construction projects, mining, and large-scale agriculture operations.
4. Criminal Prosecution
Some acts of pollution cause severe impacts on the ecosystem to warrant criminal prosecution. The result of the trial can include fines, imprisonment, and other criminal penalties for those responsible.
5. No Case
It’s essential to recognize that not all cases result in a favorable outcome or even a hearing, for that matter.
If the accused operates within the law and you have insufficient reason to sue or the court determines malice, it can dismiss the case. Additionally, you can get counter-sued.
For this reason, it’s essential to consult with environmental law experts like the ones at our firm and gather sufficient evidence before taking legal action.
The evidence can be video recordings or witnesses willing to get on the stand and testify or give formal statements to support the lawsuit.
Frequently Asked Questions
Can I sue for pollution if I’m not directly affected?
Yes, you can sue for pollution in Kenya even if you’re not directly affected. For example, if a factory’s pollution is affecting your community’s air or water quality, you have a case.
Do I need a lawyer to sue for pollution?
Yes, you need a lawyer to file lawsuits in Kenya, as you need to write demand letters and prepare legal documents.
Can individuals sue for pollution in Kenya or only companies?
Anyone can sue for pollution in Kenya as the constitution mandates everyone to have access to a clean environment.
Can a pollution lawsuit be settled out of court in Kenya?
Yes, mediation and out-of-court settlement is an effective way of handling pollution disputes as its faster and guarantees favorable outcomes for the involved parties.
Overview
Suing for environmental pollution is relatively straightforward and effective at recovering money lost and maintaining a healthy environment for you and your family.
There are a few outcomes to expect depending on the extent of the pollution and the evidence you present.
It’s essential to seek the advice of experienced environmental lawyers like ours to guide you through the legal process and give you the best chance of success and a favorable outcome.
It helps to remember that environmental pollution is a severe issue affecting not only individuals but the entire community and ecosystem; therefore, taking action against pollution benefits you, contributes to a better environment for everyone, and promotes sustainable development.
Contact us today at +254 799 180 755 or email [email protected] to find out what you can do about the pollution where you are.
