[2024] KEELC 13938 (KLR)

Chemitei & 2 others v Murgor t/a Coco Grill & 3 others (Environment & Land Petition E006 of 2024) [2024] KEELC 13938 (KLR) (19 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13938 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Petition E006 of 2024

EO Obaga, J

December 19, 2024

Between

Mary Jemeli Chemitei

1st Petitioner

Lydia Jemutai Tuitoek

2nd Petitioner

Lamek Rono

3rd Petitioner

and

Donald Murgor T/A Coco Grill

1st Respondent

Uasin Gishu County Alcoholics Dinks Control Board

2nd Respondent

Uasin Gishu County Gvernment

3rd Respondent

National Environment Management Authority

4th Respondent

Ruling

1. By a Notice of Motion dated 18th July, 2024 the Petitioners/ Applicants sought for the following orders: -a.Spent.b.Spentc.That pending the hearing and determination of this petition, a temporary order of injunction be and is hereby issued, restraining the 1st respondent whether by himself or anyone working under him or trading as the Coco Grill from further operation of the Coco Grill and causing or continuing to cause noise pollution in or from the said Coco Grill & Bottle within Kimumu in Uasin Gishu County.d.That costs of this Application be provided for.

2. The application is based on the 10 grounds thereof and the Supporting Affidavit and Further Affidavit sworn by the 1st Applicant on 18/7/2024 and 31. 7.2024 respectively, on her own behalf and on behalf of her co-applicants. She stated that the applicants are residents and registered proprietors of plot Nos. Uasin Gishu/ Kimumu/ Plot No. 1172, 1173 and 3031respectively while the 1st respondent owns the adjacent plot.

3. It is her claim that the 1st respondent, operates a bar and restaurant under the name Coco Grill and which has resulted in loud music being played daily and patrons making noise while enjoying themselves to the discomfort of the petitioners and residents who have families and school going children thus, negatively affecting their lives.

4. She contends that despite having several meetings with the residents and the area chief and raising several complaints to local authorities and the respondents; no action has been taken against the 1st respondent to the detriment of the applicants and the area residents and total disregard of the rule of law, constitutionally and statutory entrenched non-derogable rights and principles.

5. She maintained that unless the interim restraining orders are granted against the continued operation of the Coco Grill; the petitioners rights under Articles 28 and 42 of the constitution shall continue to be violated thereby causing hardship, inconvenience and irreparable loss.

6. In her Further Affidavit; the 1st applicant in response to the allegation that the petition has been filed prematurely reiterated that the petition as filed is ripe as the same relates to the violation of the petitioners’ rights under Articles 28 and 42 and this court is vested with the requisite jurisdiction to entertain the same.

7. She partially admitted the contents of paragraph 5 of the Replying Affidavit to the extent of the provisions of section 9 of the Uasin Gishu County Alcoholic Drink Act, 2014 but denied public participation being conducted, that the community members were never invited to give their views and maintained that no evidence had been tendered by the 1st respondent and the assertions thus amount to misrepresentations and lack substantive evidence.

8. In response to the averments made in paragraph 11 of the replying affidavit that the allegations on noise pollution have been without cogent evidence; she maintained that the 1st respondents through texts and WhatsApp messages to her; communicated that he was aware of the noise generated by his bar and was putting measures to curb further noise. She annexed a print out of the phone and text messages and mpesa message confirming that the phone number belonged to the 1st respondent in support of their claim.

9. It is her contention that the 1st respondent’s rights must be balanced against the petitioners’ equal rights and the petitioners’ rights should not be violated at the cost of the 1st respondent’s financial gain. She thus maintained that the applicants had presented a prima facie case and urged the court to allow the application.

10. The application was opposed. The 1st respondent filed a Replying Affidavit sworn on 26. 07. 2024. He confirmed that he is the registered owner of land parcel No. Uasin Gishu/Kimumu Scheme/7455.

11. He dismissed the petition and application as being filed prematurely contrary to the provisions of sections 31, 32, 125 and 126 of the NEMA.

12. In response to the allegations levelled against him on noise pollution and operating a bar within a residential area; he averred that section 9 of the Uasin Gishu County Alcoholic Drinks Control Act was fully complied with, and at the time of applying for his license, public participation was conducted, the relevant committee visited and inspected the place before finding that it was appropriate. He thus deposed that the applicants cannot not raise an objection at this point when they elected not to participate in the public participation.

13. It was his contention that he is not operating his business illegally and that he has been operating his business since February, 2023 with all the requisite approvals, licenses and receipts from the relevant government agencies.

14. He further averred that the claims by the applicants that his business was generating noise pollution had been made without cogent evidence and the same is not sufficient basis to justify the closure of his business; that he also has a right to economic and social justice as enshrined in the Constitution and maintained that the applicants had not established a prima facie case to warrant the grant of the orders sought.

15. The Application was canvassed by way of written submissions; both parties filed their rival submissions and authorities, which I have read and considered.

16. I have taken into account the entire application, the Affidavits together with the annexures thereto and the rival submissions. Consequently, it is my considered view that the only issue arising for determination is whether the Applicants have met the requirements for the grant of a temporary order of injunction as sought.

17. The law relating to injunctions is provided under Order 40 (1) (2) of the Civil Procedure Rule which provides as follows: -1. “Where in any suit it is proved by affidavit or otherwise: -(a)That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree;(b)…………,the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”

18. Section 13 (7) (a) of the Environment and Land Court Act, 2015 further mandates this court to grant interim preservation orders; including an interim order of injunction in the nature sought herein.

19. The principles guiding the grant of injunctions are well settled and this court does not seek to reinvent the wheels. An applicant seeking orders of injunction must satisfy the 3-pillar test set out in the celebrated case of Giella vs Cassman Brown and Co. Ltd [1973] EA. 358 at 360 as follows: -a.where he is required to demonstrate that he has a prima facie case with serious triable and arguable issues with a probability of success against the respondent. The test on prima facie case does not mean establishing a case beyond reasonable doubt;b.He will suffer irreparable harm/injury which cannot be adequately compensated by damages;c.Balance of convenience: In granting an injunction under this condition the court must be satisfied that the hardship or inconvenience which is likely to be caused to the applicant by declining the injunction will be greater than that which is likely to be caused to the respondent.

20. It has also been held that all the 3 pillars indicated above are to be applied as separate, distinct and logical hurdles which an applicant for an Order of Injunction is expected to surmount sequentially. The existence of one pillar alone does not automatically entitle an Applicant to an order of injunction without considering the other hurdles. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86.

21. The first ground that an Applicant must establish is that he has a Prima Facie case which raises arguable and triable issues with a probability of success. The Court of Appeal in Mrao Ltd vs First American Bank of Kenya Ltd & 2 (Supra) explained what amounts to a prima facie case and stated as follows:“a prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

22. The Applicants contend that the 1st respondent is operating a bar and restaurant within a residential area and whose operation is causing noise pollution to their detriment and constitutes a violation of their rights as enshrined under Articles 28 and 42 of the constitution. That despite efforts to have the same curbed and/or controlled by the relevant officials, no steps have been taken by the respondent while the pollution continues hence the instant application.

23. The Respondent dismissed the claims by the respondent and maintained that no prima facie case had been established and further that the claims had been made without cogent proof.

24. I have critically looked at the applicants’ Supporting Affidavit and Further Affidavit and the annexures thereto. The steps that the applicants have taken in trying to solve the issue; the several letters of complaint written to the various authorities, the meeting held by the residents and minutes thereto.

25. In particular, the Applicants in their Further Affidavit deponed that the 1st respondent admitted to the noise pollution emitted from his bar and promised to put measure in place to curb the same. They annexed the various phone text messages and mpesa message. Have looked at annexure ‘MJC- 1(A&B) which I have perused and it is evident that the 1st respondent indeed admitted/conceded to the noise pollution caused from his bar. No contrary evidence has been adduced to challenge the same.

26. Thus, based on the material presented before me, it is the finding of this court that the applicants have satisfactorily established a prima facie case against the 1st respondent.

27. The second limb is that an Applicant must demonstrate that he will suffer irreparable harm which cannot be adequately compensated by damages unless an Order of Injunction is granted. The burden is on the applicant to demonstrate the nature and extent of the substantial injury likely to be suffered.

28. In the case of Pius Kipchirchir Kogo versus Frank Kimeli Tenai (2018) eKLR the court while defining what amounts to an irreparable injury held as follows;“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”

29. The Applicants’ claim against the 1st respondent is against an alleged violation of constitutional rights as provided in Articles 28 and 42 of the Constitution. They contend that the continued operation of the 1st respondent’s bar and restaurant business within the residential area will amount to a continued violation of their rights and those of their families and which cannot be adequately compensated by way of damages.

30. This court has a duty to prevent grave and irreparable injury; where it is demonstrated that the same is likely to be suffered by the Applicant. An injury is irreparable where there is no standard by which an amount can be measured with reasonable precision and accuracy or is in such a nature that monetary compensation, of whatever amount, will never be adequate remedy. It is my considered opinion that the Applicants have satisfactorily their claim and the nature of the violation of their constitutional rights and which in my view cannot be quantified by damages. See Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR; Civil Appeal No. 77 of 2012 (Nairobi).

31. The final element that must be established is on the balance of convenience. The court needs to be satisfied that the inconvenience likely to be caused to the Applicant by declining the injunction is greater than that which is likely to be caused to the Respondent. The court is called upon to balance the inconveniences of both parties and possible injuries to them and their properties.(See Charter House Investment Limited vs Simon K. Sang and 3 Others [2010] eKLR.

32. The 1st respondent’s contention is that he has an equal right to economic and social justice as enshrined in the Constitution and the allegations of noise pollution by the applicants is not a sufficient basis to justify the closure of his business which is his only source of livelihood. This court is therefore called upon to consider the two competing rights of the applicants and the 1st respondent in determining balance of convenience.

33. This court acknowledges both party’s rights; while the applicants have the right to a clean and healthy environment free of noise pollution and the right to have their dignity respected and protected; the 1st respondent also has a right to economic and social justice. It is not in dispute that the 1st respondent’s bar and restaurant is located within a residential area; the applicants annexed bundle of photographs to demonstrate the same. Further, I have gathered from the annexures presented before this court that there is a school AIC Chebisaas Boys Secondary school opposite the 1st respondent’s bar.

34. It is therefore my considered view that the balance of convenience lies in favor of the applicant in granting the orders of temporary injunction, pending the hearing and determination of the substantive petition.

Conclusion: 35. In view of the foregoing, I find that the Notice of Motion Application dated 18. 07. 2024 is merited and is hereby allowed on the following terms;a.An Order of temporary Injunction be and is hereby issued, restraining the 1st respondent whether by himself or anyone working under him or trading as the Coco Grill from further operation of the Coco Grill and causing or continuing to cause noise pollution in or from the said Coco Grill & Bottle within Kimumu in Uasin Gishu County pending the hearing and determination of the petition herein.b.The Applicants shall have costs of Costs of the Application.It is so Ordered.

CONCLUSIONSDATED, SIGNED AND DELIVERED IN ELDORET THIS 19TH DAY OF DECEMBER, 2024. E. O. OBAGAJUDGERuling delivered in the virtual presence of: -M/s Kosgey for the Applicant.Mr. Kipnyekwei for the 1st Respondent.Mr. Keter for 2nd and 3rd Respondents.Court Assistant - LabanE. O. OBAGAJUDGE19TH DECEMBER, 2024