Compensation Funds as a Remedial Mechanism for Victims of Corporate Pollution in Kenya: A Feasibility Study

Abstract

This article explores the potential of a public-run, risk-based compensation fund to provide compensation for victims of corporate pollution in Kenya. Existing remedial mechanisms are severely limited by the uncertainty of recovery attributable to doctrinal barriers in liability rules, the length of time and cost involved in settling claims and the impact of corruption as a hindrance to access to justice. Depending on their design, compensation funds could offer prompt compensation at lower personal costs to claimants. Considering that victims of corporate pollution in Kenya tend to be poor, prompt compensation can cushion their welfare by providing much-needed funds to cover medical expenses and support livelihoods. While claimants would likely obtain less compensation in absolute amounts than in tort litigation, they would still retain the right to pursue supplemental compensation through alternative mechanisms. Thus, a pragmatic approach would be to develop a compensation fund while introducing effective reforms to existing mechanisms.