The Kenya Electricity Generating Company Ltd (KenGen) has been ordered to pay Sh10 million to some farmers whose farmlands along the Tana River were damaged by an oil spill from its power plant during the rainy season.
The Environment and Land Court in Garissa also ordered KenGen, under the supervision of the Garissa County Director of Environment, to put in place mitigation and restorative measures within six months, including a waste fuel disposal system that will prevent oil spills from being washed onto nearby farms or the River Tana, including during the rainy season.
Justice John Mutungi, who ordered KenGen to pay the compensation with interest at court rates until full payment, ordered the County Director of Environment to submit a status report to the court on the implementation of the remedial measures on or before March 31, 2025.
The 10 plaintiffs (farmers) had filed the case in the High Court in Nairobi in 2005 before it was transferred to the Environment and Land Court.
The judge ruled that he was satisfied that there had been repeated oil spills from the KenGen power station during the rainy season and that the plaintiff, Likoley Farm, was one of those affected.
“On the basis of the evidence adduced, the court accepts as a proven fact that there were repeated oil spillages from KenGen storage tanks that were routinely washed away whenever there was water overflow during the rainy weather some of which found its way onto the farmer’s and neighbours’ farms,” ruled Justice Mutungi.
He added that the two inspection reports by the then District Environmental Officer and District Agricultural Officer in Garissa in 2005 and 2010 respectively confirmed this position.
The court ruled that KenGen had allowed waste oil fuel to leak from its premises onto the plaintiffs’ land.
“The first defendant (KenGen) knew or should have known, that if the waste oil escaped and was deposited onto the plaintiffs’ land, it would be detrimental to the farming activities. I hold that KenGen was negligent and was liable for negligence to the plaintiffs,” Justice Mutungi ruled.
The court noted that evidence was adduced that during the rainy season, all the waste oil generated from the routine washing of the engine room, the waste oil collection pit and oil spills from the engine room was washed down on nearby farms, but it was the plaintiff’s farm that was most affected.
“KenGen, in my view, has failed to take appropriate measures to ensure the waste oil is not washed out into the plaintiffs’ farm,” said Justice Mutungi.
He also ruled that KenGen should ensure that no oil spill or waste oil ends up either on people’s farms or in the River Tana.
“KenGen simply has not taken sufficient precaution to ensure it has an effective and efficient waste fuel or oil disposal mechanism that does not allow the spillage of sludge onto the neighbouring farms and the River Tana,” said Justice Mutungi.
The judge also ruled that KenGen has a constitutional duty to ensure that the environment is protected and preserved and therefore should not engage in any activity that could pose a threat to the environment.
“Spillage of waste fuel/oil into River Tana has the potential of polluting the river, which could expose the users to potential health risks,” said Justice Mutungi.
The court also ruled that the case against the Kenya Power and Lighting Company, which was the second defendant, was statute-barred on account of limitation and was unsustainable.
The farmers told the court that they were the registered owners of a large tract of farmland along the Tana River measuring about 110 acres.
They told the court that their farmland had been damaged by the oil spill caused by the defendant’s negligent acts, which had rendered the farmland unproductive.
