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ELCDismissedNotice of motion dated 7/2/2018 in the suit (notice of motion dated 19/12/2017)· [2019] KEELC 687 (KLR)

Ajit Riyat & another v Roof Top Forty Holdings Ltd & 2 others [2019] KEELC 687 (KLR)

Environment and Land Court
20 November 2019
BEB M Eboso
1,330 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to punish a Nairobi lounge for contempt because the complainants produced no evidence of actual noise levels or the applicable zone.

What this practically means

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Executive summary

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By a notice of motion dated 7/2/2018, the plaintiffs sought a finding that the directors of the 1st defendant, Allan Esabwa Igambi and Irene Wambui Njoroge, and its manager, Ms Lailah, were in contempt of the court order dated 9/1/2018, which restrained the 1st defendant from playing or streaming loud music or causing vibrations at 40-Forty Lounge on Crossroad Plaza, Westlands, pending hearing of an earlier application dated 19/12/2017. The plaintiffs contended that the order was served on the defendant and that the directors knowingly permitted continued loud music. The 1st defendant opposed through a replying affidavit of Maurice Obunga, its Operations Manager, conceding awareness of the order but asserting compliance measures, and arguing that no evidence showed permissible decibel levels were exceeded, that the order did not specify decibel levels, and that personal service on the directors was not proved. The court found awareness of the order uncontested and framed the key issue as breach. Construing the order, the judge held that 'loud music' must be measured against the permissible sound levels set by the Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution) (Control) Regulations 2009 for the relevant zone. The plaintiffs adduced no evidence on noise levels or the applicable zone, and made no attempt to procure enforcement by the Officer Commanding Parklands Police Station, who had been authorised to enforce the order. Applying sections 107 and 109 of the Evidence Act, the court held the plaintiffs failed to discharge the burden of proving breach and deliberateness, and the application was rejected with costs in the cause.

Key legal issues

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01

Whether contempt of the interim injunction was established

Holding

Contempt was not established because the plaintiffs adduced no evidence of the noise levels or the applicable zone and made no attempt to procure police enforcement

Reasoning

The order restrained playing loud music, but the court construed 'loud' by reference to the statutory permissible sound levels for specific zones. The plaintiffs produced no decibel evidence and did not identify the zone of the premises. Although the OCS Parklands was authorised to enforce the order, the plaintiffs never served it on him for enforcement. The essential elements of contempt, including breach and deliberateness, were therefore not proved.

p. 2
02

Burden of proof in contempt applications

Holding

The burden lies on the applicant alleging contempt under sections 107 and 109 of the Evidence Act

Reasoning

The court framed the key issue as whether the order was breached. Applying the evidential burden rules, the party who alleges breach must demonstrate it; awareness of the order was uncontested, but the allegation of breach had to be proved with evidential material, which the plaintiffs did not supply.

p. 2

Legal principles established

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  • Loud music or vibration in an injunction is measured against the statutory permissible sound levels for the relevant zone under the Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution) (Control) Regulations 2009
  • A party alleging contempt bears the burden of proving breach of the order, under sections 107 and 109 of the Evidence Act
  • Where an order authorises police enforcement, the duty lies on the decree-holder to serve the order on the named police officer and seek enforcement, escalating up the command chain if refused

Court orders

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  1. 1.The notice of motion dated 7/2/2018 is rejected
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Evidence ActSections 107 and 109
  • Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution) (Control) Regulations 2009Regulation 5 and the First Schedule

Cases cited (3)

  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR
  • Wildlife Lodges Ltd v County Council of Narok and another
    [2005] 2 EA 344 (HCK)
  • Katsuri Limited v Kapurchand Depar Shah
    Nairobi HCCC No. 25 of 2013
Jurisdiction invoked
Inherent contempt jurisdiction of the High Court/Environment and Land Court to enforce its own orders (order of 9/1/2018 issued in the same suit)

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, "Ajit Riyat & another v Roof Top Forty Holdings Ltd & 2 others [2019] KEELC 687 (KLR)", Case Analysis (2019). Notice of motion dated 7/2/2018 in the suit (notice of motion dated 19/12/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/687/eng@2019-11-20

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