Kenya has come a long way from Courts dismissing the late Wangari Maathai’s stance against the construction of the tallest skyscraper in the middle of Nairobi’s green space, Uhuru Park owing to her failure to prove locus standi. Article 70 of the Constitution of Kenya, 2010 eliminated the locus standi hurdle and enabled individuals to seek redress on environmental matters in the interest of public good.
Environmental Management is a persistent and common challenge in the world. A delicate balance exists between safeguarding not only the present generation’s needs but also the needs future generations,, thus protective measures must be adopted. In order to ensure the environment is restored and victims of pollution are compensated, laws and sanctions were introduced in Kenya’s national legislation. However, the question remains whether these measures adequately achieve adequate management of the environment.
Fundamental legal principles were developed over the years through domestic and international processes and embedded in Environmental Law in order to safeguard the sustainable use of natural resources. The use of land and natural resources must adhere to among others, the polluter pays principle.
The principle was promulgated in the Organization for Economic Cooperation and Development (OECD) as a response to the continued subsidization of pollution control costs of private firms by national public authorities. The principle was subsequently adopted as the 16th principle for Sustainable Development in the Rio Declaration on Environment and Development in 1992. Principle 16 provides that ‘national authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment’.
Previously, the community, rather than the polluter would bear the costs for pollution. However, presently, the polluter-pays principle requires the polluter to bear the costs for performing activities that potentially cause pollution. This is achieved by introducing pollution control measures, over and above their private costs of production. These measures include: construction and operation of anti-pollution installations; expenditure on anti-pollution equipment and new processes; taxes and; charges.
By virtue of Article 2(5) and (6) of the Constitution of Kenya which recognizes the general rules of international law and any treaty or convention ratified as Kenyan law, these principles are integrated within the Kenyan legal framework. The Environmental Management and Coordination Act (EMCA) (2015) defines polluter pays principle as ‘the cost of cleaning up any element of the environment damaged by pollution, compensating victims of pollution, cost of beneficial uses lost as a result of an act of pollution and other costs that are connected with or incidental to the foregoing, is to be paid or borne by the person convicted of pollution’.
An individual seeking redress for a violation of environmental rights may seek redress from the High Court under Section 3(5) of the EMCA. The High Court is required to consider the polluter pays principle as one of the guiding principles when enforcing the right to a clean and healthy environment. The EMCA provides 13 regulations that define various environmental management standards as well as accompanying offenses for non-compliance, including the offences and prescribed penalties for non-adherence of set standards. The Regulations penalties range from KShs.350,000.00 to KShs.500,000.00. The financial penalties fail to act as a sufficient deterrence for firms or individuals to refrain from polluting as it is considered a minimal amount to cost to pay for pollution.
Part IX of the EMCA stipulates that an environmental restoration order may be issued by NEMA in order to require the potential polluter or polluter to restore the environment as close as possible to its original state prior to the violation, to prevent environmental damage, award compensation to victims or levy a charge for abatement of costs. Under section 146 of the Act, the Court is empowered to ‘order that the substance, motor vehicle, equipment and appliance or other thing by means whereof the offence concerned was committed or which was used in the commission of the offence be forfeited to the State and be disposed of as the court may direct’. Although the restoration order would act as a sufficient ‘sting’ to potential polluters, its weak enforceability affects its application due to several factors including lack of awareness, weak enforcement capacity, long court processes, as well as accountability deficits.
Further, section 25(1) of the Act establishes the National Environment Restoration Fund which consists of fees or deposit bonds, donations or levies from industries and other projects proponents. This fund provides further protection and mitigation of environmental damage in cases where the polluter is unidentifiable or where NEMA intervention if required.
In Michael Kibui & 2 others (suing on their own behalf as well as on behalf of the inhabitants of Mwamba Village of Uasin Gishu County) v Impressa Construzioni Giuseppe Maltauro SPA & 2 others  eKLR the Court held the 1strespondent liable as the polluter and ordered it to pay KShs. 30,000 to each and every petitioner for breach of their right to a clean and healthy environment. In the case, 1st respondent extracted some construction materials such as rocks from Mwamba Quarry using methods such as blasting and drilling which denied the petitioners and the entire Mwamba Community their constitutional right to a clean and healthy environment.
In Jane Wagathuitu Githinji & 2 others v Sojanmi Springfields Limited & 2 others  eKLR the Court similarly applied the polluter-pays principle. In the case, the plaintiffs owned various parcels of farm land used for and the 1stdefendant operated a flower farm which had two dams, one of which broke its banks and its waters raged downhill resulting in environmental damage to the farm land below. The plaintiffs sought for among other the costs of rehabilitation and reinstatement of the plaintiffs’ land. The Court held that that the 1st Defendant was liable and the plaintiffs were thus entitled to have their land rehabilitated at the cost of the 1st defendant following the polluter pays principle and also the principle in Rylands vs Fletcher. In the alternative, if rehabilitation was not possible, the plaintiffs were to be compensated the value of their affected parcels of land. However, the Court failed to issue a disturbance allowance for inconvenience caused to the petitioners due to the contamination.
In Benson Ambuti Adega & 2 others v Kibos Sugar and Allied Industries Limited & 4 others; Kenya Union of Sugar Plantation and Allied Workers(Interested Party)  eKLRthe Court weighed the effects between effect on the owners, employees and agencies against public interest. The court held that the 1st to 3rd Respondents released raw effluent beyond the accepted quantities and without putting in place sufficient mitigating measures thereby affecting the environment negatively. The Court granted the prayer sought by the Petitioners for an order of an environmental restoration against the 1st – 3rd Respondents and in default the Petitioner be at liberty to appoint an auctioneer to demolish the structures and restore the environment and recover the cost from the 1st – 3rd Respondents. The Petitioners sought for damages and submitted an award of Kshs. 100,000,000/=, however the Court considered an award of damages to the Petitioners as individuals not appropriate in the circumstances.
The polluter-pays principle has fallen short of ensuring environmental management as the existing legislation requires the realization of more robust measures. Firstly, the penalties issued for individuals and corporate bodies should be significantly different. The differentiation of penalties would ensure that companies feel the ‘sting’ rather than perceiving the sanction as no more than a mere slap on the wrist. The cost of cleaning up the environment and compensation to victims may act as a deterrent for natural persons, however larger companies would not. In addition, penalties do not match the magnitude of the environmental impact of the pollution. Thus, a proper assessment should be carried out in order to weigh the specific penalty to extent of the pollution on the environment.
The writer is an Advocate of the High Court of Kenya and is enthusiastic about Environmental policy and regulation.