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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner established a prima facie case
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
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.
Whether the Petitioner would suffer irreparable injury not compensable by damages
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
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.
Where the balance of convenience lies
The balance of convenience tilts towards the Petitioner, favouring maintenance of the status quo
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.
Legal principles established
#- 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
#- 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.Costs to abide the outcome of the Petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.