The environmental agency has been directed by the court to come up with a plan on how it will pay Sh2 billion to the victims of lead poisoning in Owino Uhuru, Mombasa.
In an order issued on Monday, the Environment and Land Court in Mombasa ordered the National Environment Management Authority (Nema) director general to file the comprehensive plan with seven days
The court orders the NEMA director general to personally file the affidavit detailing a clear, verifiable, and legally binding commitment and plan on how the decree holder's fruits of judgement will be realised.
Justice Belinda Akello also wants the Nema director general to detail administrative or budgetary steps taken by the agency to satisfy this decree since judgement was entered and the last orders dated June 11, this year, directed the exact structural impediments preventing immediate payment.
“Consequently, the burden is hereby shifted directly onto the executive leadership of the agency. The Director General of Nema, as the accounting officer, is hereby compelled and directed to personally file and serve a comprehensive affidavit within seven days from the date of this order,” Justice Akello said.
The victims were awarded Sh1.3 billion and another Sh700 million by the Supreme Court on December 6, 2024, for cleaning the environment polluted by a battery recycling plant in the slum village.
Others sued are the Attorney General, the Environment and Natural Resources Cabinet Secretary and the Health Cabinet Secretary.
Also sued is the Export Processing Zones Authority (EPZA), which was held accountable for regulatory lapses regarding the lead-acid smelting plant.
The defunct lead-acid smelting plant Metal Refinery (EPZ) Ltd was found directly responsible for the toxic emissions and pollution, while Penguin Paper and Book Limited was listed as a respondent in the case regarding the property and vicinity of the hazardous operations.
Kelvin Musyoka and nine others have moved to court to enforce the orders for Nema and other parties to release the money.
On technical compliance and service flaws, the court noted with concern that the procedural framework of order 23 has been treated casually by the parties, saying that a strict audit of the record revealed significant flaws in the service pattern.
“Specifically, the extracted order nisi was not served in strict compliance with the statutory timelines, resulting in an asymmetric window for response between the garnishee and the judgement debtor.
According to the judge, garnishee proceedings carry severe, near-irreversible financial consequences; therefore, absolute technical perfection in service and form is a mandatory prerequisite before this court can invoke its power to make the order absolute.
The judge noted that while the judgement debtor is a state agency, settled jurisprudence dictates that it possesses an independent corporate personality and is not insulated from execution.
However, she said that public interest demands that the court understand the administrative or budgetary impediments involved before paralysing public funds.
The court said that in tandem with the constitutional dictate under Article 159 to promote alternative channels of dispute resolution, this court hereby creates a window for consensus and invites all parties to consider negotiation and settlement out of court.
The court wants Nema to have a consent note detailing a realistic payment schedule, which, if filed, should be adopted as an order of the court.
“Let it be known to the 4th respondent and its leadership that this deferment is not an acquittal, nor is it an indulgence of bureaucratic lethargy. It is transitional accommodation. This serves as the absolute final warning,” Justice Akello warned.
"Should the director general fail to file the mandated affidavit, or should the parties fail to present a mutually agreed payment structure on the next date, the application to make the garnishee order nisi absolute shall be granted automatically on the return date without further hearing, and the funds held by the garnishee bank shall be attached and released to the applicant forthwith,” she stated.
The judge said parties were at liberty to file a consent note on a payment structure at any time before the next date.
The case was adjourned to October 12, 2026, for mention to confirm compliance and/or for final disposition.
