KenGen ordered to pay Garissa residents Sh10M as compensation for land destroyed by oil spillage

The Environment and Land Court in Garissa has ordered the Kenya Electricity Generation Company (KenGen) to pay Sh10 million to owners of 110 acres of land partly destroyed by oil spillage from the firm's station near Tana River.

The order was issued by Justice John Mutungi after he found the company's negligence led to the spillage of waste fuel residuals into farms neighbouring the company's station.

Ahmed Musa Ahmed and Fatuma Kadid had sued on their behalf and that of seven others affected by the spillage demanding a Sh200 million compensation for the damage that has made parts of the land unproductive.

The case was filed in court in 2005 but Justice Mutungi said the residents did not show evidence to satisfy the court that they were justified for the payment.

The judge said it is not lost to the court that the plaintiffs were not able to demonstrate to the what income they were generating or have generated at any one time from their farming activities on the farm.

Justice Mutungi rejected the plaintiffs' (Ahmed and Fatuma, and seven others') claim for special damages for want of proof and substantiation.

"The plaintiffs also indicated their farm was approximately 110 acres. There was no clear evidence of the proportion of this land that was affected by the oil spillage. It was only parts of the plaintiffs' land that was not being put to full utilisation owing to the oil spillage and not the whole farm," he stated.

"Taking consideration of all the factors, I will make an award of Sh10,000,000 which I consider would be reasonable compensation to the plaintiffs for the damages they have suffered over time."

KenGen will also pay the plaintiffs the cost of the case - for all the amounts of money they spend on legal and other services for the case.

The judge also ordered the electricity generator to take action to stop any further waste fuel spillage on farms and into the river any time even during the rainy season.

Mutungi said in that regard (KenGen) should be required within a specified period to undertake mitigation and restorative measures that will stop any further spillage of used oil beyond their premises by putting in place an effective waste fuel disposal system that ensures no oil spillage would be washed away to the neighbouring lands or into the Tana River.

He said there can be no doubt that oil spillage and or discharge of waste fuel oil (sludge) into the environment has adverse effects on the environment and the ecosystem and would be an impediment to sustainable development.

"The (KenGen) under the provisions of Article 69 (2) of the Constitution has an obligation to ensure the environment is protected and conserved and therefore ought not to engage in any activities that could pose a threat to the environment. Spillage of waste fuel/oil into Tana River has the potential of polluting the river which could expose the users to potential health risks," he ruled.

"The (KenGen) under the supervision of the County Director of Environment Garissa is ordered to within a period of six (6) months from the date of this Judgment put in place such mitigation and restorative measures including a waste fuel disposal system as will stop any oil spillage and or waste fuel oil from being washed onto the neighbouring farms or into the Tana River including during the rainy season."

Justice Mutungi ordered the Garissa County Director of Environment to file a report in Court on or before March 31, 2025, to show the status of the implementation of the orders and directed that the same orders be served to the National Environmental Management Authority (NEMA).