George Wachira v Pastor Benson Nyawira, Managing Minister, Word & Faith Holy Ministries & 2 others

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **PETITION NO. E002 OF 2026** **GEORGE WACHIRA - PETITIONER** **VS** **PASTOR BENSON NYAWIRA** **MANAGING MINISTER, WORD &** **FAITH HOLY MINISTRIES - 1ST RESPONDENT** **NAIROBI CITY COUNTY - 2ND RESPONDENT** **NATIONAL ENVIRONMENT MANAGEMENT** **AUTHORITY - 3RD RESPONDENT** **JUDGEMENT** **Background** 1. Vide the Petition dated 2/1/26, the Petitioner brought this suit against the Respondents seeking the following orders; 1. A declaration that the Petitioner, his wife, children, and tenants' right to peacefully enjoy his property known as Plot No 2 Dandora Site and Service Scheme and live in a clean and healthy environment has been violated by the actions of the Respondents as outlined in the petition. 2. A declaration that the 1st Respondent continued operations within Mawega Court, Dandora Estate, is a violation of the Petitioners' right to enjoy their property under Article 40 of the Constitution and a violation of their right to a clean and healthy environment as contemplated by Article 42(1) of the Constitution. 3. A declaration that the 2nd and 3rd Respondent have abdicated their constitutional and statutory duties to ensure implementation of all policies relating to the environment; to control noise pollution and public nuisance within Mawega Court, Dandora Estate in Nairobi County. 4. A permanent injunction restraining the 1st Respondents from emitting noise beyond their premises that interferes with the Petitioners' right to quiet use and enjoyment of their properties and to live in a clean and healthy environment 5. An order for the officer commanding station [OCS] Dandora Police Station and/or Embakasi West Assistant County Commissioner to assist in the implementation of the orders of his Honourable Court. 6. General damages to compensate the Petitioner for the violation of the Petitioner's fundamental rights and freedoms 7. Costs of the petition 2. The Petitioner avers that he and his family have lived in Dandora for decades, enjoying the peaceful and serene surroundings of a low-density residential area. 3. The 1st Respondent operates a church within the Mawega Estate, in a building owned by the 1st Respondent, without soundproofing, creating unbearable noise and violating his right to a quiet and healthy environment. 4. Due to the nuisance and noise pollution in the area caused by the activities of the 1st Respondent, the Petitioner has lost tenants at his premises, and the health of his family is being adversely affected. 5. Despite the requests issued to the 1st Respondent, he has disregarded them taken no steps to rectify the situation. The 2nd and 3rd Respondents have also failed to implement any effective enforcement measures to fulfil their statutory obligation to regulate noise and eliminate the nuisance. 6. The Petitioner’s claim has been based on several Articles of the Constitution, namely Articles 28, 40, 42, 53(1)(d) and (2) and on Section 3(1) of Environmental Management & Coordination Act [EMCA] [Noise Vibration Pollution (Control) Regulations, 2009]. 7. Benson Nyawira, the Managing Minister of Word of Faith Holy Ministries, deposed that the 1st Respondent operates a lawful place of worship. 8. The 1st Respondent objected to the Petition through his undated statement. He stated that he is a pastor at the Word and Faith Holy Ministries, located in Mawega Court, Dandora Estate, Nairobi. The church primarily holds services on Sundays and occasionally on weekdays, with daytime prayer and fellowship sessions conducted in an orderly and peaceful manner, in accordance with the principles and teachings of the Christian faith. 9. The Petitioner is a neighbour residing in the same Mawega Estate, Dandora Estate, an area comprising residential houses, small businesses, educational institutions, and several places of worship belonging to different denominations. The church members are local residents who voluntarily attend services for spiritual nourishment, fellowship, and moral guidance. 10. He denied that the church emits excessive noise capable of saturating the entire neighbourhood. The church uses modest sound equipment primarily to ensure that members of the congregation on the premises can clearly hear the preaching. He also stated that they have not been served with any enforcement notice or warning from any regulatory authority indicating that their activities are violating environmental regulations. He denied that the church plays music containing obscene or offensive language; rather, it plays gospel music and delivers sermons grounded in biblical teaching that promote moral values, respect, discipline, and peaceful coexistence. 11. Regarding the alleged financial loss, the deponent contended that the Petitioner has not provided any evidence, such as tenancy agreements, termination notices, or valuation reports, to demonstrate a loss of rental income, and therefore the allegations are speculative. 12. It is concluded that the neighbourhood dispute cannot be characterised as a constitutional dispute. Additionally, there is no evidence that the church's lawful activities violate dignity. Furthermore, the 1st Respondent contends that the petition is premature and incompetent, as the Petitioner has not exhausted the statutory dispute-resolution mechanism under EMCA. 13. In its preliminary objection dated 8/4/2026, the 1st Petitioner objects to the Petition on the following grounds. 1. That the petition does not meet the constitutional threshold for constitutional litigation, as set out in Anarita Karimi Njeru v. Republic [1979] and later affirmed in Mumo Matemu v. The Trusted Society of Human Rights Alliance & 5 others [2013]. 2. That the Petition improperly invokes the jurisdiction of the Environment and Land Court without exhausting the statutory dispute resolution mechanisms provided under the Environmental Management and Coordination Act [EMCA]. 3. That under the Environmental Management & Coordination Act [EMCA], complaints relating to environmental pollution and to administrative decisions of the National Environment Management Authority ought first to be determined by the National Environment Tribunal. 4. That the petition is premature, incompetent and an abuse of the Court process. 5. The petition is founded upon bare allegations unsupported by scientific evidence, expert assessment, or environmental audit reports as required under the EMCA framework. 6. The petition improperly seeks private civil remedies through a constitutional petition, contrary to the established principle that constitutional litigation should not be used where adequate alternative statutory remedies exist. 14. Interalia, the 1st Respondent filed grounds of opposition on the following grounds; 1. The application does not meet the threshold for the grant of a temporary injunction as established in Giella V Cassman Brown & Co Ltd [1973] EA 358. 2. The applicant has not established a prima facie case with a probability of success. 3. That the applicant has not demonstrated that the alleged noise levels exceed statutory limits under the Environmental Management and Coordination [Noise and Excessive Vibrations Pollution Control] Regulations, 2009. 4. That the applicant has not produced any environmental assessment report, acoustic measurement report, or official enforcement notice issued by NEMA or the County Government confirming violation by the 1st Respondent. 5. The application is based on mere speculation, conjecture, and unverified allegations. 6. The applicant has failed to exhaust administrative remedies under the EMCA before invoking the jurisdiction of the Court. 7. That the application seeks final orders at an interlocutory stage which is contrary to established legal principles. 8. That the activities of the 1st Respondent constitute lawful exercise of the constitutional right to freedom of religion under Article 32 of the Constitution. 9. The application is misconceived, frivolous and an abuse of the Court process. 15. On 7/09/2026, the parties agreed to canvass the Petition and the Preliminary Objection through written submissions within 45 days. Despite these directions, neither party adhered to the specified timeline. Consequently, the Court will proceed to determine the Preliminary Objection and the Petition on the merits. **Analysis & determination** 1. The key issues for determination are as follows; 1. Whether the preliminary objection is merited. 2. Whether the petition is merited. 3. Costs of the petition and the preliminary objection. The Preliminary Objection 1. On what constitutes a Preliminary Objection, in the case of Hassan Ali Joho & Another -Vs- Suleiman Said Shabal & 2 others SCK Petition No. 12013[2014] eKLR, the Supreme Court restated the definition in the case Mukhisa Biscuit Manufacturers Ltd vs West End Distributors Ltd (1969) E.A where the Court of Appeal said that: “…a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact needs to be ascertained or if what is sought is the exercise of judicial discretion.” 1. The Supreme Court in the Matter of Interim Independent Electoral Commission [2011] eKLR held as follows: “Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. 1. In the case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 in the following words: “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without jurisdiction.” 1. The Supreme Court of Kenya pronounced itself on the concept of jurisdiction in Samuel Kamau Macharia & Anor –vs- Kenya Commercial Bank Limited & 2 Others [2012] eKLR as follows: “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with Learned Counsel for the first and second Respondents in his submissions that the issue as to whether a Court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in the Matter of Interim Independent Electoral Commission (Applicant), Constitution Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or tribunal by statute law.” 1. The objection raised by the 1st Respondent concerns whether the Court has jurisdiction to entertain the matter in light of the exhaustion of remedies under the EMCA. As the objection is premised on a jurisdictional question, the Court holds that it is a pure point of law. The next question, therefore, is whether it is merited. 2. It is undisputed that this Court possesses both original and appellate jurisdiction concerning environmental matters, as well as issues related to land use, occupancy, and ownership. Nevertheless, it is a well-established legal principle that when Parliament has enacted an alternative dispute resolution mechanism, such procedures must be pursued prior to initiating Court proceedings. The existence of such a framework does not exclude the Court’s jurisdiction; rather, it postpones the exercise of jurisdiction to the appellate level. 3. As a principle, the doctrine of exhaustion requires a party to exhaust the alternative dispute resolution mechanism provided by statute and/or law before resorting to the Courts. Addressing the ambit and rationale of this doctrine, the Court of Appeal in Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others [2015] eKLR observed as follows: “It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of Courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 1. The Supreme Court of Kenya explained the importance of the doctrine in the case of Benard Murage -vs- Fine Serve Africa Limited & 3 Others [2015] eKLR in the following words: “Where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first.” 1. Most recently, the Supreme Court in NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) [2023] KESC 17 (KLR), made the following pronouncement on the doctrine of exhaustion: “87. This is further firmly rooted in article 159 of the Constitution which requires the Courts to promote alternative dispute resolution mechanisms. The moment a storm begins to brew; Courts should not be the first port of call but rather the final resort. Before using the Court's jurisdiction, it is essential to exhaust any available alternative dispute resolution options. The exhaustion doctrine serves to postpone judicial consideration of matters, requiring a party to be, first of all, diligent in protecting his interests through the mechanisms in place for resolution outside the Courts. The exhaustion doctrine serves as a safeguard, delaying judicial consideration of cases to ensure that a party is vigilant in protecting his interests through the available channels of dispute settlement. In this way, the doctrine serves to promote an efficient justice system and an autonomous administrative state. 1. The Court has perused the prayers sought in the Petition, which include declarations of violation of the right to a healthy and clean environment under Art 42 (1) of the Constitution, and general damages and compensation for the violation of the Petitioners' fundamental rights and freedoms under the Constitution. I find that, to the extent the Petitioners' dispute concerns a breach of the constitutional right to a clean and healthy environment, this Court has jurisdiction to entertain the matter. 2. Regarding whether the petition satisfies the criteria of a constitutional petition, the Petitioner, a resident of the estate residing 10 metres from the church, has outlined specific rights purportedly violated, namely: the right to a clean and healthy environment and the right to peacefully own property without interference from neighbors; the right to dignity, as he is unable to sleep at night due to excessive noise; and the rights of children under Article 53(1) of the Constitution, as the loud music is loud coupled with vulgar and offensive content to children and their development. The averments of violations were explicitly detailed and, in the view of this Court, sufficiently framed with a reasonable degree of precision regarding the nature of the complaint, the provision allegedly infringed, and the manner of infringement. Consequently, the petition fulfils the threshold requirement of a constitutional petition. 3. Regarding whether the petition is premature, incompetent, or constitutes an abuse of the Court process, the Court determines that this is a fact-dependent objection that necessitates a thorough assessment of evidence to reach an appropriate conclusion. 4. In the end, I reach a conclusion that the Preliminary objection is unmeritorious. It is dismissed with costs. **Whether the petition is merited.** 1. The Petitioner's case is that the 1st Respondent operates a church about 10 metres from his building. That the church emits excessive noise between 7 am and 1500 hours every Sunday. That the church has no soundproofing equipment, hence creating a nuisance in the neighbourhood. As a result, their sleep and health are affected. The vulgar music affects their children's morals and upbringing. The noise has caused tenants in the building to vacate, leading to financial loss and damages. 2. The 1st Respondent has generally denied excessive noise and contends that church services are conducted peacefully on Sundays and weekdays. The 1st Respondent has not proved financial loss by exhibiting any vacated tenancies in his building, and the claim is therefore unsubstantiated. 3. Every person has the right to a clean and healthy environment, which includes the right—(a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and(b)to have obligations relating to the environment fulfilled under Article 70. This right is entrenched under Article 42 of the Constitution. 4. To operationalise the above constitutional provisions, Parliament enacted the Environment Management and Coordination Act (EMCA). Section 3 (3) of the EMCA stipulates that; “If a person alleges that the right to clean and healthy environment has been, is being or is likely to be denied, violated, infringed or threatened, in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may on his behalf or on behalf of a group or class of persons, members of an association or in the public interest to apply to the Environment and Land Court for the redress and the Environment and Land Court may make such orders, issue such writ or give such directions as it may deem appropriate to- 1. Prevent, stop or discontinue any act or omission deleterious of the environment 2. Compel any public officer to take measures to prevent or discontinue any act or omission deleterious of the environment 3. Require that any on-going activity be subjected to an environmental audit in accordance with the provisions of this Act; 4. Compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and 5. Provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of an act of pollution and other losses that are connected with or incidental to the aforegoing.” 6. Sub-section 4 goes further to provide that; “A person proceeding under subsection (3) of this Section shall have the capacity to bring an action notwithstanding that such a person cannot show that the Defendant’s act or omission has caused or is likely to cause him any loss or personal injury provided that such action:- 1. Is not frivolous or vexatious; 2. Is not an abuse of the Court Process.” 3. Other pertinent provisions encompass Sections 9, 101-103, 117-119, and 129 of the EMCA, the Environment Management and Coordination [Noise and Excessive Vibration Pollution] [Control] Regulations, 2009, and, where applicable, relevant county legislation concerning public nuisance, liquor licensing, development control, and public health. The applicability of this legislation shall be contingent upon the source of the noise. 4. Section 101 of EMCA mandates the establishment of noise standards. Section 102 prohibits the emission of noise exceeding the prescribed standards. Sections 108-112 authorise NEMA and the County to issue orders for environmental restoration. 5. The above provision shows that this Court enjoys wide latitude in terms of the remedies that it may issue in disputes relating to violation of the right to a clean and safe environment, noise pollution included. Further the need to show actual harm is not required as long as the claim is not frivolous and or an abuse of the process of the Court. 6. Section 9 (2) of the EMCA further provides that, NEMA shall; “co-ordinate the various environmental management activities being undertaken by the lead agencies and promote the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable yield basis for the improvement of the quality of human life in Kenya. 1. The Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations was enacted in 2009. It defines “noise” as any undesirable sound that is objectionable or that may cause adverse effects on human health or the environment, and “noise pollution” is defined as the emission of uncontrolled noise that is likely to cause danger to human health or damage to the environment. A lead agency" means any Government ministry, department, parastatal, state corporation or local authority, in which any law vests functions of control or management of any element of the environment or natural resources; 2. Regulation 3 (1) of the same regulations sets out general prohibitions against the making or causing of loud unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose or health or safety of others and the environment. Regulation 3 (2) further provided several factors for determination of loud and unreasonable noise. These factors include; “(i) the time of the day; (ii) the proximity to a residential area; (iii) whether the noise is recurrent, intermittent or constant; (iv) the level and intensity of the noise; (v) whether the noise has been enhanced by any electronic or mechanical means; and (vi)whether the noise can be controlled without effort or expense to the person making the noise.” The above shows that the test is both qualitative and quantitative. 1. The regulation also clearly stipulates that a violation of the general prohibitions is an offence which attracts a penalty under the Act and the regulations. Regulation 5 prohibits anyone from making noise exceeding the levels set out in the First Schedule of the regulations, unless the noise is reasonably necessary for the preservation of life, health, safety and property, and regulation 6 makes it the responsibility of the lead agency to measure the noise levels. 2. According to the evidence adduced by the Petitioner, it is not disputed that the Petitioner's building is 10 metres from the Church. Although the Petitioner has alluded to a video annexed to demonstrate the level of noise emitted by the Church, the video is missing in the documents submitted through the Court Tracking system, and the Court has unfortunately been denied the opportunity to appreciate this evidence. 3. The Court has been provided with a letter of complaint, submitted by the Petitioner to the 3rd Respondent concerning noise disturbances originating from the neighbouring church. The 3rd Respondent has acknowledged that the complaint falls within its authority and may have an adverse impact on the environment. The complaint was subsequently referred to the County Director / lead agency, which, in this case, is the City County of Nairobi, tasked with managing noise pollution. It is regrettable that neither the 2nd nor the 3rd Respondents, despite being duly served, have filed any responses to the suit before the Court. Additionally, the Petitioner has not informed the Court of any actions undertaken following the submission of the complaint. 4. Based on the summarized provisions of the aforementioned law, a noise pollution complaint must be submitted in writing to the relevant NEMA County Director of Environment, the county environment department, and, where applicable, the county liquor licensing authority, the public health department, and law enforcement authorities. The complainant must specify their identity and the affected premises, along with details of the noise's location and operator, the nature of the noise, and, if pertinent, the dates, times, frequency, and duration. Additionally, provide information on any prior complaints and responses, as well as any impact on health, sleep, learning, or property use. 5. More importantly, the complaint should include a noise diary, recordings, photographs, witness statements, correspondence, and an expert noise assessment report. Upon receipt, NEMA should formally register and address the complaint, or refer it to the lead agency for appropriate action. An inspection report should be compiled, indicating the periods when the noise is most prevalent. If the environment officer has reasonable grounds to believe that an individual is producing noise or causing disturbance, Regulation 25 authorizes the service of an improvement notice, in consultation with NEMA and the lead agency. The notice must detail the measurement findings, specify remedial measures, and establish a compliance timeframe. Frequent follow-up inspections are essential to ensure adherence. Regulation 26 permits issuing a closure notice, depending on the circumstances of each case. NEMA's available measures include prosecuting the offender; issuing environmental restoration orders under Sections 108-110 of EMCA; suspending or recommending the cancellation of relevant licenses; mandating environmental audits or mitigation measures; and recovering costs associated with remedial actions. Closure should be regarded as a measure of last resort. 6. A person aggrieved by the environmental improvement or restoration order may appeal to the National Environment Tribunal (NET) pursuant to section 129 of the Environmental Management and Coordination Act (EMCA) within the prescribed statutory period. In cases involving constitutional violations, the individual may petition the Environment and Lands Court (ELC) in accordance with Articles 42 and 70, section 3 of EMCA, and section 13 of the Environment and Lands Court Act. This is applicable where the environmental right has been, is being, or is likely to be infringed upon; where the National Environment Management Authority (NEMA) and the county have failed to respond; where urgent injunctive relief is required; and where remedies such as compensation, declarations, or constitutional remedies are being sought. 7. I have said enough about the process for lodging a complaint. The Court will now examine whether the Petitioner has proven his case. 8. The Petitioner asserts that the noise is emitted from 7 am – 1500 hrs every Sunday and that the noise is recurrent, intermittent or constant. The 1st Respondent states that Sunday church services are held within reasonable hours, alongside midweek services. 9. It is observed that the Petitioner has not submitted any noise assessment report from NEMA, the lead agency, nor has he called any expert witness to testify about the church's noise levels. Although he was referred to the county NEMA offices, he does not explain how the complaint was handled therein. 10. In the absence of any evidence in support of the petition, the Court is unable to conclude that the noise is excessive and/or that the Petitioner's rights have been violated. The evidence would have been an assessment report from the Lead Agency, namely the 2nd Respondent, or an audit report from the 3rd Respondent. Inter alia, there is no evidence that his tenants vacated the building, nor any evidence of any tenants and/or termination agreements. 11. In the end, the Petitioners have failed to prove their claim. The petition is dismissed with costs. 12. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. N/A for the Petitioner 2. Ms. Kokonya H/B Mr. Maina for the 1st Respondent 3. N/A for the 2nd Respondent 4. Ms Muyai for 3rd Respondent 5. CA – Mr Amos