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ELCAllowedE.L.C. Petition No. 16 of 2017· [2019] KEELC 4283 (KLR)

Ali Ronow Hassan Haji And Fred Kondo Athuok t/a Issack and Company Advocates v Airtel Kenya Limited & 3 others [2019] KEELC 4283 (KLR)

Environment and Land Court
19 February 2019
KBK. BOR
3,528 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Airtel and its shop operator to stop excessive promotional noise, confirming brands share liability for franchisee noise pollution.

What this practically means

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Executive summary

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The Petitioners, advocates practising from Hughes Building on Kenyatta Avenue, petitioned the Environment and Land Court at Nairobi alleging that noise from loud speakers and loud music advertising products at an Airtel Shop in Phoenix House violated their right and the public's right to a clean and healthy environment under Article 42 of the Constitution and the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009. They sought orders compelling Airtel to discontinue the noise and compelling the County Government of Nairobi and NEMA to prosecute offenders. Airtel filed a preliminary objection claiming it was neither lessor nor lessee of the premises and filed a replying affidavit through its Legal Affairs Manager, asserting that the shop was operated by Dixons Electronics Limited under a franchise agreement obliging the latter to comply with the law. Dixons and NEMA did not respond; the County Government filed grounds of opposition. The court framed four issues and held that under Clause 3.1 of the Service Agreement, marketing and promotion of Airtel products was to be jointly undertaken by Airtel and Dixons, so both were liable for the noise. A NEMA-registered expert's survey recorded readings of 76.7 to 84.7 dB(A), exceeding the 60 dB(A) maximum for commercial zones, with no permit to exceed standards. The court held that a petitioner under Article 70 need not prove loss or damage, and that control of noise pollution is a concurrent function of both levels of government. The petition was allowed: the 1st and 4th Respondents were ordered to discontinue the noise pollution, failing which the 2nd and 3rd Respondents were directed to prosecute them, and to enforce the Regulations generally within Nairobi County. Costs were awarded to the Petitioners, borne by the Respondents.

Key legal issues

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01

Liability of the franchisor for noise from the franchisee's shop

Holding

Both Airtel Kenya and Dixons Electronics are liable for the noise pollution because Clause 3.1 of the Service Agreement required joint marketing and promotion of Airtel products.

Reasoning

The court examined Clause 3 of the Service Agreement, which provides that the franchise retailer and Airtel shall jointly undertake marketing and promotion. Since the source of the noise was the advertisement and marketing of Airtel products, Airtel's claim that it had no control could not stand. Both the 1st and 4th Respondents were therefore found liable.

p. 2
02

Whether the Petitioners' right to a clean and healthy environment was contravened

Holding

The loud advertising by the 4th Respondent of the 1st Respondent's products was unreasonable and contravened the Petitioners' Article 42 right.

Reasoning

A noise survey report by a NEMA-registered lead expert recorded readings of 76.7 to 84.7 dB(A), exceeding the 60 dB(A) maximum for commercial zones, and no permit had been granted to exceed the standards. The court found the advertising unreasonable and without regard to surrounding offices.

p. 4
03

Whether the Petitioners had to prove loss or damage

Holding

Under Article 70, a person alleging violation of the right to a clean and healthy environment need not demonstrate loss or damage.

Reasoning

The court held that Article 70 empowers any person alleging that the right has been or is likely to be denied, breached or violated to apply for redress, without proof of loss, rejecting the respondents' contention that damage had to be proved.

p. 3
04

Roles of the County Government and NEMA in noise control

Holding

Both the 2nd and 3rd Respondents have a role in noise pollution control; control of noise pollution is a concurrent function under the Fourth Schedule.

Reasoning

NEMA is the principal instrument of government in implementing environmental policy, while under Part 2(3) of the Fourth Schedule county governments control noise pollution and other public nuisances. The functions are intertwined and concurrent under Article 186(2).

Legal principles established

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  • A franchisor which jointly undertakes the marketing and promotion of its products with a franchise retailer is liable for noise pollution arising from that marketing.
  • A petitioner alleging violation of the right to a clean and healthy environment need not prove loss or damage.
  • Control of noise pollution is a concurrent function of both national and county levels of government.
  • The maximum permissible noise level for commercial zones is 60 dB(A) under the First Schedule to the Noise Regulations.

Court orders

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  1. 1.An order compelling the 1st and 4th Respondents, their agents or servants to discontinue all noise pollution being caused or permitted to be caused in the Airtel Shop in Phoenix House, Kenyatta Avenue in the Central Business District of Nairobi
  2. 2.A direction that if the 1st and 4th Respondents do not forthwith cease to cause or permit the noise pollution from the Airtel Shop, the 2nd and 3rd Respondents are to prosecute the 1st and 4th Respondents for the offences created under EMCA and the Noise Regulations
  3. 3.An order compelling the 2nd and 3rd Respondents jointly and severally to prosecute any person causing noise pollution, including those using loud speakers for marketing purposes, within Nairobi County in accordance with EMCA and the Regulations
  4. 4.A direction that the 2nd and 3rd Respondents enforce EMCA and the Regulations to ensure abatement of unreasonable noise and vibration pollution within Nairobi County
  5. 5.Costs of the petition awarded to the Petitioners, to be borne by the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 3(1), 10(2), 19, 20, 22, 23, 24, 42, 69, 70, 159, 176(1), 182, 186(1) & (2), 258 & 259; Fourth Schedule Part 2(3)
  • Environmental Management and Coordination Act (EMCA)Sections 2, 7, 9, 101, 102, 144, 147
  • Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009Regulations 5, 6; Part II; First Schedule

Cases cited (1)

  • James Jessie Gitahi & 202 Others v Attorney General
    [2013] eKLR
Jurisdiction invoked
Articles 22, 23, 70 and 258 of the Constitution of Kenya (enforcement of the Bill of Rights, including the right to a clean and healthy environment under Article 42)

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, "Ali Ronow Hassan Haji And Fred Kondo Athuok t/a Issack and Company Advocates v Airtel Kenya Limited & 3 others [2019] KEELC 4283 (KLR)", Case Analysis (2019). E.L.C. Petition No. 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4283/eng@2019-02-19

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