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ELCDismissed· [2024] KEELC 5642 (KLR)

Rotich & 2 others (Riverside Westend Neighbourhood Association, Westlands) v Director of Trade Licensing, Nairobi City County Government & 2 others; Maina & another t/a Ibury Lounge (Contemnor) (Environment and Land Constitutional Petition E017 of 2024) [2024] KEELC 5642 (KLR)

Environment and Land Court
25 July 2024
4,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed residents' contempt case against iBury Lounge because they couldn't prove the lounge willfully disobeyed a court order to stop operating.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (A. Omollo, J) determined two applications arising from an interim conservatory order issued on 29th May, 2024 by Mogeni J, directing the 3rd Respondent, iBury Lounge, to cease operations of its club, bar, alcohol dispensing and music playing at premises along Sri Aurobindo Road, Lavington, pending inter partes hearing. The Applicants, members of a residential neighbourhood, sought committal to civil jail, summons, sequestration of property and indemnity costs against Eric Ng'ang'a Maina and John Kimanzi Musyoka, the cited contemnors, for allegedly disobeying that order. The contemnors filed a preliminary objection contending the Court lacked jurisdiction at first instance because alternative statutory forums exist under the Physical and Land Use Planning Act, the Alcoholic Drinks Control Act and the Environmental Management & Coordination Act, invoking the exhaustion doctrine. The Court dismissed the preliminary objection, holding that the petition genuinely raises infringement of the Article 42 right to a clean and healthy environment, which only this Court can determine, and that requiring one cause of action to be split among four bodies would defeat constitutional values and Article 159(2)(b). On contempt, the Court accepted that service on the Respondent's manager was proved and undenied, but found the Applicants failed to prove the specific willful disobedience to the heightened standard in Mutitika v Baharini Farm: the registration certificate and social media printouts did not demonstrate continued operation post-order. Both the contempt motion and the preliminary objection were dismissed, with costs of both ordered in the cause.

Key legal issues

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01

Whether the Court has jurisdiction at first instance notwithstanding statutory alternative forums

Holding

The preliminary objection fails: the petition alleges infringement of Article 42 rights, which only this Court can determine, and the exhaustion requirement would not serve constitutional values where the grievance would have to be split among four different bodies.

Reasoning

Sections 13(1) and 13(3) of the Environment and Land Court Act confer original jurisdiction over environmental disputes and applications for redress of threats to a clean and healthy environment under Articles 42, 69 and 70. Exceptions to the exhaustion doctrine apply where fundamental rights are genuinely at stake, where the statutory forum lacks jurisdiction over rights violations under Article 23, and where fragmentation of one cause of action among multiple forums would delay justice contrary to Article 159(2)(b).

p. 7
02

Whether the Applicants proved contempt of the interim conservatory orders

Holding

No. Service on the 3rd Respondent's manager was proved and not denied, but the Applicants did not prove the specific willful disobedience to the heightened standard required.

Reasoning

The registration certificate annexed did not evidence operation of the bar or playing of music. Social media printouts referred to future or generic events but no recordings, live pictures or expert report showed that after the order the 3rd Respondent played music or sold alcohol at the premises. The supporting affidavits were statements without documentary corroboration, so the standard of proof, higher than balance of probabilities given the liberty implications, was not met.

p. 10

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • The applicant must prove knowledge of the order and willful disobedience; personal service is no longer mandatory but awareness must be proved
  • An applicant bears the burden (section 107 Evidence Act) of demonstrating the specific activities constituting willful disobedience of the order
  • The exhaustion doctrine does not bar a suit primarily seeking enforcement of fundamental rights that are not mere bootstraps

Court orders

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  1. 1.Preliminary objection dated 11th June, 2024 dismissed for lack of merit
  2. 2.Notice of Motion dated 6th June, 2024 (contempt application) dismissed for lack of merit
  3. 3.Costs of both ordered in the cause

Authorities

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Legislation

  • Judicature Actsection 5
  • Civil Procedure Actsection 3A
  • Civil Procedure (Amendment No. 2) Rules, 2015 (Supreme Court of England)Rule 81.10
  • Constitution of Kenya, 2010Articles 42, 50(2), 69, 70, 159, 162(2)(b), 23
  • Physical and Land Use Planning Actsections 76, 78
  • Alcoholic Drinks Control Actsection 8
  • Environmental Management & Coordination Actsections 31, 32(a), 125
  • Environment and Land Court Actsection 13
  • Evidence Actsection 107

Cases cited (15)

  • Kenya Human Rights Commission v Attorney General & Another
    [2018] EKLR
  • MNN v JMM
    [2022] EKLR
  • Amani Residents' Association/mirema v Mark Senetu T/a Cocorico Wines & others
    [2024] EKLR
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229, 234
  • Geofrey Muthiga Kabiru v Samuel Munga Henry & 1756 Others
    [2015] EKLR
  • In The Matter Of Interim Independent Electoral Commission
    [2011] eKLR, Constitutional Application No. 2 of 2011
  • William Odhiambo Ramogi & 3 Others v A. G & 4 Others
    [2020] eKLR
  • R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA)
  • Shikara Limited Case
  • Mofiat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others
  • Night Rose Cosmetics [1972] Ltd v Nairobi County Government & 2 others
    [2018] eKLR
  • Kyoga Hauliers Limited v Long Distance Truck Drivers & Allied Workers Union
    [2015] EKLR
  • Stewart Robertson v Her Majesty's Advocate
    [2007] HCAC 63
  • Nyamogo & Another v Kenya Posts And Telecommunications Corporation
    [1994] KLR 141
  • Kenya Tea Growers Association v Francis Atwoli & Others
    [2012] EKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act

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, "Rotich & 2 others (Riverside Westend Neighbourhood Association, Westlands) v Director of Trade Licensing, Nairobi City County Government & 2 others; Maina & another t/a Ibury Lounge (Contemnor) (Environment and Land Constitutional Petition E017 of 2024) [2024] KEELC 5642 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5642/eng@2024-07-25

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