Chemitei & 2 others v Murgor t/a Coco Grill & 3 others (Environment & Land Petition E006 of 2024) [2025] KEELC 4338 (KLR)
The bottom line
#Residents lost their case against a noisy Eldoret bar because they brought no expert noise measurements or zoning proof to court.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of remedies / prematurity of petition
The petition was not premature; Article 22(1) and section 3(3) EMCA permit direct court proceedings for violation of fundamental rights.
The 1st respondent argued petitioners should have first gone to the Public Complaints Committee and the National Environment Tribunal under EMCA. The court held that because the petition was anchored on violation of fundamental rights under Articles 26(1) and 42(1), nothing precluded the petitioners from instituting court proceedings directly. Jurisdiction was therefore properly vested in the court.
Threshold of a proper constitutional petition
The petition met the Anarita Karimi Njeru threshold as it identified the rights infringed, by whom and how.
The court applied Anarita Karimi Njeru, requiring a petitioner to set out with reasonable precision the complaint, the constitutional provisions said to be infringed, and the manner of infringement. The petitioners identified Articles 26(1) and 42(1), named the respondents' acts and omissions and the efforts made to resolve complaints, hence the threshold was satisfied.
Whether the area is a residential area under section 14(1) of the Uasin Gishu County Alcoholic Drinks Control Act, 2014
The petitioners failed to prove that Coco Grill operates in a residential area; photographs alone were insufficient.
Section 14(1) prohibits licensing of alcohol sale in residential areas or near institutions of basic education. The court found photographs produced showed only buildings without proving zoning. A physical planner's report, certified map or surveyor's report, or a locus visit, would have sufficed; none was provided, so the area's residential character was not established.
Whether noise pollution was proved to the required standard
No; without noise measurements by an authorized lead agency or expert, violation of Article 42 was not proved.
The Noise Regulations require measurements to be taken by a relevant lead agency or a person duly authorized by the Authority knowledgeable in use of measuring equipment. Although Regulation 3(2) provides other determinants (time of day, proximity to residential area, recurrence, intensity, electronic enhancement), the petitioners produced no measurement report, map, RIM or inspection report, so the court could not ascertain whether permissible noise levels were exceeded.
Entitlement to reliefs and burden of proof
Petitioners, having failed to prove their claim, are not entitled to the reliefs sought.
Sections 107 and 108 of the Evidence Act place the burden of proof on the party asserting. The effect of the orders sought was closure of the 1st respondent's business and revocation of licences - drastic orders which require sufficient grounds, justification and evidence. Since the claim on noise pollution was not proved to the required standard, the reliefs could not issue.
Legal principles established
#- A party alleging violation of the right to a clean and healthy environment via noise pollution may file a constitutional petition under Article 22(1) and section 3(3) EMCA without first exhausting EMCA internal dispute mechanisms.
- Proof of noise pollution requires measurement by a duly authorized lead agency or expert; absent such measurement the court cannot determine whether noise exceeded permissible levels.
- A petition must meet the Anarita Karimi Njeru threshold of setting out with precision the right infringed and the manner of infringement.
- No licence to sell alcoholic drinks shall be granted in any residential area or institution of basic education.
- Drastic orders such as closure of a business require sufficient grounds, justification and evidence before the court.
- Costs follow the event but the court retains discretion, particularly in public interest claims.
Court orders
#- 1.The Petition dated 18th July, 2024 is dismissed with no orders as to costs
- Jurisdiction invoked
- Article 22(1) of the Constitution as read with section 3(3) of the Environment Management and Coordination Act (EMCA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chemitei & 2 others v Murgor t/a Coco Grill & 3 others (Environment & Land Petition E006 of 2024) [2025] KEELC 4338 (KLR)", Case Analysis (2025). Constitutional Petition E005 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4338/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.