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ELCDismissedNot stated in judgment (Notice of Motion dated 19th November 2018)· [2019] KEELC 4888 (KLR)

Alexander Juras & another v John Katana Baya t/a Club4fun Restaurant, Pool and Bar [2019] KEELC 4888 (KLR)

Environment and Land Court
24 January 2019
JOJ.O. Olola
1,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenyans complaining about noisy businesses must bring official noise measurements from NEMA or a lead agency, or courts will dismiss their cases.

What this practically means

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Executive summary

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The Plaintiffs, Alexander Juras and Elmira Aleynikova, owners of a vacation house on Plot No. Kilifi/Jimba/537 in Watamu, moved the court by Notice of Motion dated 19th November 2018 seeking to restrain the Defendant, John Katana Baya, from carrying on restaurant and open air disco activities at Club4Fun Restaurant, Pool and Bar pending an environmental report under Section 58(1) EMCA, and an injunction against noise, vibration and waste pollution. The original defendant, an employee, was replaced under Order 1 Rule 10(2) of the Civil Procedure Rules. The Defendant denied the allegations, asserted compliance with all licensing requirements, and noted that criminal charges brought via a NEMA complaint had been withdrawn and terminated for lack of evidence. The court held that while Section 3(1) EMCA entitles every person to a clean and healthy environment, the Plaintiffs bore the burden of demonstrating that the noise exceeded permissible levels as measured by a relevant lead agency or a NEMA-authorized person under Section 6 of the 2009 Noise Regulations. No such measurements or guidelines were exhibited. Nor did the Plaintiffs show that the establishment required an EIA licence, and no evidence of an Environment Restoration Order was produced. The court found the Plaintiffs had not met the threshold for an interlocutory injunction and dismissed the application with costs to the Defendant.

Key legal issues

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01

Proof of noise pollution under the 2009 Noise Regulations

Holding

The Plaintiffs failed to prove that noise from the Defendant's establishment exceeded permissible levels, having exhibited no NEMA measurement guidelines and no evidence of proper measurement

Reasoning

The Regulations define noise pollution and excessive vibration and require that measurements be taken by a relevant lead agency or, failing that, a person authorized by NEMA knowledgeable in the use of measuring equipment. The Plaintiffs produced no such measurements or guidelines, so their allegations of excessive noise and vibration were unsupported.

p. 3
02

Requirement of an EIA licence and Environment Restoration Order

Holding

The Plaintiffs did not show that the Defendant's establishment required an EIA licence, and no evidence of the issuance of an Environment Restoration Order was adduced; the criminal charges arising from an earlier complaint were terminated

Reasoning

While commencing a project without an EIA licence is an offence, the Plaintiffs placed nothing before the court showing the establishment required such a licence. NEMA had charged the Defendant but those charges were terminated, and no evidence of a Restoration Order was produced.

p. 3
03

Entitlement to a clean and healthy environment under Section 3(1) and 3(3) EMCA

Holding

Every person is entitled to a clean and healthy environment and may apply to the Environment and Land Court for redress where that right is threatened, but the applicants must still establish their case

Reasoning

Section 3(1) EMCA grants every person entitlement to a clean and healthy environment, and Section 3(3) allows an aggrieved person to seek redress from the Environment and Land Court, which may make orders to prevent or discontinue deleterious acts. The court has such jurisdiction, but the Plaintiffs did not discharge their evidentiary burden.

p. 2

Legal principles established

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  • Measurements to determine whether noise or vibration levels exceed permissible levels must be taken by a relevant lead agency or a person duly authorized by NEMA
  • A party alleging noise pollution must demonstrate that the noise complained of exceeds permissible levels for the establishment concerned

Court orders

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  1. 1.The application dated and filed on 19th November 2018 is dismissed with costs to the Defendant/Respondent

Authorities

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Legislation

  • Environmental Management & Coordination Act No. 8 of 1999Sections 3(1), 3(3), 7, 9, 58(1), 87(1), 147
  • Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009Sections 3(1), 4, 6, 6(3), 6(4); Part 2 Regulation 3(1)
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure ActSection 87(a)
Jurisdiction invoked
Section 3(3) of the Environmental Management and Coordination Act, No. 8 of 1999 (EMCA)

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, "Alexander Juras & another v John Katana Baya t/a Club4fun Restaurant, Pool and Bar [2019] KEELC 4888 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 19th November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4888/eng@2019-01-24

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