Jaygee Limited & another v Githome t/a The Wine & Bottle Bar & Grill & 2 others (Environment and Land Case 5 of 2023) [2024] KEELC 558 (KLR)

The 1st Defendant argued the dispute lies first with the National Environment Tribunal under Section 129(1) EMCA. The court relied on the Supreme Court decision in Abidha Nicholus v Attorney General, noting Section 13(2) of the ELC Act grants original jurisdiction over environmental matters and cannot preclude redress for denial, violation or threat to environmental rights under Articles 42, 69 and 70. Since no appealable decision existed and the complaint is a constitutional violation, the court retained jurisdiction.

The Defendants contended the Plaintiffs lacked authority, citing absence of a company resolution and letter of authority. The court held that speaking for and protecting the environment does not require authorization from any organization, and that environmental violations touch on private and natural rights. Article 22(1) of the Constitution permits every person to claim that a Bill of Rights right has been denied, violated or infringed, so the Plaintiffs could sue for themselves, their tenants, neighbours and the environment.

Relying on Order 1 Rule 8 of the Civil Procedure Rules and the Court of Appeal decision in Yiapas Ole Seese v Sakita Ole Narok, the court found that all persons with a similar cause of action should be notified so they may elect to join as co-plaintiffs or defendants. The Plaintiffs sued for their benefit and that of tenants and residents of the neighbourhood, and allowing a public notice would ensure a conclusive determination of the issues.

Applying Giella v Cassman Brown, the court found the Plaintiffs established ownership of the Westwood building and produced notices from the 2nd and 3rd Defendants confirming noise complaints. However, the authenticity of the 1st Defendant's licences could not be determined at the interlocutory stage, no evidence showed irreversible harm, and damages would adequately compensate the inconvenience. Absent an expert report on noise levels, the balance of convenience tilted to the 1st Defendant.