Green Lake Investment v Gerald Onyango t/a Alleways Bar and Restaurant & 5 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a constitutional petition concerning environmental noise
The court has jurisdiction because the petition seeks to enforce constitutional rights under Article 42; section 125 establishing the NET does not divest it
Relying on Owners of the Motor Vessel 'Lillian S', the court held jurisdiction is foundational and a party alleging its absence must prove it. Reading section 125 of EMCA, the court found it merely establishes the National Environmental Tribunal; the petition on its face seeks enforcement of constitutional rights, which the ELC is competent to entertain.
Capacity of a registered business name/partnership to sue
A firm may sue or be sued in its business name under Order 30 Rules 1 and 9 of the Civil Procedure Rules
The certificate of registration showed partners trading as Green Lake Investments. The court quoted Order 30 Rules 1 and 9, which permit partners carrying on business to sue or be sued in the firm name, and any person carrying on business in a name other than his own to be sued in that name. The objection to capacity therefore failed.
Whether the 1st Respondent was misjoined
The 1st Respondent is properly sued; his own submissions showed involvement in the business, and misjoinder is curable
Although the business registration showed other proprietors, the 1st Respondent's submissions about noise deliberations, grace periods and sound-proofing portrayed him as involved in the business. Further, Order 1 Rules 9 and 10 cure misjoinder by amendment, so it cannot justify striking out.
Entitlement to interim injunction and EIA order
Application dismissed - no prima facie case shown because no evidence established that noise exceeded permissible limits
Applying Giella v Cassman Brown, the applicant had to show a prima facie case with probability of success. There was no noise survey report under the Noise Regulations, no evidence of acceptable noise limits for the area, and no proof the noise complained of was a pollutant. The application therefore failed.
Legal principles established
#- A suit may properly be filed in a business/firm name under Order 30 Rules 1 and 9 of the Civil Procedure Rules
- A party alleging lack of jurisdiction bears the burden of substantiating it to the required standard
- Misjoinder or non-joinder is curable by amendment and cannot ground striking out of a suit
Court orders
#- 1.The Notice of Motion dated January 28, 2022 is dismissed
- 2.Costs of the application to abide the Petition
- Jurisdiction invoked
- Articles 22, 23, 40, 42, 69 and 70 of the Constitution; sections 13 and 18 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Green Lake Investment v Gerald Onyango t/a Alleways Bar and Restaurant & 5 others", Case Analysis (2022). Environment and Land Constitutional Petition E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14627/eng@2022-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.