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ELCStruck OutNot stated in judgment (petition filed 29/9/2023)· [2024] KEELC 5465 (KLR)

Diani Properties Limited t/a Diani Sea Lodge v University of Nairobi-Moana Research Station for Marine Studies & 2 others (Petition E002 of 2023) [2024] KEELC 5465 (KLR)

Environment and Land Court
23 July 2024
ADA.E Dena
1,670 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A hotel owner's noise pollution petition was struck out because Kenya's courts require you to first complain to NEMA before suing over environmental harm.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of Kwale/Diani Beach/126 and 127 operating the Diani Sea Lodge hotel, petitioned the Environment and Land Court on 29 September 2023 alleging that the 1st Respondent's neighbouring property hosted entertainment events with loud music, disrupting hotel guests and violating the right to a clean and healthy environment. The Petitioner sought discontinuance of the noise pollution and orders compelling the 2nd and 3rd Respondents to prosecute the 1st Respondent for breach of noise regulations. The 3rd Respondent (NEMA) raised a preliminary objection contending that the Petitioner had not exhausted the redress mechanisms under the Environmental Management and Coordination Act and the Noise and Excessive Vibration Pollution (Control) Regulations 2009, and that no improvement notice had issued under regulation 25(1), rendering the petition premature. In a ruling delivered on 23 July 2024, A.E Dena J held that the objection was a pure point of law arising from the pleadings and therefore valid. On the merits of the objection, the court read the statutory scheme as requiring an aggrieved party to first lodge a complaint with NEMA and, if dissatisfied, appeal to the National Environmental Tribunal. Applying the exhaustion doctrine as articulated in Cheperenger, Karata Ernest, Sound Equipment, Hulbhai Gedi Abdille and Ramogi, the court found the Petitioner had bypassed available remedies and declined to usurp the Tribunal's mandate. The preliminary objection was upheld, the petition was struck out, with no orders as to costs.

Key legal issues

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01

Validity of the preliminary objection

Holding

The objection was valid as it raised pure points of law arising from the pleadings

Reasoning

Applying the Cheperenger and Karata Ernest principles, the court found that the objection concerned whether the ELC had jurisdiction given the statutory complaint mechanism under EMCA and the Noise Regulations. Since it turned on provisions of law emerging from the pleadings, and not on facts requiring ascertainment, it satisfied the requirements of a sustainable preliminary objection.

p. 3
02

Exhaustion of administrative remedies

Holding

The petition was premature as the Petitioner had not first lodged a complaint with NEMA under the Noise Regulations before invoking the court's jurisdiction

Reasoning

The court read the statutory scheme as requiring an aggrieved party to first lodge a complaint with NEMA, and only if dissatisfied, appeal to the National Environmental Tribunal. Guided by the exhaustion doctrine in Sound Equipment, Hulbhai Gedi Abdille and Ramogi, the court declined to usurp the Tribunal's powers and found the petition prematurely filed.

p. 3

Legal principles established

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  • A preliminary objection must be based on pure points of law arising from the pleadings and cannot succeed if any fact has to be ascertained
  • Where a statutory dispute-resolution mechanism exists, a party must exhaust it before invoking the court's jurisdiction

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The petition is struck out
  3. 3.No orders as to costs
Jurisdiction invoked
Constitutional petition on right to a clean and healthy environment (ELC jurisdiction); court did not cite the specific provision

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, "Diani Properties Limited t/a Diani Sea Lodge v University of Nairobi-Moana Research Station for Marine Studies & 2 others (Petition E002 of 2023) [2024] KEELC 5465 (KLR)", Case Analysis (2024). Not stated in judgment (petition filed 29/9/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5465/eng@2024-07-23

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