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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 23 (KLR)

Eagle Palace Hotel v Chilis Tavern Limited & another (Environment & Land Case E065 of 2024) [2025] KEELC 23 (KLR)

Environment and Land Court
16 January 2025
1,788 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered a Nakuru nightclub to install noise mitigation measures, confirming businesses must prove their noise is harmless, not neighbours proving harm.

What this practically means

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Executive summary

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Eagle Palace Hotel, a hotel operator on Commercial Street, Nakuru, moved against Chilis Tavern Ltd, which operates an adjacent club/discotheque, and the County Government of Nakuru as licensing and regulatory authority. The applicant sought interim orders compelling the respondents to install noise mitigation measures (including lowering music volume or soundproofing), a declaration of its right to a clean, safe and healthy environment under the Constitution, and costs. It relied on Articles 42 and 70 of the Constitution, section 3 of EMCA and the Noise and Excessive Vibration Pollution (Control) Regulations, 2009, alleging that loud music exceeding permissible levels caused guests to cancel bookings and check out prematurely, and that the County Government had failed in its devolved regulatory mandate over noise pollution under the Fourth Schedule. The 1st respondent, through the affidavit of its proprietor Daniel Moge Maina, admitted noise emanated from its premises but contended that mitigation measures recommended by the County Government were in place; however, it did not specify or annex the measures and ignored court orders of 6 November 2024 to file a report. The 2nd respondent filed no replying affidavit. The court applied the Giella v Cassman Brown conditions, found a prima facie case and irreparable harm, held that the precautionary principle applies and reverses the burden of proof onto the alleged polluter, and found the balance of convenience favoured the applicant. The court ordered that pending the hearing and determination of the suit, the 1st and 2nd respondents install noise mitigation measures and file an expert report within 15 days, and scheduled the hearing for 27 February 2025. No costs order was made; the substantive claim remains pending.

Key legal issues

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01

Whether the applicant established a prima facie case of noise pollution justifying interim relief

Holding

Yes; the applicant proved on a prima facie basis that noise escaping from the 1st respondent's premises caused discomfort to its hotel visitors, and the damage was irreparable as visitors checked out.

Reasoning

The applicant and 1st respondent are neighbours in a mixed setting on Commercial Street, Nakuru. The 1st respondent admitted noise emanated from its premises but claimed mitigation measures were in place; however it did not specify the measures nor annex the report DMM3, and it failed to comply with prior court orders to table a report. The 2nd respondent filed no replying affidavit. Irreparable harm was shown by premature guest check-outs.

p. 4
02

Whether the precautionary principle applies and shifts the burden of proof

Holding

Yes; the court applied the precautionary principle to pre-empt a violation of the right to a clean and healthy environment, reversing the burden of proof onto the alleged polluter.

Reasoning

The court held that the traditional requirement that a claimant prove potential harm is reversed under the precautionary principle: the entity proposing the activity must prove it is not harmful. This supported issuing a conservatory order pending trial to protect the applicant's constitutional right to a clean and healthy environment and prevent further damage to its business.

p. 4
03

Balance of convenience

Holding

The balance of convenience favoured granting the order, since the applicant would be inconvenienced by refusal whereas the 1st respondent claimed to have already implemented noise reduction measures.

Reasoning

The court found that the applicant would suffer if no order issued, but the 1st respondent would not be prejudiced because it had alleged that noise reduction measures were already in place. Accordingly, an interim order compelling installation of noise mitigation measures and filing of an expert report within 15 days was granted against both respondents.

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Legal principles established

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  • The precautionary principle applies in environmental claims and reverses the traditional burden of proof, requiring the person proposing or carrying out the allegedly harmful activity to prove it is not harmful
  • The settled conditions for the grant of an interlocutory injunction are a prima facie case with a probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience (Giella v Cassman Brown)

Court orders

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  1. 1.Pending the hearing and determination of the suit, the 1st and 2nd respondents (defendants) to install noise mitigation measures including reducing the volume of music or installing sound proofing within the establishment
  2. 2.An expert report to be filed within the next 15 days
  3. 3.Matter scheduled for hearing on February 27, 2025 at 8.30 a.m.
Jurisdiction invoked
Articles 42 and 70 of the Constitution of Kenya, 2010, read with section 3 of the Environmental Management and Co-ordination Act, 1999 and the Fourth Schedule to 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, "Eagle Palace Hotel v Chilis Tavern Limited & another (Environment & Land Case E065 of 2024) [2025] KEELC 23 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/23/eng@2025-01-16

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