Nishant Aggarwal v Mint Shack Limited t/a Barrels and Stools Lounge
The bottom line
#Kenya's Environment and Land Court confirmed it can hear noise pollution claims as constitutional environmental rights cases, and set aside orders made against a restaurant that wasn't properly heard.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over noise pollution claims vis-à-vis EMCA exhaustion mechanisms
The court has jurisdiction; the claim is anchored on the constitutional right to a clean and healthy environment, which only a court can determine, and section 129 EMCA does not oust that jurisdiction
The court distinguished appeals from NEMA decisions under section 129 EMCA, which go to the National Environment Tribunal, from direct claims for violation of the Article 42 right. The noise complaints had no nexus with any NEMA decision, and the issues cannot be severed between the Tribunal and the Court. Section 13(3) of the ELC Act expressly preserves the Court's power to hear redress applications under Articles 42, 69 and 70.
Validity of pleadings filed by a firm after a notice of change of advocates
The change of advocates was properly effected on 10/07/2023; the preliminary objection and grounds of opposition filed by Odindo & Co. on 11/09/2023 were irregular and not entertained
Odindo & Co. came on record on 15/06/2023, but Yano & Co. filed a notice of change of advocates on 10/07/2023. Odindo & Co.'s later filing of the preliminary objection and grounds of opposition on 11/09/2023, and a further irregular notice of appointment dated 20/09/2023, came after the change and were therefore disregarded.
Joinder of NEMA as interested party
Refused; the Applicant failed to demonstrate NEMA's identifiable stake, the prejudice from non-joinder, or that its presence is necessary for complete adjudication
Applying the Muruatetu principles and Order 1 Rule 10(2), the court held that a mere assertion that the complaint falls within NEMA's mandate is insufficient. The threshold for joinder should not be low, and NEMA can properly be summoned as an expert witness at the instance of either party instead.
Setting aside the ex parte orders of 14/06/2023
Allowed; the Defendant was served on Friday 9/06/2023 with an inter partes hearing on 14/06/2023, leaving barely two days, and was condemned unheard
Guided by Shah v Mbogo and CMC Holdings v Nzioka, the court held the discretion to set aside ex parte orders exists to avoid injustice from excusable mistake or inadvertence. The Defendant was served on a Friday and its notice of appointment was filed a day after the hearing date; denial of the right to be heard renders a decision null and void ab initio.
Defendant's application for a temporary injunction against the Plaintiff
Refused; no prima facie case with probability of success and no irreparable harm demonstrated
Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the application advanced no argument in support of prayer 6, which was left 'hanging'. The Applicant only challenged the 14/06/2023 orders and jurisdiction, and failed the first two Giella conditions.
Legal principles established
#- Section 129 EMCA does not oust the ELC's jurisdiction to hear constitutional claims for violation of the right to a clean and healthy environment under Articles 42, 69 and 70
- Pleadings filed by a firm of advocates after a valid notice of change of advocates are irregular and will not be entertained
- An ex parte order may be set aside where the party demonstrates sufficient cause, particularly where it was condemned unheard
Court orders
#- 1.The preliminary objection and grounds of opposition dated 7/09/2023 filed by Odindo & Co. Advocates are not entertained, having been filed after the change of advocates was effected on 10/07/2023
- 2.Prayer 2 of the application (joinder of NEMA as interested party) is declined
- 3.The order given on 14/06/2023 is set aside
- 4.The Defendant is granted leave to file a response to the Plaintiff's Application dated 26/05/2023
- 5.Mention on 9/11/2023 for further directions
- 6.Costs shall be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (No. 19 of 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nishant Aggarwal v Mint Shack Limited t/a Barrels and Stools Lounge", Case Analysis (2023). Environment & Land Case E193 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21379/eng@2023-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.