Wamuyu, Odote and Anyango, ‘Compensating Toxic Torts in Kenya: Overcoming the Causation Dilemma’

ABSTRACT
Environmental degradation is at unprecedented level in the world. One of the common causes of environmental degradation is pollution which as a consequence leaves contaminants in the environment. The contaminants in the environment cause many diseases to human beings therefore compromising the ability of the environment to support a healthy life. Appropriate legal mechanisms need to be employed in order to make those responsible for pollution liable for environmental damage. Environmental liability frameworks provide an avenue through which claims are verified in order to ascertain proper claimants as well as identifying the polluters who should be made to pay for harm suffered by the victims of pollution. Toxic tort plaintiffs often face challenges when proving the link between the polluter’s activities and their injuries. The inability to prove causation leads to dismissal of cases leaving the victims of pollution without compensation.

The article discusses the pollution problem in Kenya and the causation dilemma that must be tackled by the victims of toxic torts in order to be compensated for their injuries. The article argues that to strengthen compensation outcomes, causation challenges must be addressed within any existing environmental liability framework. The article recommends adoption of a realistic approach by the court when dealing with causation challenges rather than a rigid application of the common law principles which do not favor the process of proving causation for toxic torts. The article proposes an administrative compensation system to complement the adversarial court system and the imposition of strict liability doctrine for polluters responsible for environmental damage.

Hannah Wamuyu, Collins Odote and Stephen Anyango, Compensating Toxic Torts in Kenya: Overcoming the Causation Dilemma (2021) 12 Journal of Sustainable Development Law and Policy (2) 258, https://dx.doi.org/10.4314/jsdlp.v12i2.5. Published 2021-12-13.

First posted 2021-12-16 19:00:46

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