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.