Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedApplication dated 22nd December 2021 (suit number not stated in judgment)· [2022] KEELC 2858 (KLR)

Evergreen Apartments Management Limited v Foody Freshi t/a Hera Aqua Gardens & 6 others (Environment & Land Case E451 of 2021) [2022] KEELC 2858 (KLR)

Environment and Land Court
7 July 2022
LMLucy N. Mbugua
3,018 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Nairobi court temporarily shut down bars and clubs operating in a residential area near schools, confirming residents can sue over noise under constitutional environmental rights.

What this practically means

#

Executive summary

#
The Plaintiff sought temporary injunctions restraining the 1st to 3rd Respondents from operating night clubs and wine and spirits businesses in a zoned residential area near a learning institution along Kandara Road, Kileleshwa, orders compelling the 4th to 6th Respondents (state and county agencies and NEMA) to enforce compliance, an OCS enforcement order, and cancellation or suspension of the liquor licences. The Respondents opposed the application, variously denying the character of their businesses, contending they held approvals and licences, and objecting to jurisdiction on the ground that the National Environment Tribunal and the County Alcoholic Drinks Control and Licensing mechanisms had not been exhausted. The court framed two issues: jurisdiction and whether the Applicant merited the orders sought. On jurisdiction, it held that although alternative statutory fora exist, Article 70(1) of the Constitution permits a claimant alleging violation of the right to a clean and healthy environment to seek redress in court in addition to other remedies, so the suit was properly before the ELC. On the injunction, applying Giella v Cassman Brown and Nguruman, the court found a genuine and arguable case: the residential character of the area and proximity of schools were unrefuted, and NEMA's own inspection confirmed the premises operated without an EIA licence and had sound equipment. Continuous noise and the influence on school-going children were injuries damages could not adequately compensate. The court allowed only prayer 3, restraining the 1st to 3rd Respondents from operating their business establishments in the area for one year, and deferred all major reliefs and the authority-to-sue challenge to the full hearing; costs abide the outcome of the suit.

Key legal issues

#
01

Jurisdiction of the ELC vis-à-vis alternative statutory dispute resolution fora

Holding

The court has jurisdiction because the applicant invokes the constitutional right to a clean and healthy environment under Article 70(1), which is available in addition to other remedies.

Reasoning

Respondents argued the National Environment Tribunal and the County Alcoholic Drinks Control and Licensing subcommittee had mandate. The court acknowledged the alternative fora but held that Article 70(1) allows a person alleging violation of the right to a clean and healthy environment to apply to court 'in addition to any other legal remedies'. The issues raised were a 'mixed grill', and the constitutional route remained open.

p. 5
02

Whether a temporary injunction should issue against the 1st-3rd Respondents

Holding

A temporary injunction was granted restraining the 1st, 2nd and 3rd Respondents from operating their business establishments in the area for one year.

Reasoning

Applying Giella v Cassman Brown and Nguruman, the court found a genuine and arguable case: none of the respondents refuted that the establishments were in a residential area near schools; NEMA's inspection confirmed operation without an EIA licence and presence of sound equipment. The injury (noise, influence on children) was continuous and un-quantifiable, so damages would not suffice.

p. 6

Legal principles established

#
  • The right to a clean and healthy environment under Article 70 can be litigated in court notwithstanding the existence of alternative statutory remedies.
  • There should be no liquor selling near schools or in residential areas.
  • Continuous injury such as noise pollution cannot be adequately compensated by an award of damages.

Court orders

#
  1. 1.Prayer no. 3 of the application dated 22.12.2021 allowed to the extent that the 1st, 2nd and 3rd Respondents are restrained from operating their business establishments in the area.
  2. 2.The restraining orders shall remain in force for a period of one year.
  3. 3.Costs of the application shall abide the outcome of the suit.
Jurisdiction invoked
Article 70(1) of the Constitution of Kenya 2010 (right to a clean and healthy environment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Evergreen Apartments Management Limited v Foody Freshi t/a Hera Aqua Gardens & 6 others (Environment & Land Case E451 of 2021) [2022] KEELC 2858 (KLR)", Case Analysis (2022). Application dated 22nd December 2021 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2858/eng@2022-07-07

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