Facts
In May 2015, there was an oil pipeline leak in Thange, Makueni County. This pipeline belonged to the Kenya Pipeline Company (KPC). The leak allowed oil to seep into the soil and underground water sources near the Thange River, which many families in the area depended on for drinking, irrigation, farming, and livestock.
The residents noticed an oily smell in their water and raised the alarm. It took several months before KPC and government bodies such as NEMA (National Environment Management Authority) and WRA (Water Resources Authority) took substantial action.
Thousands of families were affected. They lost access to clean water, their livestock died or became sick, crops were destroyed, and some residents developed serious illnesses, which doctors later linked to the chemical exposure from the oil.
A multi-agency task force was set up. Several scientific studies showed the presence of harmful substances like benzene and toluene in the soil and water. However, even after partial cleanup, oil and grease remained in some areas as late as 2023.
While KPC did compensate a few residents for crop loss and livestock through discharge vouchers, many claimed they were misled, pressured, or never fully informed before signing. The residents filed a petition arguing that their constitutional rights to a clean environment, health, water, dignity, and livelihood had been violated.
Issues
The main questions before the court were:
- Did KPC violate the residents’ right to a clean and healthy environment and other constitutional rights?
- Was the compensation paid through discharge vouchers legal and fair?
- Did NEMA fail in its duty to supervise and ensure proper environmental cleanup?
- Are the residents entitled to further compensation and remedies?
Ruling
The Environment and Land Court at Makueni found that KPC was responsible for the oil spill and its harmful effects on the community. The court said KPC had failed in its duty of care and breached the environmental rights of the residents.
The court declared that:
- The petitioners’ rights under Articles 42 (right to a clean and healthy environment), 43 (right to health, water, and food), and 47 (fair administrative action) of the Constitution had been violated.
- The discharge vouchers were not valid since many residents signed them under pressure, confusion, or without proper information or legal advice.
- The National Environment Management Authority (NEMA) also failed in its supervisory role and should have done more to ensure proper cleanup and protect the affected community.
The court ordered that:
- KPC should pay fair and full compensation to all affected residents.
- The discharge vouchers signed earlier were declared invalid.
- The affected land, river, and water sources must be fully restored.
- A reliable clean water supply must be provided.
- Medical clinics must be set up to deal with illnesses linked to hydrocarbon exposure.
Application
The court applied the strict liability principle in environmental cases. This means that even if a company did not intend to cause harm, it is still responsible if its activities result in pollution or environmental harm.
This principle is rooted in the famous English case of Rylands v Fletcher (1868), where a landowner was held liable when water from his reservoir flooded a neighbour’s mine. The idea is that whoever brings a potentially dangerous thing onto their land must make sure it does not escape and harm others.
In the Kenyan context, the court referred to the polluter pays principle, meaning those who cause pollution must bear the costs of managing it. This is supported by Article 69 of the Kenyan Constitution and sections of the Environmental Management and Coordination Act (EMCA).
The court also made reference to Kenya Bus Services Ltd v Attorney General & 2 Others [2005] eKLR, where it was held that constitutional rights must be protected even in cases that arise from private actors’ conduct if there’s State failure to regulate.
Another comparable case is Waweru v Republic [2006] eKLR, where the High Court confirmed that the right to a clean and healthy environment is enforceable under the Constitution and not merely aspirational.
In Peter K. Waweru v Republic [2006] eKLR, the court clearly stated that a clean and healthy environment is not a luxury but a basic necessity. In that case, unregulated pollution by a developer was found to have breached residents’ environmental rights.
This judgment in the Thange case has set a high bar for corporate and government accountability in environmental matters. It shows that constitutional rights related to the environment, health, and dignity are not negotiable, and both public and private actors must act responsibly.
Conclusion
The court found that Kenya Pipeline Company was responsible for one of the most significant environmental damages in recent years and failed to handle the aftermath properly. It also found that NEMA, as a state regulator, did not do enough to protect the residents’ rights.
The judgment is a major win for environmental justice in Kenya. It confirms that victims of environmental harm have a constitutional right to redress, even when facing powerful institutions. The ruling also sends a strong message that no company, regardless of its size, is above the law when it comes to safeguarding the environment and human health. See more HERE
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