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Metal Refinery (EPZ) lawsuit (re lead pollution in Kenya)

smelter flickr

In 2016, an NGO instituted a class action lawsuit on behalf of the Owino Uhuru community in Kenya, alleging lead contamination and poisoning by the company Metal Refinery which recycled used lead-acid batteries. The case is ongoing. 

 

In 2016, the Centre for Justice Governance and Environmental Action (CJGEA) instituted a class action lawsuit on behalf of the Owino Uhuru community in a Kenyan Environment and Land Court in relation to lead contamination and poisoning.

In 2007, the Metal Refinery (EPZ) opened a smelting plant, which recycled used lead-acid batteries in Owino Uhuru. Complaints emerged from the local community following the opening of the plant, alleging that the company was poisoning the environment as a result of poor waste management. Claimants allege that an increasing number of people had been affected by diverse health and environmental impacts, including deaths from lead poisoning and respiratory diseases, since the opening of the plant. Soil tests showed that lead levels increased almost tenfold between 2008 and 2009, when the plant became operational. The smelter ceased operations in 2014, following community pressure and campaigning by the CJGEA.

The class action seeks 1.6bn Kenyan shillings (around US$ 15m) in compensation, as well as clean-up of contaminated land. The lawsuit challenges the responsibility of eight different state and non-state actors in relation to the protection of the right to a clean and healthy environment, among others.

Six of the eight respondents in the lawsuit, which include the attorney general, governmental bodies, and environmental and health regulatory authorities, were notified of the claim in 2016. However, Metal Refinery EPZ LTD (the smelter plant) and Penguin Paper and Book Company (the company which housed the smelter) evaded the claimants’ notices for a year. On 26 January 2017, the claimants published the notice of claim against the two companies in a newspaper advertisement which was released on 2 February 2017. The Environment and Land Court ordered both parties’ lawyers to come forward in April 2018, and opened court proceedings on 15 and 16 May 2018. The case is ongoing, and hearings will continue on 28 and 29 November 2018.

After the lawsuit was made public, workers and environmental activists of the CJGEA allegedly started receiving threats, being harassed, and being trailed. In 2014, 2017 and 2018, the UN Special Rapporteur on Human Rights and the Environment called for the Kenyan government to protect four environmental human rights defenders and members of the CJGEA who had been assaulted and subjected to death threats. On 6 March 2017, they met with the Kenyan Director of Public Prosecutions, and on 6 April 2017, the police started interviewing the CJGEA members. Phyllis Omido, who shed light on the health consequences of the factory’s activities and founded the CJGEA, still faced death threats in 2018 as a result of bringing the case.

In July 2020, the Honorable Justice Anne Omollo delivered the judgment for the class action suit. The Court held that the Owinouhuru commuity shall receive Kshs. 1.3 billion (12,101,876.80 USD) in damages and that the government and Refinery Metals have four months to clean up the environmental damage.  

News articles

- "Health ministry and NEMA trade blame over Mombasa slum lead poisoning", Standard Digital, 6 Dec 2018
- "Lead victims from Owino Uhuru slum still seeking justice", The Star, 10 Aug 2018
"Protect witnesses in Owino Uhuru lead poisoning case, UN tells government",The Star, 2 Jul 2018
- "10 witnesses on Owino Uhuru lead poisoning case put on protection", The Star, 26 Jun 2018
“The woman risking her life to save a village from lead poisoning”, CNN, 24 Apr 2018 
“Kenya lead victims denied their day in Mombasa court”, DW, 19 Mar 2018 
"Kenya's 'Erin Brockovich' defies harassment to bring anti-pollution case to courts", The Guardian, 15 Feb 2018 
"Police probes alleged harassment of CJGEA workers for defending environment", The Star, 13 Apr 2017 
"United Nations demands protection for Mombasa activists", Standard Digital, 27 Feb 2017 

NGO/IGO Statements

 

-“On the frontlines of the fight for a healthy planet”,UN Environment, 10 Oct2017 
- Metal Refinery (EPZ) limited, Centre for Justice Governance and Environmental Action, 14 Mar 2017
"Statement on Human Rights Violations by Metal Refineries (EPZ) Limited and Affiliate Entities on Communities Living in Uhuru Owino", Kenya Human Rights Commission, 29 Apr 2015

Legal Documents

Petition by Kelvin Musyoka and 9 others against The Honourable Attorney General and 7 others, 20 Feb 2016

-Judgment in the Environment and Land Court at Mombasa in the Owinouhuru community vs. Metal Refinery, 16 Jul 2020

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Article
22 July 2020

Judgment in the Environment and Land Court at Mombasa in the Owinouhuru community vs. Metal Refinery

Author: Republic of Kenya in the Environment and Land Court

Download the full document here

Article
17 July 2020

Center for Justice Governance and Environment Press Release for Owinouhuru Victory

Author: Center for Justice Governance and Environmental Action

Download the full document here

Article
17 July 2020

Kenya: Court finds Metal Refinery liable for lead poisoning, orders Sh 1.3 billion in payment to the affected community

Author: Brian Ocharo, Daily Nation

"State ordered to pay Sh1.3bn to Owino Uhuru lead poisoning victims" 16 Jul 2020

The Environment and Land Court has ordered the government and two private investors to pay Sh1.3 billion to residents of Owino Uhuru slums in Chagamwe, Mombasa County who were affected by lead poisoning which emanated from a factory within the area.

In a ruling on Thursday, Justice Ann Omollo also ordered State agencies responsible for the environment to clean up any remaining lead deposits.

The residents moved to court in 2016 seeking Sh1.6 billion as compensation for the deaths of their loved ones as well as ailments associated with lead poisoning...

In her ruling, Justice Omollo found the State agencies and the private investor who run the factory liable for poisoning the residents...

Following the ruling, the State is also now expected, within the next four months, to clean up the soil and water in the affected area and remove any wastes deposited within the settlement or pay a further Sh700 million in default.

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Article
6 December 2018

Health ministry and NEMA trade blame over Mombasa slum lead poisoning

Author: Joackim Bwana, Standard Digital (Kenya)

Two State entities have blamed each other for negligence that has allegedly led to the death of 20 people.  Officials from the Ministry of Health and those from the National Environment Management Authority (Nema) yesterday traded accusations in court over who was to blame for the failure to shut down a battery manufacturing factory.  The factory, Metal Refinery EPZ Ltd, has been accused of exposing residents to lead poisoning, leading to the deaths.  Over 3,000 people have sued Nema, Metal Refineries Limited and the Ministry of Health through the Center for Justice, Governance and Environmental Action...

Nema accused the ministry of disregarding its directive to close down the factory...John Ndung'u, a Ministry of Health official, told Lady Justice Ann Omollo that Nema never issued any directive to have the factory closed...

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Article
21 September 2018

Kenya: UN Human Rights Office supports poor community take legal action against lead poisoning by a smelter

Author: United Nations Human Rights Office

"Lead poisoning on Kenya's Coast: A Poor Community Fights Back"

...Phyllis is an environmental activist locked in a battle over toxic pollution that is pitting the impoverished community of Owino Uhuru against the country’s most powerful entities – government and big business. No one among the community’s 5000 residents doubts why the children died: The community believes that they were poisoned by lead from an adjacent smelter and battery recycling plant that operated with impunity for more than seven years — and without the mandatory Environmental Impact Assessment — until it was finally forced to shut down in 2014. The damage inflicted during those seven years is still visible. In this poor shantytown whose residents often live on a dollar a day, many children still haven’t been tested for lead poisoning; few of those who have are receiving medical treatment; and homes and water sources are still contaminated from the toxic dust that once floated overhead...

Phyllis had tried to raise the alarm but in vain: she had insufficient proof. So she tested sick children at her own expense. The results were predictable: all suffered from lead poisoning. She contacted environmental, business, economic and health authorities, again to no avail. Owino Uhuru was, after all, a marginal community, while the metal company – and its powerful owners and allies – was part of a massive economic effort to industrialize Kenya’s coast. Yet along Owino Uhuru’s dirt-packed streets, the stories continued to tumble forth...

Along with the residents of Owino Uhuru, she launched a class action suit against the two companies involved and the Kenyan government. “They should never have allowed this smelter to operate right where people live,” she said. “Going up against business entities and power groups can be exceedingly dangerous,” said Marcella Favretto, Senior Human Rights Adviser in Kenya...UN Human Rights heard of her fight and offered to help as part of its mandate to support implementation of the UN Guiding Principles on Business and Human Rights and protect civic space. In addition to supporting the litigation case, UN human rights have provided a bridge with the Kenya authorities to urge protection of CJEA and members of the Owino Uhuru community when they came under threat.

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Article
10 August 2018

Lead victims from Owino Uhuru slum still seeking justice

Author: Ernest Cornel, The Star (Kenya)

In another case of environmental poisoning, residents of Owino Uhuru slum in Jomvu, Mombasa, are in court seeking compensation following lead poisoning.  The 3,000 residents either worked or bordered the now- defunct smelting plant, Metal Refinery EPZ Ltd...The case, filed in 2015, has dragged on in court.  On July 24 and 25 this year, five witnesses took to the stand.  They were Wilfred Kamenchu, Jackson Wanyama, Steven Okello and Hamisi Diyo.  Expert witness Wandera Bideru also testified...Kamenchu told the court he stayed at the polluted slum for more than 16 years.  He cited chest pains, itchiness, skin rashes, anaemia, low intellectual weakening of bones and impotence as some of the effects the lead brought to the community.  Okello told the court he lost his son, Samuel Omondi, to lead poisoning...Wanyama worked in the plant as a casual labourer.  His wife and son died of lead poisoning...

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Article
2 July 2018

Protect witnesses in Owino Uhuru lead poisoning case, UN tells government

Author: The Star

The United Nations has asked the Kenyan Government to protect witnesses testifying in Owino Uhuru Lead case amid claims some have received death threats...The four have been subjected to threats following the first hearing against the plant on May 17. The experts said they are due to testify again - a situation that risks their lives. "Unknown people have visited their homes at night repeatedly banging on their doors," the lot said in a statement. They four said it is unacceptable no one has been arrested for repeatedly threatening, harassing, intimidating and assaulting the witnesses. UN has been consistent in agitating for their safety. In 2014, 2017 and last week asked the State to protect and promote the rights of the environmentalists. "The government should urgently launch a proper investigation and bring those who are responsible to justice," the experts said. Those claiming they are being hunted said they have recorded statements with police but "investigations appear slow and inadequate". "The defenders fear for their safety and life, and are seeking for help to be relocated," the UN statement added.

 

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Article
26 June 2018

10 witnesses on Owino Uhuru lead poisoning case put on protection

Author: Ernest Cornel, The Star (Kenya)

Ten witnesses in the lead poisoning lawsuit filed by CJGEA and Owino Uhuru community have been placed under protection.  Three of them have testified and seven will appear before the High Court in Mombasa on July 24-25.  They reported death threats from persons of interests and the United Nations urged the government to protect them.  Centre for Justice Governance and Environmental Action says police are not yielding much result in the investigation.  A meeting with Changamwe OCS two weeks bore no fruit as the threats persisted, CJGEA communication officer Habiba Fora said.  Asked whether police assured witnesses of their safety, Fora said, “Not really. They just say they are investigating.”  She said they are waiting for an update on the investigations after police promised to go into the community and do “ground work”.  CJGEA offices have been raided before and files relating to the case stolen, executive director Phyllis Omido said...The 10 witnesses have in the past been forced to flee outside the country...

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Article
24 April 2018

The woman risking her life to save a village from lead poisoning

Author: Deborah Bloom, CNN

For close to a decade, Omido has been visiting the Owino Uhuru village, monitoring the various illnesses, deaths, and miscarriages that have occurred since a nearby smelter contaminated the village's air and water with lead...Omido, 39, is one of Kenya's most outspoken environmental activists. She's been dubbed the "East African Erin Brockovich," and her work has led to the shuttering of 10 toxic waste smelters in Kenya in the past three years...Indeed, much of Omido's work has been at great risk -- to herself, her family, and her colleagues' families. She's been physically attacked multiple times and is constantly threatened. She says she's been arrested on five different occasions, but never convicted. Her colleagues' lives have also been threatened, their homes broken into or burned...She began work at the lead-acid battery recycling plant, Metal Refinery EPZ, as a community relations manager in 2009, the second year of the plant's operation. The smelter exported blocks of pure lead by taking used car batteries and extracting the lead from them using a special furnace. In violation of Kenyan environmental and human rights law, the factory's smelting process would emit fumes, dust, and effluent laden with lead particles, according to a 2015 report by the Ministry of Health.

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Article
19 March 2018

Kenya lead victims denied their day in Mombasa court

Author: Cristina Krippahl, DW

Residents of Owino Uhuru in Mombasa County filed the class action lawsuit against thegovernment and the Metal Refinery EPZ Ltd after they fell ill from lead poisoning. They are asking for the equivalent of €13 million ($16 million) in compensation for health problems and to clean up contaminated land...Now, two years after the lawsuit was launched, the plaintiffs were scheduled to give their testimony in court in Mombasa for the first time today. But the hearing did not take place because of a dispute between two lawyers representing the victims. Justice Anne Omollo ordered both counsels to come forward on April 27 for the hearing of their applications and rescheduled the opening of the court proceedings to the 15th and 16th of May this year...Two years after the class action suit was filed in 2015 under the leadership of activist and founder of the non-governmental organization Centre for Justice, Governance and Environmental, Phyllis Omido, the victims are still waiting for their day in court. They include Omido herself, whose son was poisoned by the lead-smelting factory. Her organization succeeded in forcing the shutdown of the plant, before pushing the courts to secure compensation for the victims and a clean-up of the community. Thousands of locals joined the suit.

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