Exeter Pearl Apartments Management Ltd v Bar Next Door Ventures Limited t/a the Bar Next Door Bar & Grill & 6 others (Constitutional Petition E012 of 2024) [2025] KEELC 4115 (KLR)
The bottom line
#A Nairobi court dismissed a bid to shut down three bars over noise because the complainant blocked the NEMA expert from measuring noise at the actual premises.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court is seized of the requisite jurisdiction to entertain and adjudicate upon the Petition and by extension the application
- 2.Whether the Applicant has established a basis for the grant of the conservatory orders or otherwise
Key legal issues
#Jurisdiction of the ELC and the doctrine of exhaustion
The court has jurisdiction; the preliminary objection was misconceived. Section 129 EMCA is only activated by a decision of NEMA, and reliefs such as conservatory orders could not be granted by NEMA in any event.
The claim concerns breach of the right to a clean and healthy environment under Article 42, enforceable under Article 70. The ELC's jurisdiction is founded on Articles 69 and 70, Section 3(3) EMCA and Section 13(3) of the ELC Act. Section 129 EMCA applies only where NEMA has made an aggrieving decision, which is absent here. The exhaustion doctrine is not absolute; the Supreme Court in Nicholus requires a nuanced approach safeguarding access to justice.
Threshold for conservatory orders
The Applicant failed to meet the threshold; the application was dismissed.
The Applicant bore the burden of showing via expert evidence, as prescribed under Section 6 of the Noise Regulations, that emitted noise exceeded permissible levels. No expert report was filed with the Petition, and the Applicant denied the NEMA-designated lead expert access to the locus in quo, with the consequence that measurements were taken from a different point. The court found the conduct created a basis for adverse inference and questioned the bona fides of the complaint.
Legal principles established
#- The ELC retains original jurisdiction over environmental rights claims unless jurisdiction is specifically and expressly ousted in a constitutionally compliant manner; the exhaustion doctrine is not absolute and requires a nuanced, case-by-case assessment
- An applicant for conservatory orders must demonstrate a prima facie case with a likelihood of success, prejudice, and approach the court with clean hands
Court orders
#- 1.The Application dated the 28th February 2024 be and is hereby dismissed.
- 2.Costs of the Application shall abide the outcome of the Petition.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 42, 69 and 70 of the Constitution 2010; Section 3(3) EMCA; Section 13(3) Environment and Land Court Act, 2011
Relief refused
#Conservatory orders prohibiting the 1st, 2nd and 3rd Respondents from operating The Bar Next Door, The Kettlehouse Bar & Grill and Samaki Samaki Seafood And Jazz
Applicant failed to demonstrate a prima facie case; expert access to the locus in quo was denied, creating a basis for adverse inference
Costs
Costs of the Application shall abide the outcome of the Petition.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises, the final orders of the court are as hereunder; i. The Application dated the 28th February 2024 be and is hereby dismissed. ii. Costs of the Application shall abide the outcome of the Petition.
I am not persuaded by the contention raised by the 4th, 6th and 7th Respondents that this court is not seized of the requisite jurisdiction to entertain and adjudicate upon the subject petition and by extension the application.
the provisions of Section 129 of the EMCA, which has been referenced by the 4th, 6th and 7th Respondents only comes into play where NEMA [5th Respondent] has made a decision which has aggrieved a party.
the doctrine itself is not absolute. There are instances where the statutory mechanism provided for may be less effective and or efficacious.
the mere fact that the court has declined to grant the application does not provide the 1st, 2nd and 3rd Respondents with a blank cheque to emit noise beyond the prescribed limit.
the conduct of the Applicant creates a basis for adverse inference.
Issues in the judgment
#Case/petition number not disclosed anywhere in the judgment text
Consent clause contains an apparent typographical error in the date ('28/02/204')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- AOO & 6 others v Trustee, Nakuru Golf Club & 3 others (Environment and Land Petition E013 of 2025) [2026] KEELC 4658 (KLR)[2026] KEELC 4658 (KLR)22 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Exeter Pearl Apartments Management Ltd v Bar Next Door Ventures Limited t/a the Bar Next Door Bar & Grill & 6 others (Constitutional Petition E012 of 2024) [2025] KEELC 4115 (KLR)", Case Analysis (2025). Not stated in the judgment text (petition number not disclosed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4115/eng@2025-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.