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ELCOtherNot stated in judgment· [2018] KEELC 3016 (KLR)

Deepak Harakhchand Somchand (suing as the Secretary of Mpaka Villas Association) v Bhakta Thapa & 2 others [2018] KEELC 3016 (KLR)

Environment and Land Court
30 May 2018
KBK. BOR
1,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to shut down a Westlands hotel pending trial but ordered it to stop noise, affirming residents' right to a clean, healthy environment.

What this practically means

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Executive summary

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The Plaintiff, suing as secretary of Mpaka Villas Association, applied by notice of motion dated 14/9/2017 for a temporary injunction restraining the 1st and 2nd Defendants from carrying on commercial activities within L.R. No. 1870/304 off Mpaka Road, Westlands, Nairobi, pending trial, and restraining the County Government of Nairobi (3rd Defendant) from issuing licences or approvals for commercial activities on the plot. The Plaintiff complained of noise pollution, insecurity, traffic inconvenience and exposure of children to immoral culture emanating from Dafe's Lounge Hotel and Restaurant. The 1st Defendant denied ownership, asserting the business belongs to Dafe's Lounge Hotel and Restaurant Limited, incorporated on 21/5/2017, holding a business permit as a medium lodging house with restaurant and/or bar. The 2nd Defendant deponed that the area is a mixed development zone and that user was changed from single dwelling to residential hotel following a notice published in The Standard on 11/1/2017 and a site notice, with no objections, and the change was approved on 23/2/2017. Dominic Mutegi, the 3rd Defendant's Director, confirmed this process. A NEMA environmental audit of 31/10/2017 found no loud music and low noise levels requiring no survey under Rule 6(1) of the Noise Prevention and Control Rules, 2005. The Plaintiff invoked Section 36 of the Physical Planning Act and Section 58 of the Environmental Management and Coordination Act, arguing lack of compliance and public participation. K. Bor J declined to grant prayers 2 and 3, holding they could only be determined after trial, but ordered the Defendants to ensure there is no noise in the suit property pending determination, each party bearing its own costs.

Key legal issues

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01

Whether a temporary injunction should issue to restrain commercial activities on the suit property

Holding

The application was not granted as prayed; only a limited order restraining noise was issued pending trial

Reasoning

The court noted that the Applicant's relied-on findings were made after a full hearing, whereas the court was dealing only with an interlocutory application. It therefore declined to grant the substantive prayers for restraint of commercial activities and licensing, reserving them for trial, while issuing a targeted order against noise.

p. 2
02

Noise pollution and the right to a clean and healthy environment

Holding

Noise which can cause health problems would hamper residents' right to a clean and healthy environment; Defendants ordered to ensure no noise pending trial

Reasoning

The NEMA environmental audit found no loud music or sound systems and that noise levels were low such that a noise survey was unnecessary under Rule 6(1) of the Noise Prevention and Control Rules, 2005. The Respondents conceded noise pollution is a nuisance but argued only noise above 50-55 decibels causes annoyance. The court balanced these considerations by issuing a noise-restraint order.

p. 2
03

Compliance with change of user procedures, public participation and environmental impact assessment

Holding

The change of user process was defended as having been duly followed, with newspaper notice and site board; the issue was left for trial

Reasoning

The 3rd Defendant's Director confirmed the application for change of user on 24/1/2017, publication in The Standard on 11/1/2017, erection of a site notice, and approval on 23/2/2017 absent objections. The Plaintiff argued non-compliance with Section 36 of the Physical Planning Act and Section 58 of EMCA, but the court deferred determination to trial.

p. 2

Legal principles established

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  • Residents in an area are entitled to a clean and healthy environment, and noise capable of causing health problems hampering that enjoyment must be restrained pending trial

Court orders

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  1. 1.The Defendants must ensure that there is no noise in the Suit Property until the matter is heard and determined
  2. 2.Prayers number 2 and 3 of the application were not granted at the interlocutory stage, being reserved for trial
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Physical Planning ActSection 36
  • Environmental Management and Coordination ActSection 58
  • Noise Prevention and Control RulesRule 6(1)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land and environment disputes (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Deepak Harakhchand Somchand (suing as the Secretary of Mpaka Villas Association) v Bhakta Thapa & 2 others [2018] KEELC 3016 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3016/eng@2018-05-30

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