Aggarwal v Mint Shack Limited t/a Barrels and Stools Lounge (Environment & Land Case 193 of 2023) [2024] KEELC 336 (KLR)
The bottom line
#Nairobi's Environment and Land Court ordered a bar to stop excessive noise, confirming residents can sue directly for environmental rights violations.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and the doctrine of exhaustion under EMCA
The ELC has jurisdiction; the Supreme Court has confirmed that redress for constitutional violations of the right to a clean and healthy environment is not part of the mandate of NET or the Public Complaints Committee, so exhaustion under EMCA is not required.
The defendant contended the suit was premature for failure to exhaust mechanisms in sections 32, 125 and 129 of EMCA. The court relied on a Supreme Court decision confirming that section 13(2) of the ELC Act confers original jurisdiction over violations of articles 42, 69 and 70 rights, and that redress for constitutional violations is outside the mandate of the NET. It also noted jurisdiction had already been determined in a ruling dated 2/11/2023.
Whether the applicant established a prima facie case for an interlocutory injunction
Yes. The applicant's complaints of noise pollution violating the right to a clean and healthy environment, coupled with the non-response of regulatory institutions, established a prima facie case, and the precautionary principle favoured granting the injunction.
Applying Giella v Cassman Brown and Mrao, the court found the applicant had presented complaints to NEMA, NECC, the police and the County, none of which acted. In the absence of remedial measures, the court accepted the applicant's contention and invoked the precautionary principle (in dubio pro natura), citing Broder v Sailland on noise as actionable nuisance.
Legal principles established
#- A court must halt proceedings where it lacks jurisdiction and cannot arrogate to itself jurisdiction not conferred by law
- Section 13 of the ELC Act confers original jurisdiction on the ELC to determine redress for denial, violation, infringement or threat to constitutional rights relating to environment and land, and EMCA's exhaustion mechanisms do not oust that jurisdiction for constitutional violations
- The precautionary principle applies in cases of doubt regarding environmental harm
- Noise which prevents people from sleeping constitutes actionable nuisance
Court orders
#- 1.Temporary injunction restraining the respondent, their servants and/or agents from emitting noise pollution in any way interfering with the applicant's right to a healthy and clean environment, pending the hearing and determination of the main suit
- 2.Temporary injunction restraining the respondent from exceeding the maximum permissible noise level for Zone D, being 55 decibels during the day and 35 decibels at night, as provided by the Environmental Management and Co-ordination (Noise and Excessive Vibrations Pollution) (Control) Regulations, pending the hearing and determination of the main suit
- 3.Temporary injunction restraining the respondent from exceeding excessive vibrations beyond the set 30 metres' distance from the source of sound as stipulated in the said Regulations, pending the hearing and determination of the main suit
- 4.The OCS, Parklands Police Station ordered to implement the orders restraining the respondent from emitting noise pollution
- 5.Costs of the application 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, "Aggarwal v Mint Shack Limited t/a Barrels and Stools Lounge (Environment & Land Case 193 of 2023) [2024] KEELC 336 (KLR)", Case Analysis (2024). Application dated 26/05/2023 in a pending suit (Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/336/eng@2024-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.