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Court of AppealPartially AllowedCivil Appeal No. 67 of 2018· [2020] KECA 645 (KLR)

Heier v County Government of Kilifi & 4 others (Civil Appeal 67 of 2018) [2020] KECA 645 (KLR)

Court of Appeal
22 May 2020
5,889 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that noise pollution can be proven without official measurements, holding Kilifi County liable for failing to control disco noise.

What this practically means

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Executive summary

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This is a first appeal from the Environment and Land Court at Malindi (Olola, J.), which had dismissed the appellants' constitutional petition alleging that noise emissions from the Comeback Lounge and Disco in Watamu violated their right to a clean and healthy environment under Article 42 of the Constitution. The trial judge declined the sought declarations and injunction because the appellants had not obtained NEMA authorization to measure noise levels as required by regulation 6 of the Noise Regulations, 2009, and found the 4th respondent wrongly joined. The Court of Appeal first confirmed the petition satisfied the Anarita Karimi Njeru pleading threshold. It then re-evaluated the evidence, as it must on a first appeal, and found overwhelming, uncontroverted evidence of loud noise: the County Government's own Improvement Notice of 22nd May 2014 describing the loud music as a nuisance to residents, the County's 2015 letter to the Ombudsman, and persistent complaints since 1998. Regulation 3(2) supplies multiple non-measurement factors - time of day, proximity to residential areas, recurrence, amplification - which the evidence satisfied. Critically, regulation 6 places the duty to measure noise on the lead agency, so the County could not rely on its own omission. The Court also held the County Government and OCPD had abdicated their constitutional mandate to control noise, itself a violation. The appeal was allowed: the judgment and decree of 19th April 2018 were set aside and substituted with judgment for the appellants, comprising a declaration of violation and an injunction restraining the playing of music at the discotheque until full compliance with EMCA and the Noise Regulations, with costs to the appellants in both courts.

Key legal issues

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01

Whether noise level measurements by NEMA are a prerequisite to proving noise pollution

Holding

No. Regulation 6 makes measurement the responsibility of the lead agency, and regulation 3(2) provides multiple non-measurement factors for determining loud and unreasonable noise; the uncontroverted evidence satisfied those factors.

Reasoning

The trial judge confined himself to the absence of NEMA-authorized measurements and thereby disregarded overwhelming uncontroverted evidence: the County's own Improvement Notice of 22nd May 2014 admitting loud music as a nuisance, the letter to the Ombudsman of 27th May 2015, numerous complaints since 1998, the discotheque's location in a residential area without walls or soundproofing, and amplified music into the night. Regulation 3(2) factors independently established loud and unreasonable noise on a balance of probabilities.

p. 7
02

Whether the 1st and 2nd respondents abdicated their constitutional mandate

Holding

Yes. Despite issuing an Improvement Notice, the County Government failed to enforce it, failed to conduct noise level measurements it was obliged to conduct, and the police took no action on the Occurrence Book complaint.

Reasoning

The respondents received incessant complaints since 1998 and multiple community complaints. The County issued an Improvement Notice stopping discos until soundproofing was installed, but never enforced it. The County also left the compilation of noise measurements to the appellants contrary to regulation 6. There was no evidence the OCPD acted on the Occurrence Book complaint. This inaction breached their constitutionally donated responsibilities under Article 70 and the Sixth Schedule, itself violating the appellants' rights.

p. 7
03

Whether the petition met the constitutional pleading threshold

Holding

Yes. The petition specified the constitutional provision violated, the particulars of infringement, the violators, and the remedies sought, satisfying the Anarita Karimi Njeru requirement as adapted under the 2010 Constitution.

Reasoning

Applying Anarita Karimi Njeru and Trusted Society of Human Rights Alliance, the court held the petition was properly before the trial court because it identified Article 42, pleaded the particulars of the rights infringed and by whom, and specified the remedies. The respondents' contention that the constitutional threshold was not met therefore failed.

p. 4
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Whether this Court may interfere with the trial court's exercise of discretion

Holding

Yes. The judge misdirected himself by disregarding evidence and by relying solely on the absence of measurements, arriving at an erroneous decision.

Reasoning

Applying Mbogo v Shah, an appellate court will not interfere with discretion unless the court misdirected itself or was clearly wrong. Here the judge wholly disregarded the uncontroverted evidence of loud noise emissions and the regulation 3(2) factors, and failed to appreciate the County's abdication. The result was erroneous and deprived the appellants of their entitlement to redress, justifying interference.

p. 5

Legal principles established

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  • Noise pollution may be proved without NEMA-conducted noise level measurements; the regulation 3(2) factors (time of day, proximity to residential areas, recurrence, intensity, amplification, controllability) and other cogent evidence suffice.
  • The responsibility to measure noise levels lies with the lead agency under regulation 6, and a lead agency cannot rely on its own failure to undertake measurements to defeat a claim of noise pollution.
  • A constitutional petition satisfies the pleading threshold where it specifies the provision of the Constitution violated, the particulars of the infringement, by whom, and the remedies sought.
  • County Governments bear constitutional responsibility for control of air and noise pollution under Part 2 Clause 3 of the Sixth Schedule.

Court orders

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  1. 1.Declaration that the 1st, 2nd, 4th and 5th respondents' actions resulting in loud noise emissions from the Comeback Restaurant, Lounge and Disco in Watamu violated the appellants' right to a clean and healthy environment
  2. 2.Injunction restraining the 4th and 5th respondents from playing live music, streamed music or any other music at the Comeback Restaurant, Lounge and Disco until full compliance with EMCA and the Noise Regulations is achieved
  3. 3.Costs of the Environment and Land Court and of the appeal awarded to the appellants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Part 2 Clause 3 of the 6th Schedule
  • Environment Management and Coordination Act (EMCA)Section 3(3) and (4)
  • Environment Management and Coordination Act (EMCA)Section 9(2)
  • Environment Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009Regulations 3(1), 3(2), 5, 6 and 25
  • National Environment (Noise Standards and Control) Regulations, 2003Regulation 15(2) and (4)
  • Environmental (Impact Assessment and Audit) Regulations 2003Regulation 37

Cases cited (8)

  • Selle & Another vs Associated Motor Boat Company & Others
    (1968) EA 123
  • Ramjiratna and Company Limited vs Wood Products Kenya Limited
    CA No. 117 of 2001
  • Hahn vs Singh
    (1985) KLR 716
  • Ephantus Mwangi & Another vs Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR
  • Trusted Society of Human Rights Alliance vs Attorney General & 2 Others
    [2012] eKLR
  • Mbogo & Another vs Shah
    [1968] EA p.15
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
On appeal from
Environment and Land Court at Malindi
ELC No. 23 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and applicable appellate procedure; the petition below was brought under Articles 22(1), 42 and 70 of the Constitution and section 3(3) of the Environment Management and Coordination Act.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Heier v County Government of Kilifi & 4 others (Civil Appeal 67 of 2018) [2020] KECA 645 (KLR)", Case Analysis (2020). Civil Appeal No. 67 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/645/eng@2020-05-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.