An act of God or human laxity? Inside five-year Solai dam probe

An aerial photo of the aftermath of the Patel Dam tragedy at Solai in Subukua, Nakuru County on May 11, 2018. [Kipsang Joseph, Standard]

The evening of May 9, 2018, was just like any other. Most families in Solai had retreated to their homes.

The evening turned unusual with a loud bang. A roar of moving water released from a dam sliced a crater through a hill, washing away power poles and destroying buildings.

In minutes, the once-thriving agricultural villages of Nyakinyua, Nyandarua and the Energy centre were submerged. At least 48 people died in the tragedy.

Investigations were launched and a committee was formed as the government sought to establish the circumstances leading to the accident. While some believed the tragedy was an act of God, others took it as neglect on the part of owners and some government officials.

The committee tabled its report in the Senate on July 25, 2018, and said the lives should not, cannot, and shall not die in vain. They said the victims must be honoured.

"The Solai dam tragedy is not just an ordinary tragedy. The tragedy is a culmination of intricate and sophisticated criminal conspiracy between the owner(s) of Solai dam in cahoots with public officers, who in the proverbial, "hear no evil, see no evil and speak no evil," turned a blind eye to an unlicensed monstrous man-made earth dam sitting 1694 metres above sea level, made of porous material, with a 30-metre mud wall, holding 300,000m3 of water and no spillway. It was a disaster waiting to happen," read the committee's report.

The owner of Milmet dam according to them, knowingly and unlawfully constructed Milmet dam by blocking Watkins stream since 2004. The committee noted there was a general casual manner in which all the agencies dealt with this matter before and after the tragedy.

In its findings, it stated that the tragedy was a result of deliberate criminal acts and omissions on the part of the owner(s) and criminal neglect of duty, abdication of responsibility, conspiracy, and concealment by officers of NEMA, NCA, and WRA. The 48 people did not die accidentally or through an act of God.

"The tragedy was not an act of God. The owner(s) must be held liable for the tragedy under the law, and correspondingly pay for deliberately and knowingly violating the laws of Kenya," they stated.

They made several recommendations including prosecution of National Government officers including the County Commissioner Nakuru, DCC and Chief in Solai, for abuse of office and obstruction of justice.

The restoration of Solai they said be given priority after a comprehensive Environmental Audit by a reputable firm to assess the parameters of the restoration of Solar and assess the quantum of compensation payable to the families of the deceased, injured, and for loss of livelihoods.

They also recommended that the affected Solai residents be issued with an alternative land.

In July 2018, the DPP ordered the arrest and prosecution of Solai farm managers and top government officials. They faced a raft of charges including manslaughter, neglect of duty, and failure to prepare an environmental report.

In the case, Perry Manusukh, a director at Solai Farm, and eight others faced 48 counts of manslaughter and failing to prepare an environmental impact assessment report.

The others are Vinoj Jaya Kumar, Johnson Njuguna, Luka Kipyegen, Winnie Muthoni, Jacinta Were, Tomkin Odo Odhiambo, Willie Omondi and Lynette Cheruiyot.

In February 2020, a Naivasha court acquitted them. The acquittal followed 18 months of adjournments. Chief Magistrate Kennedy Bidali ruled there was a lack of "willingness" and support from the office of the DPP in prosecuting the case. The DPP said not even a single witness had been produced in court.

Two days after the court ruling, the then DPP Noordin Haji, lodged an appeal terming the acquittal unfair and an abuse of the rights of the victims.

On April 9, 2020, the High Court quashed the acquittal of nine. High Court Judge Richard Mwongo termed the acquittal void and ordered a fresh trial of the nine suspects.

Mwongo said the interests of the victims and their suffering had not been considered when acquitting the accused. He directed the court taking over to hasten the case. The Court of Appeal affirmed the decision to have the nine charged afresh after it dismissed their application.

Judges William Ouko (Supreme Court judge), Wanjiku Karanja, and Martha Koome now Chief Justice, dismissed an application by Perry Mansukh, Vinoj Jaya, Luka Kipyegon, and Johnson Kamau.

In April 2023, the court in Naivasha after hearing ruled the nine have a case to answer and put the nine on their defence. 36 witnesses had testified.

Last week, Manusukh gave his defence. He said government reports attributed the floods to deforestation and agricultural activities. According to expert reports, heavy rains that pounded the county in May 2018 and the illegal felling of trees around the dam caused the sudden flooding.

The area reportedly had recorded tremors days before the dam collapsed on May 9. In his defence, Manusukh told the court he was not the farm owner as accused by the State but a director and a shareholder.

Manusukh relied on government agency reports to tell the Naivasha Court that the country had experienced heavy rains which led to flooding.

"As per the report by the Rift Valley investigating committee, torrential rains over a period of time led to floods which swept away boulders, logs, and soil leading to the deaths," he said.

The court also heard that Solai Dam had undergone an audit and received legal permits from the Water Resource Authority. The authority, previously known as the Water Resources and Management Authority (WRMA), had conducted an inspection of the farm and granted its approval.

According to Winnie Muthoni, a water rights officer with WRA, the authority was not aware of any issues with the dam before the tragic incident occurred.

Muthoni told the court the dam owners had been issued a clearance certificate that was valid from 2012 until December 2018.

A geotechnical expert Mang'ong'o Bwocharo testified that the incident's cause was a natural phenomenon beyond human control.

During cross-examination by State Counsel Gichuhi Gikui, the geologist explained that the dam was situated on volcanic soils that were susceptible to erosion by heavy rains.

Mang'ong'o added that studies conducted on the dam indicated a significant mudslide, involving large boulders, soil, and runoff, crashing onto the dam.

"Field investigations and geological assessments conducted around the dam revealed that the failure was the result of a natural phenomenon beyond human control," he said.

The case is still pending in court.