Green Lake Investment v Onyango & 2 others t/a Alleyways Beer Garden & 4 others

GERALD ONYONA ONYANGO, BRENDA OTIENO, MELANIE ATIENO ONYANGO AKA MELANIE ATIENO KISERO, JACK KISERO T/A ALLEYWAYS BEER GARDEN ..................................................... 1ST RESPONDENT SAMSON AUMA ........................................................................... 2ND RESPONDENT OLGA AKINYI AUMA ................................................................. 3RD RESPONDENT SAMUEL CAREY FRANCIST AUMA ........................................ 4TH RESPONDENT COUNTY GOVERNMENT OF KISUMU .................................. 5TH RESPONDENT JUDGMENT Background: 1. Green Lake Investment, the petitioner herein, describing itself as a partnership registered as such under the Registration of Business Names Act and the registered proprietor of all that parcel of land known as KISUMU MUNICIPALITY BLOCK 7/357 along Otuoma Street, within Kisumu County, commenced this matter vide the petition dated 28th January, 2022 against Gerald Onyango t/ a Alleyways Bar and Restaurant and the 2nd to 6th Respondents herein. 2. The Petition was subsequently amended pursuant to leave granted on 19/11/2024 and replaced with the Amended Petition dated 25/2/2025, vide which the Petitioner replaced the 1st Respondent with Gerald Onyona Onyango, Brenda Otieno, Melanie Atieno Onyango A.K.A. Melanie Atieno Kisero and Jack Kisero T/a Alleyways Beer Garden. 3. The amended Petition seeks the following relief: 4. a. A declaration that the Respondents have infringed on the Petitioner’s right to a clean and healthy environment as guaranteed in Article 42 of the Constitution. b. An environmental restoration order requiring the 1st to 4th Respondents to restore the environment to the state and condition it was in before March 2020. c. An order of permanent injunction restraining the 1st Respondent, his agents, employees, or any other person claiming through him, from emitting noise from his business known as Alleyways Bar and Restaurant or any such other business that would operate as such and host social events on the land known as Plot No. Kisumu Municipality Block 7/356 or any other land within Kisumu County until such a time when he takes such mitigation measures in compliance with the Environmental Management and Co-ordination Act. d. An order directing the 1st Respondent to remove the grati painted on the 1st Petitioner’s wall within 14 days, failing which the Petitioner removes it and recovers the costs from him. e. General damages. f. Aggravated damages. g. Costs of the petition. The 1st Respondent led the 1st Respondent’s Response to the Amended Petition dated 26/5/2025 sworn by Gerald Onyango, denying the claim in the Amended Petition. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 2

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5. The 3rd Respondent led her Replying Adavit sworn on 18/5/2022. She averred that no plausible cause of action had been raised against her. 6. The rest of the Respondents led no response to the Amended Petition. The Petitioner’s Case: 7. The Petitioner’s case, as contained in the Amended Petition, is that it is the registered proprietor of all that parcel of land known as Kisumu Municipality Block 7/357, located along Otuoma Street, within Kisumu County, where it runs and operates a guest house known as Green Lake Guest House, which oers accommodation facilities, and has rented out the property to several other tenants who carry on commercial business in the same building. 8. That sometime in March 2020 the 1st Respondent set up a bar and restaurant known as Alleyways Beer Garden which is situated along Otuoma Street being on Plot No. Kisumu Municipality Block 7/356 and which shares a common boundary with the Petitioner’s property, whose nature of business involves the making or causing to be made loud, unreasonable, and unusual noise/music every day of the week to entertain its patrons to the detriment of the Petitioner, as it is unable to attract any customers and even if it did, they would never return due to the amount of noise emitted from the 1st Respondent’s establishment. That the said noise is recurrent as the 1st Respondent uses radio, TV and other sound amplifying devices in a loud, annoying and oensive manner such that the noise and vibrations from those devices interfere with the comfort, repose, health and safety of the Petitioner and other members of the general public. 9. That the 1st Respondent painted grati drawn as Alleyways to cover three-quarters of the perimeter wall as part of the advertisement; the 1st Respondent has defaced the said wall, which act amounts to trespass as it was done without the Petitioner’s consultation or approval and has remained deant to the Petitioner’s demand to remove the said grati, which is an interference with the Petitioner’s constitutional right to own property and to enjoy it in quiet possession. 10. That the Petitioner’s returns from its business have dwindled from approximately Kshs.100,000 to Kshs. 40,000 and the Petitioner is unable to reap the benets from the establishment because of the nature of the business carried out by the 1st Respondent. 11. That due to the nature of the business the 1st Respondent set up, it was, for all intents and purposes, a proponent of a project who needed to undertake a full environmental impact study and thereafter prepare and submit a project report to the 5th and 6th Respondents and furnish them with the prescribed information, before commencing and/or nancing its project, and which it failed to do as provided under Section 58, 59 and 60 of the Environmental Management and Co-ordination Act. 12. That although the petitioners lodged a complaint with the City Manager and the Director of Environment of the 3rd Respondent, no action has been undertaken by the 3rd Respondent, thus violating the provisions of articles 35 and 47 of the Constitution which entitle the Petitioner to the right to access the information in the hands of a third party and the right to fair administrative action. 13. That the law under Sections 68 and 69 of the Environment Management and Co-ordination Act places a duty on the 5th and 6th Respondents to regularly carry out environmental audits which would reveal the activities or projects that are likely to have a signicant eect on the environment and to also ensure that the projects undertaken conform to the environmental studies or reports represented by the owners of projects. That in allowing the 1st Respondent to operate and run his business of a bar https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 3

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and restaurant, the 5th and 6th Respondents have failed to exercise their role and duty to ensure that the Petitioner's constitutional rights to a clean and healthy environment under Article 42 are protected. 14. That by failing to share the information requested by the Petitioner, the Respondents have infringed the Petitioner’s right to information as guaranteed under Article 35 of the Constitution as read with Sections 3, 4 and 5 of the Access to Information Act, which places a burden on both public and private persons to provide such information as may be necessary subject to Section 6 of the same Act. 15. The provisions of the Constitution claimed to have been breached include Articles 2 (1), 3(1), 10, 21, 35 and 47. The Case of the 1st Respondent: 16. The case of the 1st Respondent is that since March 2020, together with his business partners, he has been operating a bar and restaurant business known as Alleyways Bar and Restaurant on the property known as Kisumu Municipality Block 7/356. That the business is registered in the name of Malanie Atieno Onyango and Brenda Otieno pursuant to the Registration of Business Names Act, Cap 499, Laws of Kenya. 17. That the business is operated in a commercial zone within Kisumu City Central Business District but not in a residential area as stipulated in the Kisumu City Zoning Regulations and the Local Physical and Land Use Development Plan. That being a commercial zone, the business has been compliant with the maximum permissible noise level of 25 decibels at night as scheduled by the First Schedule of the Environment Management and Coordination (Noise and Excessive Vibrations Pollution) (Control) Regulation 2009. 18. That the Respondents' premises are eligible to operate within the said area since the area does not fall under a residential zone as prohibited by Section 14 (1) of the Kisumu County Alcoholic Drinks Control Act 2014. That the Petitioner has not tendered evidence to support the allegation that the 1st Respondent has been playing extremely loud music and is thus a pollutant. That the level of noise emitted from the premises is within the levels permitted by the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control Regulations 2009. That the 1st Respondent is entitled to equal protection and equal benet of the law as guaranteed by Article 27 (1) of the Constitution, which should include full enjoyment of the right to use the property for their economic gain. 19. That the amended Petition as presented is a wanton abuse of the court process, is scandalous, frivolous and fundamentally incurable and bad in law and intended to embarrass the court and the legal process and should be dismissed with costs to the 1st Respondent. That the amended petition does not satisfy the parameters of a Constitutional Petition set out in the case of Anarita Karimi Njeru, as the petitioner has not pointed out with specicity how the 1st Respondent has violated its right. That the Petitioner has not demonstrated that it is deserving of the orders sought. 20. The Case of the 3rd Respondent, as contained in the Replying Adavit sworn by OLGA AKINYI AUMA, the 3rd Respondent is that she is a stranger to the allegations in the Petition. That the 1st Respondent is only a tenant in her premises whereat he resides and conducts business alongside other tenants, and that the petition discloses no plausible cause of action against her, and prayed that the petition be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 4

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Submissions: 21. Pursuant to directions issued on 25/2/2025, the Petition was canvassed by way of Adavit evidence and written submissions. 22. On behalf of the Petitioner, written submissions dated 4/2/2026 were led by Owiti, Otieno and Ragot Advocates. Counsel framed the issues of fact and law for determination in the petition as follows: a. Whether the Petitioner is clothed with capacity and locus standi to maintain the instant Petition and whether the court has the jurisdiction to hear and determine the petition. b. Whether the Petitioner has availed proof to the requisite standard of the alleged noise pollution against the 1st Respondent; if not, what should be the fate of the instant Petition, but if so, what reliefs ought to be issued in favour of the Petitioners. c. Whether the Petitioner has any legitimate cause of action against the 2nd, 3rd and 4th Respondents should it be determined that the 1st Respondent is liable for the alleged noise pollution, and if so, what orders should issue in relation to the said Respondents. 23. The Petitioner also led supplementary submissions dated 4th February 2026. 24. On behalf of the 1st Respondent, written submissions dated 5/12/2025 were led by Ogejo, Omboto and Kijala Advocates. The issues for determination framed on behalf of the 1st Respondent are: - 25. a. Whether or not the 1st Respondent violated the Petitioner’s constitutional rights under Articles 35, 40, 42 and 47 of the Constitution of Kenya 2010. b. Whether the 1st Respondent has breached any statutory or regulatory obligation under the Environmental Management and Coordination Act, Cap 387, and related regulations. c. Whether the electronic evidence is admissible d. Whether the Petitioner is entitled to the relief sought. e. Who should bear the costs of this petition? The rest of the Respondents led no submissions. Issues for Determination: 26. Taking into account the pleadings in the Amended Petition, Supporting Adavits, Grounds of Opposition and Replying Adavits led and the written submissions by the Petitioner and the 1st Respondent, I nd that the issues that emerge for determination are: a. Whether or not the Petitioner has capacity to maintain the Petition and whether the court has jurisdiction to hear and determine the petition. b. Whether the Petitioner has proved the alleged noise pollution. c. Whether or not the 1st Respondent violated the Petitioner’s Constitutional Rights under Articles 35, 40, 42 and 47 of the Constitution of Kenya 2010. d. Whether the 1st Respondent has breached any Statutory or regulatory obligation under the Environmental Management and Coordination Act and related regulations. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 5

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e. Whether the Petition discloses the 2nd, 3rd and 4th Respondents. f. Whether the electronic evidence is admissible. g. Whether the petitioner is entitled to the relief sought. h. Costs of the Petition. Analysis and determination: The rst issue for determination is whether the Petitioner has capacity to maintain the Petition and whether the Court has jurisdiction to hear and to determine the same; 27. It was submitted that although those two issues of fact and law were raised in the replies by the Respondents, the same were decided by the Court in a Ruling dated 3/11/2022 at paragraphs 7-15 of the Ruling wherein the Court dismissed the Respondents' arguments. That the Respondents were content and they never appealed against the Ruling. That to revisit the issue now would amount to res judicata. No submission was made by the Respondents on this. 28. I have read the ruling made on 3/11/2022 where the court addressed the issue of its jurisdiction in the matter and capacity/locus standi of the Petitioner. I note that the court ruled that it had jurisdiction and that a party can le a suit in its business name and that the Petitioner therefore had the capacity. There is no evidence that the ruling has been appealed against, reviewed or varied. The second issue for determination is whether or not the Petitioner has proved the noise Pollution; 29. The main complaint in the Petition is based on noise pollution by the 1st Respondent which the Petitioner claims has interfered with its full enjoyment of its property, hence violating the Petitioner’s rights guaranteed by Article 40 and 42 of the Constitution. The Petitioner pleaded in paragraphs 19, 22 and 23 of the Amended Petition that the noise emitted by the 1st Respondent’s business was loud, unreasonable and unusual and was made every day of the week to entertain the patrons of the 1st Respondent’s business. That the 1st Respondent uses radio, TV and other sound amplifying devices to make the loud, annoying and oensive noise. 30. In its Supporting Adavit sworn on 28th January, 2022 by Kennedy Odhiambo Owiti, Advocate, the Petitioner rehashed the contents of the Petition and stated in paragraph 7 thereof that because of the noise pollution the Petitioner is unable to engage in any gainful business. 31. In the Supplementary Adavit sworn on 28th May, 2026, the Petitioner narrated how the Parties attended a meeting at the 5th Respondent’s City Manager’s Oces to try to resolve the Complainant's complaint of excessively loud music and noise from the bar and restaurant owners. To the Supplementary Adavit was attached a transcription of an audio recording. 32. And in the Supplementary Adavit (2) sworn by Jude Ragot Advocate on 29th May, 2026, it was deposed to that despite a handwritten agreement entered into between the parties herein on the 5th September, 2023, the 1st Respondent had not implemented the terms thereof and has continued daily unabated with the loud and excessive noise arising from the business premises without any change, just as it was at the time the Petition was led in Court. 33. In its Submissions, the Petitioner cited the provisions of Regulations 4, 5 and 6 of the Environment Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations 2009, relied upon by the 1st Respondent, and submitted that in the Petition, the Petitioner has not availed https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 6

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any calibration of measurement by way of any survey report of noise and vibration activities of the 1st Respondent. Counsel submitted that the 1st Respondent, too, had not availed any such record of such calibrated noise and vibration activities arising from its operation. That this option of determination of the 1st Respondent’s noise and vibration activities complained of is therefore not available to the Court. 34. Counsel submitted further that the Petitioner had, however, availed proof of the 1st Respondent’s loud, unreasonable noise which annoys, disturbs, injures or endangers the comfort, repose, health or safety of others and the environment within the parameters of proof as contemplated under Regulations 3(a) and 4(a) as follows;The 1st Respondent’s own unequivocal recorded admission that its business had been causing intolerable, unreasonable noise and vibration, as recorded by its manager, Mr. Archie Odero, in a meeting held on 5th September, 2023, chaired by the 5th Respondent’s City Manager, as contained in the ash disk, and that the 1st Respondent did not deny the narration contained in the ash disk.Uncontroverted evidence in paragraphs 4 and 5 of the evidence of Kennedy Odhiambo Omiti sworn on 28.1.2022.The written agreement produced by the Petitioner to have been executed between the Petitioner and M/S Imperial Annex Hotel (Express) on the one side and the 1st Respondent on their undertaking to implement the soundproong systems on their premises within a period of one month from 5.9.2023. That the 1st Respondent had not produced any evidence that he had not done so.Exhibit K00/5 in the Adavit by Kennedy Odhiambo Owiti sworn on 28.1.2022, which is a Notice dated 25.1.2021 issued by the 5th Respondent to various restaurants within the CBD and the Milimani Estate in Kisumu, stopping them from playing any music at all in their business premises until they install appropriate soundproong material. That the 1st Respondent was the 1st one on the list.It was an undisputed fact that the Petitioner had written a demand letter dated 4th November, 2020 to the 1st Respondent, produced as Exhibit K00/3, demanding that the 1st Respondent should immediately cease making the unreasonable, unnecessary noise from its premises and erase the grati drawing on the Petitioner’s perimeter wall. That neither receipt of the letter by the 1st Respondent nor its content was disputed by the 1st Respondent.That there was a letter dated 14.12.2020 written to the 5th Respondent demanding that it immediately take action against the 1st Respondent by stopping it from continuing with the excessive and unreasonable levels of noise, which has not been denied by the 1st Respondent, and that the burden of proof rested on the 1st Respondent to disprove the allegation or to prove otherwise.That the Petitioner, having challenged the 1st Respondent to produce proof of its legal claim to play such music, the burden rested with the 1st Respondent to disprove the same or prove otherwise. 35. Counsel concluded that the foregoing evidence constitutes overwhelming and satisfactory proof of excessive noise and vibration from the 1st Respondent’s business within the alternative mode of proof set out in Regulations 3 and 4(a) above. Counsel relied on the case of Elizabeth Kurer Heirer & Another =VS= County Government of Kili and 4 Others [2020] eKLR where the Court found that apart from calibrated measurements of the levels of noise as proof of determination of excessive noise and vibration, there were other modes of proof and that the Court relied upon the provisions of Regulations 3 and 4(a) as cited by the Petitioner herein. Counsel also relied on the case of Amani Resident Welfare Association/Mirema suing on behalf of the Residents of Mirema Estate Nairobi =VS= Senteu Ha Cocorico Wines and 5 Others ELC Petition No. E031 of 2022 [2024] KEELC 5172 (KLR) (11th April, 2024 Judgment), which followed the Judgment of the Court of Appeal cited earlier. 36. The 1st Respondent pleaded in response (Replying Adavit sworn on 26th May, 2026 by Gerald Onyango) that the business of the 1st Respondent is operated in a commercial zone and not a residential https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 7

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area, and that it has been compliant with the maximum permissible noise levels of 25 decibels at night. That the premises emit a reasonable noise level as permitted and that the 1st Respondent has put in place measures to curb and mitigate any noise pollution likely to emanate from the business premises. That the business establishment has never been in receipt of any letter from the 5th Respondent citing closure of the establishment following excessive noise emission as claimed by the Petitioner. 37. It was submitted on behalf of the 1st Respondent that the Petitioner produced neither a report by NEMA nor a noise survey by the County Government of Kisumu to support its assertion that the level of noise was high above the required standard by the Regulations; that the Petitioner has failed to adduce any credible evidence or proof, such as a noise survey report or decibel reading, to support its assertion and allegation that the 1st Respondent had exceeded the permissible noise levels or caused environmental harm. That the Petitioner has not discharged the burden of proof as required under section 107 of the Evidence Act. That the Petitioner has further failed to provide uncontroverted evidence of probative value to support its assertion and has not complied with the parameters of Constitutional Petitions as envisaged in Anarita Karimi Case. 38. I have considered the pleadings, Adavit evidence and submissions on this issue. The burden to prove the allegation that the 1st Respondent produced excessive noise that was injurious to the Petitioner’s business and the environment rested with the Petitioner. See Section 107 of the Evidence Act which provides that; 1. Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that that burden of proof lies on that person.” Section 108 states that; “ The burden of proof in a suit or proceedings lies on that person who would fail if no evidence were given on either side.” Section 109 of the Act places proof of any particular fact on the person who wishes the Court to believe in its existence, unless it is provided by any Law that the proof of that fact shall lie on any particular person. 39. Noise has been dened in Regulation 2 of the Environment Management Coordination (Noise and Excessive Vibration Pollution (Control) Regulations 2009 as; “ Any undesirable sound that is intrinsically objectionable or that may cause adverse eects on human health or the environment”. And noise pollution as:“ the emission of uncontrolled noise that is likely to cause danger to human health or damage to the environment”. Vibration is dened as:“ An oscillatory motion of solid bodies of deterministic or random nature described by displacement, velocity or acceleration with respect to a given reference point.” And excessive vibration is dened as the presence of vibration which; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 8

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40. 41. a. Is of such intensity, duration, frequency or character as to annoy, disturb or cause or tend to cause adverse psychological eects on persons, or to damage or tend to damage personal or real property and b. Exceeds 0.5 centimeters per second beyond any property boundary or 30 metres from any moving source. Part II of the Regulations contains general prohibitions. Regulation 3(a) prohibits excessive noise and provides the factors that may be considered in determining unreasonable noise as follows; 1. Except as otherwise provided in these regulations, no person shall make or cause to be made any loud, unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose, health or safety of others and the environment. 2. In determining whether noise is loud, unreasonable, unnecessary or unusual, the following factors may be considered:a. Time of the day; b. Proximity to residential area; c. Whether the noise is recurrent, intermittent or constant; d. The level of intensity of the noise; e. Whether the noise has been enhanced in level or range by any type of electronic or mechanical means; and f. Whether the noise can be controlled without much eort or expense to the person making the noise. Regulation 4 addresses excessive vibration as follows; 1. Except as provided in these Regulations, no person shall; a. Make or cause to be made excessive vibrations which annoy, disturb, injure or endanger the comfort, repose, health or safety of others and the environment; or b. Cause to be made excessive vibrations which exceed 0.5 centimeters per second beyond any source property boundary or 30 metres from any moving source.” 42. While the 1st Respondent maintained the position that to determine whether there was noise pollution or excessive vibration, measurements had to be taken in accordance with Regulation 6 and the First Schedule to the Regulation, the Petitioner contended that taking measurements is not the only way to determine whether there is noise pollution. Both Parties relied on Regulation 3 and 4. 43. It was admitted that such measurements had not been undertaken by both Parties. The Petitioner did not cause the measurements to be undertaken so as to demonstrate that the noise from the 1st Respondent’s business exceeded the maximum permissible noise levels as itemized in the First Schedule to the Regulations. The 1st Respondent, who claimed to be within the permissible levels, did not produce any report of measurements done to conrm this. 44. However, under Regulation 3(2), the level and intensity of the noise is only one of the factors that may be considered in determining the question of noise pollution. The Petitioner, in its submissions, listed the kinds of evidence it placed before the Court to prove the noise pollution. One of them is https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 9

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the recording as contained in the ash disk availed to the Court and transcribed in the Petitioner’s submissions. The recording was, however, said to have been done without the knowledge and/or permission of the Respondents and other attendees of the meeting and particularly the 1st Respondent. 45. The 1st Respondent’s position is that the recorded document (electronic evidence) is not admissible. The 1st Respondent submitted that the electronic evidence produced by the Petitioner violates the law and is inadmissible as evidence. That the same was obtained in violation of the constitutional right to privacy under Article 31 of the Constitution of Kenya, 2010, as the recording was made without the consent or knowledge of the participants in the meeting, including the 1st Respondent, and without any lawful authorization. 46. The position of the Petitioner was that the electronic evidence was admissible. Counsel referred the court to the provisions of the Data Protection Act No. 24 of 2019 and the Data Protection (General) Regulations 2021 and submitted that, from the provisions of section 30(1)(a) and (b) of the Data Protection Act and the Data Protection (General) Regulations, 2021, not all processing of personal data like the one used in this trial by the Petitioner requires the consent of the data subject. That, in addition, in the instant case, the Petitioner’s purpose of collection and use of the personal data is exempted from the requirement of consent of the data subject within the meaning of section 30 (1) (b) of the Data Protection Act, because, from the invitation letter to all the stakeholders who were called upon to attend the meeting before the City Manager, it was clear that the nature of the invitation related to an attempt on his part to resolve an ongoing challenge of excessive noise pollution complaints raised by various persons owning accommodation facilities in the CBD in Kisumu. 47. The requirement for consent to record information like the one contained in the ash disk relied on by the Petitioner is not contested. The Petitioner’s position is that its case was covered by the exemption in section 30 of the Data Protection Act and Regulation 5 of the Regulations thereunder. It is noteworthy that the recording was not in place as at the time of ling the suit. The same was done in the pendency of the suit and without the consent of those being recorded and particularly the representatives of the 1st Respondent who was already a party to this Petition. 48. Secondly, I have read the invite letter which is said to have initiated the meeting in which the recording was done. The letter is dated 4th September, 2023 and addressed to the Manager, Imperial Express Hotel. It is not addressed to or copied to the Petitioner. The letter is marked Exhibit JRI 1. The Petitioner’s explanation as to how it got to know of the existence of the letter was that its partners were informed of the letter by the Manager of Imperial Express Hotel and that the partners agreed that Counsel for the Petitioner attend the meeting mentioned in the letter. The Petitioner was not invited to the meeting; nonetheless, its representative attended and proceeded to record the proceedings of the meeting without the knowledge or consent of all those present and to use the recording in this Petition. 49. I do not see the exception in section 30 of the Data Protection Act and Regulation 5 of the Regulations that covers such a scenario. I nd that the electronic evidence is not admissible as evidence and, as such, it cannot be acceptable as one of the ways by which the Petitioner demonstrated the noise pollution without having the levels of the noise measured. 50. Exhibit JRI 5 attached to the Supplementary Adavit was a handwritten agreement. It was the Petitioner’s position that it contained what was agreed on in the meeting held on 5. 9. 2023 and was signed by all parties present, and particularly the representatives of the 1st Respondent and the Petitioner. The substantive issue agreed on was the reduction of volume of noise and that the representatives of the 1st Respondent agreed to take certain measures within 1 month (30 days) to eect the reduction. This agreement, although served upon the 1st Respondent, was not contested. What the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 10

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1st Respondent only stated both in its response to the amended Petition and in its submissions is that it had taken mitigation measures to prevent the emission of excessive noise from its premises. 51. The other way that the Petitioner claimed to have demonstrated that there was noise pollution is that it wrote a demand letter to the 1st Respondent complaining about noise pollution emitted from the 1st Respondent and the unauthorized grati advertisement, but that the 1st Respondent did not comply. Further that neighbours, including Imperial Express Hotel, registered complaints about the noise pollution from the 1st Respondent’s business. To the Supporting Adavit sworn by Kennedy Odhiambo Owiti on 28th January, 2022, was attached a letter dated 4th November, 2020 by Owiti Otieno and Ragot Advocates addressed to Gerald Onyango Alleyways Bar and Restaurant concerning noise pollution emitted from Alleyways and unauthorized grati and letters by Pals Wagenaar addressed to the County Manager, NEMA and His Excellency the Governor of Kisumu County. I have, however, noted that the incidents of pollution complained about in the letters by Pals Wagenaar relate to a period before the cause of action in the Amended Petition herein arose; hence, the same are not relevant to the complaint at hand. The Petition states that the cause of action that is the subject of the Petition arose in March, 2020. The 1st Respondent denied receipt of any demand from the Petitioner concerning noise pollution. It was not demonstrated by the Petitioner that the demand letter dated 4.11.2020 was dispatched to and received by the 1st Respondent. 52. The other way the Petitioner stated to have demonstrated that there was noise pollution is that there was a letter dated 14.12.2020 written to the 5th Respondent demanding that it take action against the 1st Respondent. This letter was exhibited as KOO 6 attached to the Supporting Adavit of Kennedy Odhiambo Owiti sworn on 28.12.2020. On its face, the letter bears the receiving stamp of the City Manager of Kisumu dated 16.12.2020. The subject matter of the letter was Noise Pollution emitted from Alleyways Bar and Restaurant. The 5th Defendant did not deny receipt of this letter or indicate whether it took steps to investigate the matter. 53. From the evidence placed before the Court, it is clear that although the noise levels were not measured in accordance with the regulations, the other factors of determining whether there was noise pollution under Regulation 3(2) have been demonstrated. There were letters of complaint, particularly the letter dated 14.12. 2020 addressed to the County Government, the meeting at the oces of the City Manager in which it was agreed inter alia that the 1st Respondent takes the following steps to reduce the noise, namely: a. Build a soundproof wall around its business on the (4) four sides of its establishment with soundproof glass in its roof or any other implement to contain the noise within its borders of establishment.” And to do so within 30 days with eect from 5.9.2023. It was the Petitioner’s case that the noise was on throughout, that it was recurrent and constant, and that the same had been amplied by using TV and radio. The 1st Respondent stated that it had taken mitigating measures to reduce the noise. 54. The Court is guided by the Court of Appeal decision in the Elizabeth Kurer Heier & Another (Supra) Case cited by the Petitioner herein. The Court nds that on the basis of the evidence placed before the Court, the Petitioner proved that there was noise pollution and that its constitutional rights guaranteed in Article 42 have been infringed. 55. The letter dated 14. 12. 2020 demanded information from the 5th Respondent. The Petitioner’s case is that, to date, the information has not been supplied, thereby violating the Petitioner’s right to information under Article 35 of the Constitution of Kenya 2010. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 11

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56. The Petitioner exhibited business records to show that income from its business had dwindled, which fact the Petitioner attributed to the noise pollution. The Respondents did not challenge this evidence. 57. The case against the 2nd, 3rd, 4th and 6th Respondents has not been proved. 58. The court nds that the Petitioner has proved its claim against the 1st and 5th Respondents and enters judgment in favour of the Petitioner for: i. A declaration that the 1st and 5th Respondents have infringed on the Petitioner’s right to a clean and healthy environment as guaranteed in Article 42 of the Constitution and the right to information under Article 35 of the Constitution. ii. An order of permanent injunction restraining the 1st Respondent, its agents, employees, or any other person claiming through it, from emitting noise from its business known as Alleyways Beer Garden or any such other business that would operate as such and host social events on the land known as Plot No. Kisumu Municipality Block 7/356 or any other land within Kisumu County until it takes such mitigation measures in compliance with the Environmental Management and Co-ordination Act. iii. An order directing the 1st Respondent to remove the grati painted on the Petitioner’s wall within 45 days hereof, failing which the Petitioner removes it and recovers the costs from him. iv. General damages of Kshs 1,000,000/ v. Costs of the petition JUDGMENT DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 24TH DAY OF SEPTEMBER, 2026. HON. E. ASATI, JUDGE. In the presence of Chuma/Zeddy/Atika: Court Assistants. Angwenyi h/b for Ragot for the Petitioner. Abuor for the 1st Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5862/eng@2026-09-24 12

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