The Environment and Land Court has ordered the Mombasa County government to pay Sh350 million in compensation to more than 200 residents of Mwakirunge over violations of their right to a clean and healthy environment arising from pollution from the area’s dumpsite.
Justice Lucas Naikuni said the residents, represented by environmental activist Ainea Ragen, had proved the alleged constitutional violations to the required standard.
The court found that the county government and the National Environment Management Authority (NEMA) failed to take adequate measures within their respective mandates to prevent and control pollution and environmental degradation arising from the continued operation of the Mwakirunge dumpsite.
“The Mwakirunge dumpsite and the effects of pollution have been there for a very long time. Secondly, the Mwakirunge dumpsite is still operational to date, thus the residents’ right to a clean and healthy environment is continuously being violated,” Justice Naikuni said.
The judge said the evidence established that the acts and omissions of the respondents had contributed to environmental harm and infringed the residents’ rights under Article 42 of the Constitution, which guarantees every person the right to a clean and healthy environment.
Children play near Mwakirunge dumpsite in Mombasa on October 4, 2021. Mombasa County officials say problems linked to the dumpsite require a multi-agency approach to solve.
Photo credit: File| Nation Media Group
The court also ordered the county government to immediately begin constructing a concrete perimeter wall around the dumpsite, at least six metres high, topped with razor wire and fitted with secure entrance and exit gates.
The site is to have controlled access and adequate security personnel, and the works must be completed within 12 months.
The county government was further directed to provide designs and commence development and installation of modern waste and solid-waste incinerators that meet international safety and health standards.
The court, however, declined to declare the 50-acre parcel on which the dumpsite sits as community land and therefore declined to compel the county government to relocate the facility.
Mwakirunge is Mombasa County’s main solid-waste disposal site and is located in Kisauni Sub-County, about 12 to 25 kilometres north of Mombasa’s central business district.
A boy rummages through the Mwakirunge dumpsite for ‘valuables’ to sell.
Photo credit: File | Nation
According to the petition, families began settling in Mwakirunge in the early 1900s, with more residents moving into the area in the 1920s and 1930s from parts of Malindi and Kilifi.
The petitioners said the dumpsite was initially established at Marimani by the defunct Municipal Council of Mombasa in 2002 before being moved to its current location in Colorado, Mwakirunge, in 2007.
They alleged that residents were already occupying the land when the dumpsite was relocated and that the municipal council had promised to provide amenities, including a school, health clinic, police station and perimeter wall.
The residents submitted that waste was dumped near their homes without adequate consultation or compensation, exposing residents to foul odours, smoke and other hazardous substances. Some families were subsequently forced to relocate.
According to the residents, the dumpsite occupied part of a graveyard and that about 50 acres had been excised from the larger Mwakirunge area without adequate public participation.
The petition cited years of complaints over pollution, hazardous and medical waste, fires, road accidents involving garbage trucks and the impact of the dumpsite on children and families.
The residents also presented evidence concerning the proximity of the dumpsite to Moi International Airport.
The court heard that in 2007, the Kenya Civil Aviation Authority and Kenya Airports Authority raised concerns that the site was within the approach path of the airport’s runway and could attract birds, creating an aviation safety risk.
The court further heard that studies commissioned by ActionAid Kenya and students from Kenyatta University in 2015 documented alleged social and environmental impacts associated with the dumpsite, including pollution, fires, insecurity, disruption of children’s education and various health problems. The studies recommended relocating the dumpsite.
The residents maintained that they had repeatedly raised their concerns with government agencies since 2007 without meaningful intervention.
Justice Naikuni found that the county government and NEMA had failed to take adequate and effective measures to prevent and address the environmental harm caused by the continued operation of the Mwakirunge dumpsite.
“I am therefore satisfied that the Petitioner has established, on a balance of probabilities, that the acts and omissions of the 1st (Mombasa County) and 4th Respondents (Nema) resulted in a violation of the Mwakirunge Community Residents’ right to a clean and healthy environment,” the judge said.
