A court has ordered Kenya Electricity Generating Company Limited (KenGen) to pay Sh10 million to some farmers whose farmlands along the Tana River were damaged by oil leakage from its power plant during the rainy season.
The Garissa Environment and Land Court ordered Kingen, under the supervision of the Garissa County Environment Director, to put in place mitigation and remedial measures within six months, including a spent fuel disposal system that will prevent oil spills from leaking into nearby farms or the Tana River, including during the rainy season.
Justice John Mutungi, who ordered Kingen to pay compensation with interest at court rates until full payment, ordered the county environment manager to submit a status report to the court on the implementation of corrective measures on or before March 31, 2025.
The ten plaintiffs (farmers) had filed the case in the High Court in Nairobi in 2005 before it was transferred to the Environment and Lands Court.
The judge ruled that he was satisfied that the repeated oil spills from the Kingen Power Station during the rainy season and that the plaintiff, Likoli Farm, were among those affected.
“Based on the evidence adduced, the court accepts as an established fact that the repeated oil spills from Kingen’s storage tanks were routinely washed away by water whenever there was a flooding of water during rainy weather, some of which found its way onto the farms of farmers and neighbours,” Justice Mutungi ruled.
He added that the inspection reports conducted by the then District Environment Officer and the District Agriculture Officer in Garissa in 2005 and 2010 respectively confirmed this position.
The court ruled that Kengen allowed used oil fuel to leak from its facilities onto the plaintiffs’ land.
“The first defendant (Kingen) knew or should have known, that if the used oil leaked and was deposited on the plaintiffs’ land, it would be detrimental to the agricultural activities. I find that Kingen was negligent and liable for its negligence towards the plaintiffs,” Justice Mutungi ruled.
The court noted that the evidence presented indicated that all the spent oil resulting from the routine washing of the engine room and the spent oil collection pit and oil spills from the engine room were carried during the rainy season to nearby farms, but that the plaintiff’s farm was the most affected.
“In my opinion, Kingen failed to take adequate measures to ensure that the used oil did not leak onto the plaintiffs’ farm,” Justice Mutungi said.
It also ruled that King Jane must ensure that no oil spill or oil waste occurs either on people’s farms or in the Tana River.
“Kingen failed to take adequate precautions to ensure that there was an effective and efficient mechanism for the disposal of spent fuel or oil, which would not allow sludge to leak into neighbouring farms and the Tana River,” Judge Mutungi said.
The judge also ruled that Kengen had a constitutional duty to ensure the protection and preservation of the environment, and therefore should not engage in any activity that would pose a threat to the environment.
“The leakage of spent fuel/oil into the Tana River has the potential to pollute the river, potentially exposing users to potential health risks,” Justice Mutungi said.
The court also ruled that the case against Kenya Power and Lighting Company, which was the second defendant, was time-barred and no longer maintainable.
The farmers told the court that they were the registered owners of a large area of agricultural land along the Tana River, about 110 acres.
They told the court that their farmland was damaged by oil spills due to the defendant’s negligent actions, rendering the farmland unproductive.