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ELCAllowedNot stated in the judgment (Notice of Motion dated 11/9/2023)· [2024] KEELC 4530 (KLR)

Sunlodges Kenya Limited (Suing on its own behalf and on behalf of the residents of Diani area Kwale County) v Alliance Development Limited t/a Safari Beach Hotel & 2 others (Environment & Land Petition E001 of 2023) [2024] KEELC 4530 (KLR)

Environment and Land Court
28 May 2024
3,519 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Sunlodges Kenya Limited, operator of an accommodation business adjacent to Safari Beach Hotel in Diani, moved the Environment and Land Court by Notice of Motion dated 11/9/2023 seeking a temporary injunction restraining the 1st Respondent from operating live or streamed music and emitting excessive noise in breach of the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) Regulations. The Applicant alleged harm to its peace-and-tranquillity-based business model, negative client reviews, and illegal structures, and accused the 2nd and 3rd Respondents of regulatory failure. The 1st Respondent opposed, contending the Applicant never complained to the 2nd Respondent, that procuring an expert was premature, that its structures were approved, and that the Giella v Cassman Brown criteria were unmet. The court, A.E Dena J, framed a single issue: whether the criteria for a temporary injunction were met. Applying Giella and Nguruman, the court found a prima facie case on the strength of an environmental noise survey showing noise well above the 55-decibel limit, holding no law bars a privately procured expert report where the regulator fails to act. On irreparable harm, Article 70(3) dispenses with proof of injury, and harm to a referral-dependent business cannot be adequately compensated in damages. The balance of convenience favoured the Petitioner. Persuasive South African and Kenyan authorities on environmental and noise rights reinforced the conclusion. The application was allowed in terms of prayer 3, with costs to abide the outcome of the petition.

Key legal issues

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01

Whether the Petitioner established a prima facie case

Holding

Yes - the environmental noise survey report showed noise from the 1st Respondent's premises far above the permitted 55 decibels, establishing a prima facie case of excessive noise

Reasoning

The court confirmed the lease and adjacency of the premises, and relied on the environmental noise survey conducted between 29/12/2023 and 31/12/2023, which showed noise above the allowed 55-decibel limit. Sections 101-103 of EMCA set out the regulatory framework prohibiting excessive noise. The court rejected the objection that the report did not emanate from the 2nd Respondent, holding no law bars an expert report where the regulator has failed to act on a complaint.

p. 6
02

Whether the Petitioner would suffer irreparable injury not compensable by damages

Holding

Yes - Article 70(3) dispenses with proof of injury, and harm to a referral-based accommodation business from negative reviews cannot adequately be compensated in damages

Reasoning

The court applied Article 70(3), which removes the need to prove loss, and found the noise violated the Petitioner's right to a healthy environment. The referral-dependent nature of the accommodation business means bad reviews could drive away remaining customers. Citing Said Almed v Mannasseh Benga and Aikman v Muchoki, the court held damages cannot be an adequate remedy where the defendant's conduct may be unlawful.

p. 6
03

Where the balance of convenience lies

Holding

The balance of convenience tilts towards the Petitioner, favouring maintenance of the status quo

Reasoning

Relying on Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd, the court weighed the greater harm: continuing noise would cripple the Petitioner's business and violate the right to a clean environment, while the injunction merely preserves the status quo pending full hearing. The court was also persuaded by Majanja J's dictum in Pastor James Jesses Gitahi on the need to regulate noise levels.

p. 7

Legal principles established

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  • There is no legal bar to a complainant procuring an independent NEMA-certified expert noise report where the regulator fails to act on a complaint
  • Under Article 70(3) of the Constitution an applicant for redress for environmental degradation need not prove loss or injury
  • Where the defendant's act may be unlawful, the adequacy of damages need not be considered; a party should not maintain a position gained by flouting the law because it can pay

Court orders

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  1. 1.Temporary order of injunction restraining the 1st Respondent, its agents, assigns, employees, representatives and/or persons claiming through it from further operating live music and/or streaming music and/or emitting high levels of noise and vibrations in its premises known as Safari Beach Hotel within Diani Township in contravention of the Environmental Management and Coordination [Noise and Excessive Vibration Pollution] Regulations 2009, pending hearing and determination of the petition
  2. 2.Costs to abide the outcome of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 42(1)
  • Constitution of Kenya, 2010Article 70(1)-(3)
  • Constitution of Kenya, 2010Article 69
  • Environmental Management and Coordination [Noise and Excessive Vibration Pollution] RegulationsRegulation 3(1), Part 2
  • Environmental Management and Coordination [Noise and Excessive Vibration Pollution] (Control) RegulationsRule 6
  • Environmental Management and Coordination ActSections 101, 102, 103
  • Environment and Land Court Act, 2011Section 13(3)
  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Physical and Land Use Planning Actrequisite permissions
  • Constitution of South AfricaSection 24
  • Constitution of NigeriaSection 20

Cases cited (10)

  • Giella Versus Cassman Brown & Co Ltd
    [1973] EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Limited – Versus - First American Bank of Kenya Limited & 2 others
    (2003) eKLR
  • Trustees for The Time Being of Groundwork Trust & Another Versus Minister of Environmental Afiairs & Others
    Case No 39724/2019
  • University of Pretoria Versus Roger and Others
    [61693] [2019] [2023] ZAGPPHC 1203
  • Said Almed vs. Mannasseh Benga & Another
    [2019] eKLR
  • Aikman vs Muchoki
    (1984) KLR 353
  • Joseph Mbugua Gichanga vs Co-operative of Kenya Ltd
    (2005) eKLR
  • Paul Gitonga Wanjau Vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
  • Pastor James Jesses Gitahi & 202 Others vs Attorney General
    Pet No 683 of 2009
Jurisdiction invoked
Section 13(3) of the Environment and Land Court Act, 2011 read with Articles 42, 69 and 70 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sunlodges Kenya Limited (Suing on its own behalf and on behalf of the residents of Diani area Kwale County) v Alliance Development Limited t/a Safari Beach Hotel & 2 others (Environment & Land Petition E001 of 2023) [2024] KEELC 4530 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 11/9/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4530/eng@2024-05-28

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