KenGen gets reprieve in Sh3bn Tana River floods payout case

 Flooded homes at Bandi Village in Garsen Tana River County on May 18, 2018. Garsen MP sued KenGen over flooding that occurred on April 24, 2018, alleging negligence and malice.

Photo credit: File | Nation Media Group

A court has dismissed a petition by a Member of Parliament seeking Sh3.2 billion compensation from the Kenya Electricity Generating Company (KenGen) for households in six constituencies in Tana River County affected by flood water from dams run by the power producer.

Justice Mwangi Njoroge, sitting at the Environment and Land Court in Malindi ruled that KenGen did not deliberately or even accidentally release excess water from its dams.

The judge also said that the loss claimed cannot be attributed to the electricity generating company.

Garsen MP Ali Wario Guyo sued KenGen over the flooding that occurred on April 24, 2018, alleging negligence and malice.

As such he was seeking compensation for residents of Garsen, Galole, Bura, Balambala, Fafi, and Garissa Township constituencies.

He claimed that the floods caused by the upstream dams had affected the livelihoods of the residents downstream.

However, Justice Njoroge ruled that there was no basis to hold KenGen liable for violation of any constitutional rights of the residents.

The court observed that the cascading nature of the dams helps in storing and handling large amounts of water which would have naturally flowed downstream from the upper catchment areas.

“This court further agrees with KenGen that the handling of this volume of water through the cascade of dams helps in completely preventing, delaying, reducing or mitigating the extent of flooding during periods of abnormal or excessive rainfall,” ruled Justice Njoroge.

He added that were the dams not there, there would be a regular catastrophe of annual floods for areas downstream of the dams.

“Allowing the excess water for which the dam had no storage room to flow back into the river course, the respondent (KenGen) cannot be said to have been causing a non-natural use of land,” ruled Justice Njoroge.

The judge further ruled that the notice on the flooding situation that KenGen gave was adequate and that the loss claimed could not be attributed to it.

The petitioner had claimed that his and the residents’ efforts to take responsibility bore no fruit hence causing them to move the National Assembly via a public petition.

KenGen stated that despite not being under any constitutional duty to compensate affected residents, it set aside a significant part of its corporate social responsibility budget to support them.

It further argued that the construction of the dams had greatly improved the flooding situation previously experienced in the areas.

The respondent further said that the dams were at all times well maintained, helped in controlling floods, and asserted that it was for the petitioner to prove the contrary.

KenGen said that the spilling of water was not deliberate and that it did not release the water from the dams as alleged hence it was not responsible for the displacement and destruction caused.

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