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ELCPartially AllowedConstitutional Petition dated 30.5.2023 (Meru)· [2024] KEELC 6063 (KLR)

Kindiki v Christian Foundation Fellowship Church Mpakone through its Registered Trustees & 5 others (Environment & Land Petition E012 of 2023) [2024] KEELC 6063 (KLR)

Environment and Land Court of Kenya
18 September 2024
15,233 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~61 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a noisy Meru church to stop unpermitted noise and forced county and NEMA officials to regulate it within three weeks.

What this practically means

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Executive summary

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The petitioner, a professor residing in Kaaga, Meru County, petitioned against a church and its pastor (1st and 2nd respondents) for emitting excessive noise from daily fellowship sessions amplified by sound equipment, alleging violation of his right to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. He also sued the County Government of Meru, NEMA and state officers for failing to act on his complaints. The 1st and 2nd respondents denied the claims, asserting their freedom of worship and alleging malice; the 3rd respondent raised a preliminary objection on exhaustion and lack of cause of action. The court framed six issues and, after viva voce evidence, held that the petition met the constitutional threshold and that the exhaustion doctrine did not bar it, since the state respondents gave no evidence of efficacious internal mechanisms and constitutional violations fall outside the NET and PLUPA liaison committee's jurisdiction. Relying on the unchallenged county environment officer's report showing a possibility of excessive noise from an iron-sheet structure without soundproofing, and the respondents' admissions that no building permits or NEMA approvals were obtained, the court found the 1st and 2nd respondents in breach of Articles 42, 69 and 70, and the 3rd and 4th respondents liable for dereliction of their constitutional and statutory duties. The court issued a permanent injunction and a structural interdict compelling the county environment department to investigate, measure and enforce noise compliance within three weeks, with a report back to court. Compensatory damages were refused for lack of evidence, and there was no order as to costs.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru constitutional threshold

Holding

The petition substantially complied with procedural and substantive law; the respondents responded without seeking better particulars

Reasoning

Applying Anarita Karimi Njeru and Mumo Matemu, the court held pleadings must specify the right infringed, the manner of infringement and the link between right and aggrieved party. The petition identified Articles 42, 69 and 70, the noise nuisance, and the reliefs; respondents answered without demanding particulars, so no prejudice arose.

p. 13
02

Whether the petitioner should have exhausted internal dispute mechanisms under the EMCA Noise Regulations or PLUPA liaison committee

Holding

Non-exhaustion doctrine did not bar the petition; the respondents led no evidence of any efficacious internal mechanism, and constitutional violations fall outside those forums

Reasoning

The court distinguished Kibos Distillers, holding that where a state organ has derelicted its duties it is estopped from invoking non-exhaustion, and that the NET and PLUPA liaison committee have no jurisdiction over constitutional violations. Neither the 3rd nor 4th respondent demonstrated any remedial, pending or parallel proceedings.

p. 15
03

Whether the 1st and 2nd respondents violated the petitioner's right to a clean and healthy environment

Holding

Yes - the church emitted excessive noise without soundproofing, permits or approvals, breaching Articles 42, 69 and 70

Reasoning

The undisputed county environment officer's report (D. Exh No. 4/P. Exh No. 3) found a possibility of excessive noise from an iron-sheet structure with no soundproofing. DW 1 admitted no building permits or NEMA approvals were obtained. Under Article 70(3) no proof of damage was required, and the nuisance was continuing.

p. 25
04

Whether the 3rd to 6th respondents abdicated their constitutional and statutory duties

Holding

Yes - they failed to enforce compliance, issue stop, restoration or enforcement orders, or measure noise levels despite the report and complaints

Reasoning

The 3rd and 4th respondents filed no replying affidavit or evidence, only grounds of opposition and submissions. The county government had Fourth Schedule duties over noise control and planning; NEMA had duties under Sections 9 and 108-109 EMCA to issue restoration orders. Their inaction made them liable for the continuing breach.

p. 21
05

What constitutional reliefs were appropriate

Holding

Declarations, a permanent injunction and a structural interdict (mandamus-type order) with post-judgment supervision, but no damages

Reasoning

Guided by Mitubell Welfare Society on structural interdicts and Gitobu Imanyara that constitutional remedies primarily vindicate rights rather than compensate, the court issued a permanent injunction and a three-week compliance order with a report furnished back to court, declining damages for want of evidential justification.

p. 24

Legal principles established

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  • A duty bearer that is a state organ with dereliction of its constitutional duties is estopped from invoking the non-exhaustion doctrine against an aggrieved party enforcing Bill of Rights
  • Under Article 70(3) of the Constitution a petitioner alleging environmental degradation need not prove loss or damage
  • The availability of an alternative remedy is not a bar where constitutional violations are alleged and no efficacious alternative forum exists

Court orders

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  1. 1.A declaration that the 1st and 2nd respondents breached the petitioner's right to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution
  2. 2.A permanent injunction restraining the 1st and 2nd respondents from interfering with the petitioner's right to a clean and healthy environment in the absence of any noise permits by the lead agencies in the parcel of land next to the petitioner's homestead
  3. 3.An order compelling the chief officer in charge of the Department of Environment Natural Resources and Climate Change of the 3rd and 4th respondents to investigate, regulate, measure and permit noise arising from the church premises, issue and enforce any stop or discontinuance of nuisance orders within three weeks and furnish the report to the court for post-judgment directives
  4. 4.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 19, 20, 21, 22, 23, 24, 258, 42, 47, 69, 70, 176, 185(2), 186(1), 187(2), Fourth Schedule, Part II Clause 3 of Sixth Schedule
  • Environmental Management and Coordination ActSections 2, 3, 4, 5, 9, 31, 32, 33, 58, 71, 100, 101, 102, 103, 108, 109, 117, 125, 129, 142
  • EMCA (Noise and Excessive Vibrations Pollution Control) Regulations 2009Regulations 3, 5, 6, 25, 26, 9(3), First Schedule
  • Physical and Land Use Planning Act 2019Sections 4, 13, 31, 32, 33, 61(3)-(4), 76, 78
  • Environment and Land Court ActSections 4(1), 13(1)
  • Evidence ActSections 2, 33(2), 35, 65, 97(1), 100, 107-111, 117, 136
  • Fair Administrative Action ActSection 9(4)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules)Rules 10, 20(4)-(5), 23, 28(9), 29
  • Civil Procedure RulesOrder 18 Rule 2
  • Energy ActSections 10 and 36

Cases cited (66)

  • Annarita Karimi Njeru vs Republic
    (1976–1980) KLR
  • Trusted Society of Human Rights Alliance vs A.G. & others
    (2012) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Elizabeth Kurer Heier & another vs County Government of Kilifi & others
    (2020) eKLR
  • Adrian Kamotho Njenga vs Council of Governors and others
    (2020) eKLR
  • Pastor Jesse vs A.G.
    Petition No. 683 of 2009
  • Kibos Distillers Ltd & 4 others vs Benson Ambuti Adega & others
    (2020) eKLR
  • Sohail Regency Management Ltd vs Dejavu Coco Glam Nail & Tipsy Corner & others
    (2022) eKLR
  • Isaiah Ondiba Bitange & others vs Institute of Engineers of Kenya & another
    (2017) eKLR
  • Kilimani Project Foundation vs B Concept Ltd t/a B Club NRB & others
    (2018) eKLR
  • Odongo & others vs Mndugu t/a Holistic Mission for All Nations Kiembeni Worship Sanctuary & others
    (2022) KEELC 137 (KLR)
  • Gichu vs Obuya Otieno Ritzau t/a Bamburi Community High School & others
    (2023) KELC 1922 (KLR)
  • Kalu vs Mudzombya & others
    E & L Petition (KLR)
  • Castly Boniface S. Katana & 119 others vs DG NEMA & others
    (2020) eKLR
  • Speaker of National Assembly vs Karume
    Civil Application 92 of 1992 (1993) KECA 42 (KLR)
  • Kenya Ports Authority vs William Odhiambo Ramogi & others
    (2019) eKLR
  • Nzomo vs Ontine Real Estate Ltd & others
    E & L Petition E004 of 2023 (2024) KEELC 1522 (KLR)
  • Abidha Nicholus vs The AG & others
    (2023) eKLR
  • Nicholas vs AG & others National Environment Complaints Committee & others
    Petition E007 of 2023 (2023) KESC 113 (KLR)
  • John Florence Maritime Service Ltd & another vs C.S for Transport & Infrastructure & others
    (2019) eKLR
  • Orata International Ltd vs D.G NEMA
    (2019) eKLR
  • Ochieng Christine J Borbor & others vs NEMA
    (2022) KEELC 3947 (KLR)
  • NEMA vs Overlook Management Ltd & others
    (2019) eKLR
  • KCN Kasinga vs David Kiplagat Kirui & others
    (2015) eKLR
  • West Kenya Sugar Co. Ltd vs Busia Sugar Industries Ltd & others
    (2017) eKLR
  • NGOs Coordination Board vs E.G & others, Katiba Institute (Amicus Curiae)
    Petition 16 of 2019 (2023) KESC 17 (KLR)
  • Albert Chaurembo Mumbo & others vs Maurice Munyao & others
    S.C Petition No. 3 of 2016 (2019) eKLR
  • Kenya Revenue Authority & others vs Darasa Investments Ltd
    (2018) eKLR
  • Cortec Mining (K) Ltd vs C.S Ministry of Mining and others
    (2017) eKLR
  • KRA & others vs Keroche Industries Ltd
    C.A No. 2 of 2018
  • James Kanyitta Nderitu vs A.G. & another
    (2019) eKLR
  • Musembi & 10 others vs Moi Educational Centre Co. Ltd and others
    Petition 2 of 2018 (2021) KESC 50 (KLR)
  • Karl Wehner Claasen vs Commissioner of Land & others
    (2019) eKLR
  • AG & another vs Andrew Miano Githinji & another
    (2016) eKLR
  • Avenue Car Hire & another vs Slipha Wanjiru Muthengu
    C.A No. 302 of 1997
  • Muchami Mugeni vs Elizabeth Wanjugu Mungara & another
    C.A No. 141 of 1998
  • DT Moi vs Mwangi Stephen Murithi & another
    (2014) eKLR
  • Chebii & others vs SBI International Holdings AG K & another
    (2024) KEELC 3294 (KLR)
  • Thuku Kirori & others vs County Government of Murang'a
    (2014) eKLR
  • NEMA versus K.M.
    (2023) KECA 775 (KLR)
  • Martin Osano Rabera & another vs Municipal Council Nakuru & others
    (2018) eKLR
  • Leonard Otieno vs Airtel (K) Ltd
    (2018) eKLR
  • Isaya Luyari Odando & another Registered oficial of Ufanisi Centre vs NEMA & others
    (2021) KEELC 2235 (KLR)
  • John Chamia Nganga vs A.G. & another
    (2019) eKLR
  • John Mutunga Waititu vs China Wuyi (K) Co. Ltd
    (2018) eKLR
  • Africa Centre for Rights and Governance & others vs Municipal Council of Naivasha
    (2017) eKLR
  • Charles Lekuyen Nabori & others vs A.G. & others
    (2008) eKLR
  • Pastor James Jessie Gitahi & others vs AG
  • Republic vs Nairobi City County Alcoholic Drinks Control and Licensing Board ex parte Space House Bar & Grill Ltd
    J.R. Misc Application No. 613 of 2016
  • Republic vs A.G. & another ex parte Waswa & others
    (2005) KLR 280
  • CMC Aviation Ltd vs Crusair Ltd
    (1987) KLR 103
  • Charterhouse Bank Ltd (under Statutory Management) vs Frank N. Kamau
    (2018) eKLR
  • Daniel Kibet Mutai & others vs AG
    (2016) eKLR
  • Phillip Tirop Kitui vs AG
    (2018) eKLR
  • Peter O Nyakundi & others vs Principal Secretary State Department of Planning & another
    (2016) eKLR
  • Prof. Olaka Onyango & others vs Hon. AG
    Petition 8 of 2014
  • Eliud Nyauma Omwoyo & others vs Kenyatta University & others
    (2016) eKLR
  • Raila Amolo Odinga & another vs IEBC & others
    (2017) eKLR
  • CCK vs Royal Media Services Ltd & another
    (2014) eKLR
  • David Ndii & others vs AG & others
    (2021) eKLR
  • KPA vs Mitubell Welfare Society & others
    (2016) eKLR
  • Mitubell Welfare Society vs KPA
    (2021) KESC 34 (KLR)
  • Satrose Ayuma & 11 others vs Registered Trustees of Kenya Railways Staff Retirement Pension Scheme & others
    HC NRB Petition 65 of 2010
  • Kepha Omondi Onjaro & others vs A.G. & others
    NRB HCC Petition 239 of 2014
  • Gitobu Imanyara & others vs AG
    (2016) eKLR
  • Muratetu & Another vs Republic
    (2017) KESC 2 (KLR)
Jurisdiction invoked
Articles 22, 23, 42, 69 & 70 of the Constitution as read with Sections 101, 102, 103 and 13 of the Environmental Management and Coordination Act and Section 13 of the ELC Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kindiki v Christian Foundation Fellowship Church Mpakone through its Registered Trustees & 5 others (Environment & Land Petition E012 of 2023) [2024] KEELC 6063 (KLR)", Case Analysis (2024). Constitutional Petition dated 30.5.2023 (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6063/eng@2024-09-18

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