Compensation in environmental liability cases in Kenya

Abstract

COMPENSATION IN ENVIRONMENTAL LIABILITY CASES IN KENYA For the last three years, Kenya has seen an increase in large scale infrastructural projects in the country. Currently, there are about 365 wind turbines under construction in Lake Turkana, the Standard Gauge Railway (SGR) is half-way complete and a record of 87 projects in real estates have been initiated by both foreign direct investors and local investors. The prestigious Nairobi-Thika Highway Improvement Project (NTHIP) is complete among other projects. Such large scale infrastructural projects have adverse environmental impact hence the ever insistence of carrying out environmental impact assessment. This is a preserve of the National Environmental Management Authority (NEMA). Due to these and many other human activities in Kenya and around the globe, environmental protection and justice has been a great concern for the global community let alone Kenya. Kenya boasts of being in possession of a fairly comprehensive legislation including statutes and subsidiary legislations, creating legal frameworks designed to protecting various ecosystems within the country. The international community has also made great strides in protection of almost every aspect of the global environment. This ranges from protection of the sea, to the ozone area, to the biodiversity among other parts. 1 Pat Brown, quoted in David Ogilvy on Advertising, 1985 < http://www.quotegarden.com/environment.html > accessed on 10th October 2018 xi It is imperative to note that significant adverse effects on the environment do not respect national borders.2 This has led to an increase in the need to affirming the protection of environmental rights and environmental justice at the global, regional and national level. Principles of environmental law, at the global level, have mostly been developed through customary law and later have led to their recognition by different treaties and statutes at the national level. Bills of rights and human rights conventions have also increasingly recognized the environment as a human rights aspect. At the national level, Article 42 of Constitution has provided for the right to clean and healthy environment. This has been coupled by Article 69 which provides for the principles to guide the state when dealing with issues of the environment, and Article 70 which provides for remedies where the right to clean and decent environment is infringed. Ambitiously, the Constitution proceeded to create the Environment and Land Court that would be specialized to adjudicate on environmental issues. It is the desire of every citizenry to have a legal framework that is beneficial to them effectively implemented. The existence of a legislative framework is the first step to achieving the protection of the environment. The implementation of the legal framework is the second most vital step. Enforcement of environmental rights remains a challenge marred with financial implications of litigation and many uncertainties especially on the principles to be used in awarding of remedies and damages.3 Further, the protection of the environment would be achieved where people are empowered and where public participation is practical.4 2 InforMea ‘Access to Information on Multilatera; Environmental Agreements’ in < https://www.informea.org/en/terms/transboundary-effect > accessed on 16th October 2018 3 Francesco Francioni ‘Liability For Damage to the Common Environment: The Case of Antarctica’ [1994] [Vol 4] < https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1467-9388.1994.tb00180.x > accessed on 10th October 2018 4 ibid xii The role of the judiciary in the protection of the environment and issues of environmental governance has been called into question in the last decade. Civil disputes are bound to increase within our courts with increase of information on environmental issues and environmental justice. The path of the law, on the role of the courts in adjudicating civil disputes is not yet well-trodden.5 While no judicial officer is allowed to decline to resolve a dispute on the ground that the dispute falling within him/ her is too difficult, issues of how much to award compensation in case of environmental degradation is still unanswered within our legal framework. There may be a tendency to borrow heavily from the common law principles of damages, but are these principles effective in environmental law? There has been some reluctance by the legislature at the national Level and countries at the global level to provide for principles for determining compensation once polluter has been required to pay is alarming. This study will therefore investigate the possible principles and considerations that a court in Kenya would apply in the process of determining the amount of compensation to be awarded to the complainant.