[2022] KENET 705 (KLR)

Kimani & another v National Environment Management Authority (NEMA) & another (Tribunal Appeal 29 of 2021) [2022] KENET 705 (KLR) (Civ) (9 September 2022) (Ruling)

Neutral citation: [2022] KENET 705 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 29 of 2021

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

September 9, 2022

Between

Esther Wangeci Kimani

1st Applicant

Richard Kimani Kariuki

2nd Applicant

and

National Environment Management Authority (NEMA)

1st Respondent

Bedarin Hotel Limited

2nd Respondent

Ruling

1. The notice of appeal dated November 29, 2021 is brought pursuant to rule 4 of theNational Environment Tribunal Procedure Rules, 2003. The appeal is against issuance of NEMA license No NEMA/ EIA/PSL/14144 issued on September 30, 2021 to the 2nd respondent herein.

2. The appellants raise the following grounds of appeal: -a.Noise pollution; andb.Parking by the roadside causing difficulty accessing the appellants’ compound.

3. The appellants seek the following reliefs: -a.Revocation of the Environment Impact Assessment License issued to the 2nd respondent on September 30, 2021 being license No NEMA/ EIA/PSL/14144;b.A permanent injunction order against the 2nd respondent restraining the 2nd respondent from playing music; andc.Closure of the open bar completely.

4. The appellants filed an application under a certificate of urgency dated December 8, 2021 for orders that:i.That this application be certified as urgent and it be heard ex-partein the first instance;ii.That this honourable tribunal be pleased to issue suitable Orders barring the 2nd respondent from continuing to operate a bar/club and/or playing loud music at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 pending the hearing and determination of this application;iii.That this honourable tribunal be pleased to issue suitable Orders barring the 2nd respondent from continuing to operate a bar/ club and/or playing loud music at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/ 4290 pending the hearing and determination of this Appeal;iv.That theOCS Gatongóra Police Station be directed to enforce compliance with the orders of this honourable tribunal;v.That this honourable tribunal does issue any other Orders as it may deem fit in the circumstances; andvi.That the costs of this application be borne by the respondents.

5. This application is premised on the grounds that:i.The 1st appellant is the registered owner of the property Title Number Ruiru East Block 1/3259 whereas the properties registered as Title Numbers Ruiru East Block 1/3255, Ruiru East Block 1/4290 and Ruiru East Block 1/3260 are registered in the name of Joseph Irungu Mburu and all 4 properties are located next to each other;ii.The said Joseph Irungu Mburu has been operating a hotel under the name and style of Bedarin Hotelon the property Title Number Ruiru East Block1/3260 at all material times and he also commenced operation of a bar/club on the properties registered as Title Numbers Ruiru East Block1/3255 and Ruiru East Block1/4290 from December 2020;iii.The subject bar/club is being operated from tented structures and there are powerful sound equipment that are used to entertain the revelers thereon by playing loud music at all hours of the day and night;iv.The 2nd respondent does not have a license to operate the bar/club on the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East BlocK 1/4290 and the license issued by the 1st respondent in favour of the 2nd respondent is for operation of an events garden only;v.The 2nd respondent has also failed and/or refused to install necessary protective structures that will contain the noise within its premises and as a result, the appellants, their family members and other people residing in their compound are being subjected to a grave nuisance due to the noise pollution emanating from the 2nd respondent's properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290;vi.The appellants, their relatives and other persons residing on their compound are experiencing grave inconvenience as a result of the very loud music being played at the properties registered asTitle Numbers Ruiru East Block1/3255 and Ruiru East Block1/4290 at all hours of the day and night and they are also experiencing health challenges due to the stress occasioned by this harsh living environment, the inability to get any sleep at night while in their own homes due to the very loud music and their general living situation which has been rendered hostile due to the excessively loud music being played on the aforesaid properties;vii.The 2nd respondent has also failed and/or refused to provide parking for its customers as a result of which its customers park their cars along the road including in front of peoples' homes and consequently, the appellants and other persons residing within their compound have on several occasions been unable to access their home due to the 2nd respondent's customers parking their vehicles in front of the appellants' gate;viii.The appellants live with 2 of their grandchildren on the property Title Number Ruiru East Block1/3259; the children are unable to do any studies and/or attend to their homework in the evenings while at home due to the great noise emanating from the 2nd respondent's properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290;ix.The appellants apprehend that not only will the 2nd respondent continue operating its said bar/club thereby continue being a nuisance to them and the other people residing on the property Title Number Ruiru East Block 1/3259, the appellants further apprehend that the situation is likely to get even more loud and noisy and pose an even greater nuisance during the festive season over the Christmas and new year period unless suitable orders are issued by this honourable tribunal barring the 2nd respondent's action in continuing the operation of the bar/club on the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290;

6. The application is supported by the affidavit of Richard Kimani Kariukistating as follows:i.That the is the registered owner of the property Title Number Ruiru East Block1/3259 whereas the properties Title Numbers Ruiru East Block1/3255, Ruiru East Block1/4290 and Ruiru East Block1/3260 are registered in the name of Joseph Irungu Mburu.ii.That the above 4 properties are located next to each other.iii.That the 2nd respondent has been operating a hotel under the name and style of Bedarin Hotel on the property comprised in Title Number Ruiru East Block 1/3260 at all material times and also commenced operation of a bar/club on the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 from December 2020. iv.That the subject bar/club is being run from tented structures and there are powerful sound equipment that are used to entertain the revelers thereon by playing loud music at all hours of the day and night.v.That the 2nd respondent does not have a license to operate the bar/club on the properties Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 and the license issued in favour of the 2nd respondent is for operation of an events garden only.vi.That the 2nd respondent has failed and/or refused to install necessary protective structures that will contain the noise within its premises and as a result, his family and other people residing within his compound are being subjected to a grave nuisance due to the noise pollution emanating from the 2nd respondent’s properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290. vii.That several of their tenants have moved out of the houses that they are renting within the property comprised in Title Number Ruiru East Block1/3259 due to the noise emanating from the 2nd respondent's properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290. viii.That this family together with the other persons residing on his aforesaid compound are experiencing grave inconvenience as a result of the very loud music being played at the properties comprised in Title Numbers Ruiru East Block1/3255 and Ruiru East Block1/4290 at all hours of the day and night and they are also experiencing health challenges due to the stress occasioned by this harsh living environment, the inability to get any sleep at night while in their own homes due to the very loud music and the general living situation which has been rendered hostile due to the excessively loud music being played on the aforesaid properties and he is personally aware that the 1st appellant has had to take medication to control her blood pressure since the beginning of this year due to the aforenoted stressful living conditions.ix.That the 2nd respondent has also failed and/or refused to provide parking for its customers as a result of which its customers park their cars along the road including in front of peoples' homes and consequently, his family and other persons residing within his compound have on several occasions been unable to access their homes due to the 2nd respondent's customers parking their vehicles in front of his gate.x.That they live with 2 grandchildren who are of school going age on the property comprised in Title Number Ruiru East Block1/3259; the children are unable to do any studies and/or attend to their homework in the evenings while at home due to the great noise emanating from the 2nd respondent's properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290. xi.That they apprehend that not only will the 2nd respondent continue operating its said bar/club on the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 thereby causing a nuisance to them and other people residing on the property comprised in Title Number Ruiru East Block 1/3259, they further apprehend that the situation is likely to get even more loud and noisy and pose an even greater nuisance during the festive season over the Christmas and new year period unless suitable orders are issued by this Honourable Tribunal barring the 2nd respondent's action in continuing the operation of the bar/club on the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290. xii.That pending the hearing and determination of this application and of the appeal, together with the 2nd appellant they pray that this honourable tribunal does grant suitable orders barring the 2nd respondent from operating a bar/club and/or playing loud music at the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290. xiii.That the further prays that the orders issued by this honourable tribunal be enforced by theOCSGatongóra Police Station, to ensure that there is compliance thereof.xiv.That they will continue to suffer great prejudice and inconvenience unless the orders sought herein are granted.

7. The tribunal on December 10, 2021 issued the following orders:i.That the application dated December 8, 2021 is certified urgent and heard ex-parte in the first instance.ii.That the 2nd respondent is barred from continued operation of a bar/club and/or playing loud music at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 pending the hearing and determination of this application.iii.That the order No 2 shall be enforced by NEMA officers at Kiambu County together with Kiambu County inspectorate department who are to ensure compliance and for the noise pollution to be controlled and terminated from the premises.iv.That theOCS Gatong'ora police station to offer assistance to these County Officers shall it be necessary.v.That the orders are to be complied with and enforced with immediate effect. Copy of order and application to be served upon the 1st and 2nd respondents as well as Kiambu County Secretary offices and Kiambu inspectorate department for enforcement. A copy to be availed to OCSGatong'ora police station at the same time.vi.That upon service of the application, any party that wishes to oppose the application or reply shall do so within 21 days of service.vii.That the application be heard interpartes on January 25, 2022.

8. The appellants filed another application under a certificate of urgency dated January 19, 2022 for orders:i.That this application be certified as urgent and it be heardex-parte in the first instance;ii.That this honourable tribunal be pleased to issue suitable orders varying its orders of December 10, 2021 to provide that the County Commander Kiambu be directed to assist in enforcement of the orders of this tribunal of December 10, 2021;iii.That this honourable tribunal does issue any other orders as it may deem fit in the circumstances;iv.That the costs of this application be borne by the Respondents.

9. The application is premised on the grounds that:i.This honourable tribunal gave orders on December 10, 2021 barring the 2nd respondent from continuing operation of a bar/club and/or playing loud music at the properties Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 pending the hearing and determination of the application dated December 8, 2021. ii.The orders by the tribunal were issued on December 15, 2021 and served upon all concerned parties on December 15, 2021 and December 16, 2021. iii.There has been no compliance with the Order of December 10, 2021 as the 2nd respondent has continued operating the bar/club and playing loud music at the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 to date.iv.The applicants are greatly prejudiced by the 2nd respondent’s continued action and they apprehend that the same will continue unless suitable orders for enforcement are issued by the tribunal.

10. The application is supported by the affidavit of Richard Kimani Kariukistating as follows:i.That this honourable tribunal gave orders on December 10, 2021 which barred the 2nd respondent from continuing operation of a bar/club and/or playing loud music at the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 pending the hearing and determination of the application dated December 8, 2021. ii.That the orders by the tribunal were issued on December 10, 2021 and served upon all concerned parties on December 15, 2021 and December 16, 2021. iii.That there has been no compliance with the order of December 10, 2021 as the 2nd respondent has continued operating the bar/club and playing loud music at the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 to date.iv.That given the great inconvenience experienced by his family over the Christmas and new year season, he made enquiries at the offices of the Deputy County Commissioner on where best to seek assistance in enforcement of the tribunal's orders of December 10, 2021 and was advised to have the said Orders varied to the extent that they be directed to the County Commander Kiambu as currently, no assistance could be sought from the said Officer as the Tribunal’s Orders of December 10, 2021 were not directed to him.v.That they accordingly pray for variation of the Orders of this tribunal of December 10, 2021 to direct the County Commander Kiambu to assist in the enforcement thereof.vi.That he verily believes that no party will be prejudiced in the event that the orders sought herein are granted.vii.Tha he swears the affidavit in support of the application filed herewith and pray that the orders sought be granted.

11. The 1st respondent filed the replying affidavit sworn by Stephen W Kitunga dated February 10, 2022 and filed on February 18, 2022 stating as follows, inter alia:i.That prior to the institution of the suit herein, the 1st respondent received several complaints from the applicants and the residents of Kihunguro Gatong'ora Ward through letters alleging noise pollution emanating from the 2nd respondent's property.ii.That on April 14, 2021, Environmental Inspectors from the NEMA Kiambu office visited the affected site where they held a consultative meeting together with representatives of the neighborhood and the management of the 2nd respondent in an attempt to address the complaints raised by the neighbors.iii.That at the time, they observed that there was no noise pollution emanating from the 2nd respondent's premises as they had closed due to the Covid 19 restrictions that had been put in place by the Government.iv.That also, the Inspectors noted that the 2nd respondent was putting in place mitigation measures against the noise pollution by installing noise barriers and they informed the applicants herein and the residents of Kihunguro Gatong'ora Ward vide a letter dated April 26, 2021. v.That following the institution of this suit, the honourable tribunal issued orders on December 10, 2021 barring the 2nd respondent from continued operation of the bar/club and/or playing loud music at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 pending the hearing and determination of the application.vi.That further, the tribunal directed the 1st respondent's Kiambu office alongside the Kiambu County Inspectorate Department to ensure compliance with the stop order whose effect was to control the alleged noise pollution at the 2nd respondent's premises.vii.That consequently, two Environmental Inspectors from NEMA's Kiambu office visited the 2nd respondent's premises on December 22, 2021 in a bid to enforce the said orders where they made observations, among them that there was no loud music playing at the premises.viii.That notwithstanding, the Inspectors issued the 2nd respondent with an Environmental Restoration Order under section 108 (l) of EMCA requiring the management to comply with the tribunal's orders of December 10, 2021. ix.That on February 1, 2022, he wrote a concise letter to the 1st respondent's Director of Legal Services informing her that the NEMA Kiambu office had enforced the orders of the court as required; to enable her office to adequately report back to this honourable tribunal.x.That the 1st respondent has done its part in ensuring that the 2nd respondent complies with the orders of this honourable tribunal together with the conditions set out in the EIA License No NEMA/ EIÄ/PSR/21458. xi.He therefore prays that this honourable tribunal determines this application and the appeal as it deems just, fair and reasonable without slapping the 1st respondent with costs.

Submissions by the Parties Appellants’/ applicants’ submissions on their applications dated December 8, 2021 and January 19, 2022 12. The appellants’/applicants’ filed submissions dated February 15, 2022 in respect of their applications dated December 8, 2021 and January 19, 2022.

13. The appellants’/applicants’ submit that they have applied for interim orders seeking to bar the 2nd respondent from continuing operation of a bar/ club and/or playing loud music at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 pending the hearing and determination of these applications and the appeal.

14. The appellants’/applicants’ further submit that it is not disputed that 2nd appellant is the registered owner of the property comprised in Title Number Ruiru East Block 1/3259 whereas the properties comprised in Title Numbers Ruiru East Block 1/3255, Ruiru East Block 1/4290 and Ruiru East BlocK 1/3260 are registered in the name of Joseph Irungu Mburu; and that all 4 properties are located next to each other.

15. It is the appellants’/applicants’ submission that it is also not disputed that the said Joseph Irungu Mburu has been operating a hotel under the name and style of Bedarin Hotelon the property comprised in Title Number Ruiru East Block1/3260 at all material times.

16. The appellants’/applicants’ aver that the said Joseph Irungu Mburu commenced operation of a bar/ club on the properties registered as Title Numbers Ruiru East Block1/3255 and Ruiru East Block1/4290 from December 2020 to date, and that the subject bar/ club is being operated from tented structures and further, that there are powerful sound equipment that are used to entertain the revelers thereon by playing loud music at all hours of the day and night.

17. It is the submission of the appellants’/applicants’ that the 2nd respondent does not dispute that he is operating a bar/club and/or playing loud music on the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290.

18. The appellants’/applicants’ further aver that the 2nd respondent does not have a license to operate the bar/club on the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 and the license issued by the 1st respondent in favour of the 2nd respondent is for operation of an events garden only.

19. The appellants allege further that the 2nd respondent has failed and/or refused to install necessary protective structures that will contain the noise within its premises on the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 and as a result, the appellants, their family members and other people residing in their property are being subjected to a grave nuisance due to the noise pollution emanating from the 2nd respondent's aforesaid properties.

20. The appellants submit that they, their relatives and other persons residing on their property registered as Title Number Ruiru East Block1/3259 are experiencing grave inconvenience as a result of the very loud music being played at the properties registered as Title Numbers Ruiru East Block1/3255 andRuiru East Block1/4290 at all hours of the day and night and they are also experiencing health challenges due to the stress occasioned by this harsh living environment, the inability to get any sleep at night while in their own homes due to the very loud music and their general living situation which has been rendered hostile due to the excessively loud music being played on the aforesaid properties.

21. The appellants aver that they, their relatives and other persons residing on their property registered as Title Number Ruiru East Block1/3259 are experiencing grave inconvenience as a result of the very loud music being played at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block1/4290 at all hours of the day and night and they are also experiencing health challenges due to the stress occasioned by this harsh living environment, the inability to get any sleep at night while in their own homes due to the very loud music and their general living situation which has been rendered hostile due to the excessively loud music being played on the aforesaid properties.

22. The appellants submit that they produced, in support of the two applications, photographs showing the general location of the four properties and photographs showing the tented structures from where the bar/club is said to be operated by the 2nd respondent on the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290, promotion materials confirming that the bar and club were operating from the tented structures located on the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 and a copy of the Licence issued to the 2nd respondent by the 1st respondent with the conditions subject to which the Licence was issued noted thereon.

23. The appellants further submit that these exhibits confirm that the 2nd respondent is indeed operating a bar and club at the tented structures erected on the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 and that no effort has been made by the 2nd Respondent to contain the noise emanating therefrom.

24. The appellants invite this honourable tribunal to take note of several provisions of the licence issued to the 2nd respondent by the 1st respondent, including: That the Licence is for establishment of an events garden;

Clause 1. 4 of the Licence requires that all events at the events garden have an advance notification issued to the neighbouring community, public consultation and approval by the County Government of Kiambu;

Clause 1. 7 of the Licence states that the License shall not be taken as statutory defence against charges of pollution in respect of any manner of pollution not specified in the License.

Clause 3. 1 of the Licence provides that the proponent shall obtain outdoor events and noise and excessive vibration permits from the County Government of Kiambu for EACH organized event that shall be held at the garden;

Clause 3. 2 of the Licence provides that the proponent shall ensure that the garden is fitted with effective acoustic/ noise barriers to mitigate noise pollution and that all events shall operate within the permissible noise levels in accordance with the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009;

Clause 3. 6 of the Licence provides that the proponent and the garden event organizers shall safeguard the public and neighbouring residents against public nuisance, noise pollution and underage drugs and alcohol exposure risks, visual and privacy intrusion persons;

Clause 3. 7 of the Licence provides that the proponent shall put in place a comprehensive stakeholder's engagement plan and a grievance redress mechanism to redress any emerging issues, complaints and/or concerns from the public and neighbouring community. The event’s organizers shall undertake adequate public consultation with the immediate neighbours and seek their consent in organizing the public events that shall have adverse effects and risks to the community and environment. 25. It is the submission of the appellants that the 2nd respondent has failed and/or refused to comply with the above clauses of the license issued in its favour by the 1st respondent, among many other clauses; as a result of which the appellants and their family members and other persons residing on the property registered as Title Number Ruiru East Block 1/3259 have been exposed to grave noise pollution from the activities of the bar and club operating on the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290.

26. The appellants’ submit that the 2nd respondent, in its replying affidavit filed on January 24, 2022 never disputed the accuracy of the photographs and documents produced in support of the Applications. The 2nd respondent instead produced a licence issued in its favour by the County Government of Kiambu authorising the 2nd respondent "to sell alcoholic drinks on any day of the week to a lodger for his/her consumption and his/her guests consumption at the premises at any hour".

27. The appellants further submit that that the License issued by the County Government of Kiambu in favour of the 2nd respondent is for sale of alcohol to 'lodgers at the hotel and their guests' and not for operation of a bar/club.

28. It is the submission of the appellants that the Licence issued by the County Government of Kiambu in favour of the 2nd respondent also bears General Licence Conditions, among which clauses 7 - 9 provide, inter alia that:i.Avoid noise pollution and other related public nuisance.ii.Comply with laws and regulations governing management of the environment.iii.Comply with all County Laws and Regulations and other relevant National Laws.

29. The appellants submit that the said License does not authorise the 2nd respondent to run its operations in any manner that it deems fit but rather, the same must be done within the limits set by the licensing authority.

30. The appellants further submit that the 2nd respondent has put up a perimeter fence around the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290. However, the fence cannot be termed to act as an acoustic/ sound barrier.

31. It is the submission of the appellants that if the 2nd respondent had complied with the terms of either of the 2 licenses that have been issued in its favour, it would not be necessary for the appellants to file this matter seeking to compel the 2nd respondent to restrict its actions to what is permissible within the law.

32. The appellants rely on the decision of the East Africa Court of Appeal in Civil Appeal No 51 of 1972 - Giella V Cassman Brown& Co Ltdwhere the Court noted that an applicant in an injunction application must show a prima facie case with a probability of success and further demonstrate that the applicant will suffer irreparable injury in the event that the orders sought are not granted.

33. The appellants submit that in the present case, they have produced before this tribunal photographs which confirm that the 4 concerned properties are located right next to each other, that the 2nd respondent is operating a bar/club from tented structures and that the licences issued in favour of the 2nd respondent require that it takes measures to restrict the noise that emanates from his premises, which it has failed to do resulting in a grave noise nuisance to the appellants, their family members and all other persons residing within their property.

34. The appellants further submit that the noise pollution nuisance that they are currently being exposed to by the 2nd respondent is occasioning irreparable injury upon them which cannot be subsequently compensated for by way of damages or otherwise as it is affecting their health, they are unable to sleep at night which then affects their productivity during the day, tenants have moved out of the appellants' rental units due to the noise, the children residing with the appellants and their tenants have a hard time conducting their studies in the evenings. All these are injuries for which monetary compensation would not be adequate.

35. In the circumstances, the appellants urge this honourable tribunal to grant the orders sought in the application dated December 8, 2021.

36. The appellants further urge the tribunal to grant the orders sought in the application dated December 19, 2022 as the same is merely for purposes of enforcing compliance as the 2nd respondent has failed and/or refused to comply with the orders issued by the tribunal on December 10, 2021 despite having been served with the said orders on December 16, 2021.

37. The appellants submit that this application remains unopposed to date.

The 1st respondent’s submissions 38. The 1st respondent filed its submissions dated February 17, 2022 on February 18, 2022.

39. The 1st respondent submits that it filed its replying affidavit dated February 10, 2022, sworn by Stephen W Kitunga and premised on the grounds set out therein.

40. The 1st respondent further submits that other than relying on its replying affidavit, the 1st respondent concurs with the appellant/applicant's submissions to the extent that the application has met the 3-part test set down in the locus classicus case of Giella vs Cassman Brown & co LTD(1913) EA. 358.

41. It is the submission of the 1st respondent that to reiterate the contents of the replying affidavit, it has done its part in ensuring that the 2nd respondent complies with the orders of this honourable tribunal and the conditions set out in the EIA License No NEMA/EIA/PSR/21458.

42. It is the 1st Respondent’s prayer that the Honourable Tribunal determines this Application and the Appeal as it deems just, fair and reasonable without making an order for payment of costs against it.

The 2nd respondent’s submissions 43. The 2nd respondent filed its submissions dated March 1, 2022 on even date. On whether the applicants’ are entitled to the prayers sought therein it submits that it is but an established legal principle that whoever lays a claim before the court against another has the burden to prove it. The 2nd respondent places reliance on sections 107 and 109 of the Evidence Act that provides as follows:“…...107 "(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 the burden of proof lies on that person.109. "The burden of proof as to any particular fact lies 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….”

44. The 2nd respondent cites the case of Susan Mumbi vs Kefala Grebedhin (Nairobi HCCC No 332 of 1993) in support of its case. It also refers to The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14 in support of its case.

45. The 2nd respondent submits that the applicants’ purported stance that the 2nd respondent is illegally operating a club and/or bar without the pertinent license as the 2nd respondent's license was for events garden only; however, no evidence of this has been produced before this honorable court in support of this allegation.

46. The 2nd respondent further submit that on the contrary, it has furnished to this tribunal irrefutable proof of its legal capacity to operate the said bar and/or club videits production of an Alcoholic Drinks License ON/OFF License Reference No Brfoece 2043401, effectively paid for and issued to it by the Kiambu County Government in respect to the 2nd Respondent's premises situated at Thika Superhighway, Gatongora Ward, Ruiru sub-county, authorizing it to:“…..sell alcoholic drinks on any day of the week to a lodger-for his/her consumption and his/her guests consumption in the premises at any hour"

47. It submits that the license has since been renewed by the Kiambu County Government and issued under Reference number 0021601 on February 2, 2022, a license it to points out, that would not have been re-issued had it not been kept up to the requisite standards.

48. It is the 2nd respondent’s further submission that it is the applicants' unfounded averment that it is operating the club and/or bar and/or playing loud music, yet having failed and/or refused to install the necessary protective structures to contain the noise within its premises purportedly subjecting its neighbors to nuisance due to the noise pollution. This however, has proven to be further from the truth, considering that the 2nd Respondent in alignment to the law installed an acoustic screening wall, associated facilities and amenities to contain noise and excessive vibrations and mitigate noise pollution.

49. The 2nd respondent submits that it had the National Environment Management Authority (NEMA), conduct an Environmental Impact Assessment of its hotel premises in accordance with the Environment Impact Assessment and Audit Regulations, 2003 and thereafter obtained an Environment Impact License No NEMA/EIA IPSL/14144 certifying the same; as well as conducted a Baseline Noise Level survey and Occupational Noise Levels Assessment Survey Report of which not only established that, there were noise barriers in the premises but that;“Noise levels within the Hotel were within the occupational limits provided for under OSHA 2007. We noted that the noise outside the hotel regardless of the position was above the standards provided under EMCA 1999…. This indicated that the source of noise contributing to this high rate was either commercial activities or the road.”

50. The 2nd respondent further submits that despite their allegations, the Applicants have also in this regard failed to provide irrefutable proof of absence of Noise Reduction and/or Regulation equipment within the it's premises, or proof of the purported loud and untenable noise pollution by the 2nd Respondent.

51. The 2nd Respondent submits that it is also the Applicants' affirmation that it supposedly failed and/or out rightly refused to provide parking for its customers, as result of which the said customers park their vehicles on the road and in front of peoples' homes barring the Applicants' entry into the same. However, this ground as enumerated by the Applicants, is utterly misleading and its evidence un-substantive and shaky at best, and cannot be enough for this Honorable Court to sway its countenance in the Applicant’s favour.

52. It is the 2nd respondent’s submission that it has never at any one point in time whatsoever, denied, barred and or refused to provide parking for its guests and/or customers, considering that it's establishment and its facilities, provide a parking space of up to 120 vehicles, while the event garden can also be used for parking, providing an additional parking capacity of 50 vehicles. The same was further affirmed vide the Environmental Impact Assessment Comprehensive Project Report dated September 26, 2021.

53. It is the 2nd respondent’s further submission that it would therefore seem unlikely that with all this space, the 2nd respondent's patrons would result to parking in front of the applicants' houses. Should such allegations have been true, nothing would have been easier than to annex documented evidence of the same to this application in support of and/or in proof of their claim.

54. The 2nd respondent submits that the applicants have clearly failed to prove their case as against the it having not furnished this honorable tribunal with concrete irrefutable proof and/or adduced evidence in support of their allegations against it and have relied solely on their averments and assertions, all of which remain mere statements and cannot sustain their claim. On the other hand, the 2nd respondent's mountain evidence remains uncontroverted speaking to their innocence and law abidance in this matter.

55. The 2nd respondent further submits that a further marginal skim of the applicants' witness statements only serves to reveal hidden malice and/or bias held by the surrounding community of the 2nd respondent against its line of business, a reason to which no doubt, this application is truly founded on. The same is but prejudicial and discriminatory to the 2nd respondent, as it has resulted in a misplaced application which is but an abuse of the court process and the same is just but a mere ploy, deliberately sought by evasion or otherwise to obstruct, restrict, deny and/or prejudicially deprive the 2nd respondent of the legitimate right to peaceful use and enjoyment of its property as enshrined under the Constitution.

56. It is the 2nd respondent’s submission that it is trite that he who seeks equity must do equity and come with clean hands, yet the applicants herein have, in a duplicitous manner decided to peddle lies and exaggerated, unsubstantiated averments in an attempt to wrongfully obtain this honorable tribunal's discretion and sympathy whilst vilifying the 2nd respondent who have done nothing but abide by the law. The 2nd respondent cites the case of Kyangaro v Kenya Commercial Bank Ltd & Another (2004) 1 KLR 126}} as cited inPatrick Waweru Mwangi & Another v Housing Finance Co of Kenya Ltd (2013) eKLR at page 145 in support of its case.

57. It is the 2nd respondent’s further submission that the applicants have approached this honourable court with unclean hands by attempting to mislead this tribunal with their own warped unsubstantiated, prejudicial and incorrect account of events. Therefore, they are undeserving of the orders sought by nature of their being litigious, and therefore this honourable court ought to dismiss the application forthwith.

58. The 2nd respondent submits that this honorable tribunal ought in its wisdomatic wit, see through the smoke and mirrors the applicant has so flimsily placed before it and see the mala fides of the applicants and find the application thoroughly wanting in bona fides and frivolous, vexatious as well as oppressive and dismiss the same in toto.

59. With regard to costs of the suit, the 2nd respondent submits that it is well established that costs follow the event in any cause, action, matter or issue, upon its dismissal for being bad in law or bereft of merit as provided for under section 27 of the Civil Procedure Act. We see no reason to depart from this dictum.

60. In conclusion, the 2nd respondent submits that the application and more so the prayers sought therein are inequitable, unsustainable, grossly incompetent bad in law and fact and ought not to be entertained by this honorable court.

Issues for determination 61. Having considered the applications dated December 8, 2021 and January 19, 2022, the applicants’ witness statements, applicants’ submissions on their applications dated December 8, 2021 and January 19, 2022, the replying affidavit filed by the 1st respondent, the 1st respondent’s written submissions and the 2nd respondent’s written submissions, the tribunal has identified the following issues as arising from the application:i.Whether the applicants’ are entitled to the prayers sought in their applications dated December 8, 2021 and January 19, 2022; andii.What orders should the tribunal make?

1. Whether the Applicants’ are entitled to the prayers sought in their application dated 19. 1.2022 62. It is not in dispute that the applicants filed an application under a certificate of urgency dated December 8, 2021 for orders that:i.That this application be certified as urgent and it be heard ex-parte in the first instance;ii.That this honourable tribunal be pleased to issue suitable orders barring the 2nd respondent from continuing operating a bar/club and/or playing loud music at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 pending the hearing and determination of this application;iii.That this honourable tribunal be pleased to issue suitable orders barring the 2nd respondent from continuing operating a bar/ club and/or playing loud music at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/ 4290 pending the hearing and determination of this appeal;iv.That the OCS Gatongóra Police Station be directed to enforce compliance with the orders of this honourable tribunal;v.That the costs of this application be borne by the respondents; andvi.That this honourable tribunal does issue any other orders as it may deem fit in the circumstances.

63. This tribunal on December 10, 2021 issued the following orders:i.That the application dated December 8, 2021 is certified urgent and heardex-parte in the first instance.ii.That the 2nd respondent is barred from continued operation of a bar/club and/or playing loud music at the properties registered as Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 pending the hearing and determination of this application.iii.That the order No2 shall be enforced byNEMA officers at Kiambu County together with Kiambu County inspectorate department who are to ensure compliance and for the noise pollution to be controlled and terminated from the premises.iv.That theOCSGatong'ora police station to offer assistance to these County offices shall it be necessary.v.That the orders are to be complied with and enforced with immediate effect. copy of order and application to be served upon the 1st and 2nd respondents as well as Kiambu County Secretary offices and Kiambu inspectorate department for enforcement. A copy to be availed toOCS Gatong'ora police station at the same time.vi.That upon service of the application, any party that wishes to oppose the application or reply shall do so within 21 days of service.vii.That the application be heard interpartes on January 25, 2022.

64. The appellants filed another application under a certificate of urgency dated January 19, 2022 for orders:i.That this application be certified as urgent and it be heard ex-parte in the first instance;ii.That this honourable tribunal be pleased to issue suitable orders varying its orders of December 10, 2021 to provide that the County Commander Kiambu be directed to assist in enforcement of the orders of this tribunal of December 10, 2021;iii.That this honourable tribunal does issue any other orders as it may deem fit in the circumstances; andiv.That the costs of this application be borne by the respondents.

65. The conditions for the granting of an interlocutory injunction were laid down in the locus classicuscase Giella v Cassman Brown & Co Ltd [1973] EA 358 at pg 360, it was stated as follows: -“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

66. The applicants filed seven (7) witness statements where all the witnesses stated, inter alia, that the 2nd respondent is operating a bar/club from a tented structure and the noise is felt in the applicants’ home making communication difficult. The 2nd applicant also stated how she experienced several health challenges key among them being blood pressure and she even considered leaving her matrimonial home in a bid to resolve the health issues. Additionally, the witnesses pointed out that their efforts to have their issues resolved by the 2nd respondent have been futile.

67. The 1st respondent vide its replying affidavit dated February 17, 2022 at paragraph 3 submits that:‘………the 1st respondent concurs with the appellant/applicant's submissions to the extent that the application has met the 3-part test set down in thelocus classicus case ofGiella vs Cassman Brown & co LTD (1913) EA 358. ‘

68. The tribunal takes note of the following provisions of the licence issued to the 2nd respondent by the 1st respondent, inter alia: Clause 1. 1 That the Licence is for establishment of an events garden;

Clause 1. 4 of the Licence requires that all events at the events garden have an advance notification issued to the neighbouring community, public consultation and approval by the County Government of Kiambu;

Clause 1. 7 of the Licence states that the License shall not be taken as statutory defence against charges of pollution in respect of any manner of pollution not specified in the License.

Clause 3. 1 of the Licence provides that the proponent shall obtain outdoor events and noise and excessive vibration permits from the County Government of Kiambu for each organized event that shall be held at the garden;

Clause 3. 2 of the Licence provides that the proponent shall ensure that the garden is fitted with effective acoustic/ noise barriers to mitigate noise pollution and that all events shall operate within the permissible noise levels in accordance with the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009;

Clause 3. 6 of the Licence provides that the proponent and the garden event organizers shall safeguard the public and neighbouring residents against public nuisance, noise pollution and underage drugs and alcohol exposure risks, visual and privacy intrusion persons;

Clause 3. 7 of the Licence provides that the proponent shall put in place a comprehensive stakeholder's engagement plan and a grievance redress mechanism to redress any emerging issues, complaints and/or concerns from the public and neighbouring community. The events organizers shall undertake adequate public consultation with the immediate neighbours and seek their consent in organizing the public events that shall have adverse events and risks to the community and environment.

69. The applicants have demonstrated that the 2nd respondent has not complied with the conditions of the EIA License issued by the 1st respondent. It’s operations constitute a flagrant breach of the applicants’ right to a clean, healthy and habitable environment.

70. Upon assessing the evidence adduced by the parties and the circumstances giving rise to the applications before this tribunal we find that the applications are merited. The applicants are entitled to the orders sought in the applications dated December 8, 2021 and January 19, 2022.

2. What Orders Should the Honourable Tribunal make? 71. For the above reasons, the tribunal makes the following orders:i.That the 2nd respondent is hereby barred from operating a bar/club and/or playing loud music at the properties comprised in Title Numbers Ruiru East Block 1/3255 and Ruiru East Block 1/4290 or any property within close proximity of the Applicant’s property pending the hearing and determination of the appellants/applicants appeal.ii.That the order No 1 shall be enforced with immediate effect by NEMA officers at Kiambu County together with Kiambu County inspectorate department who shall ensure strict compliance with this order.iii.That the Police County Commander, Kiambu shall accord all necessary assistance in enforcement of the orders of this tribunal;iv.The Applicants shall serve this order upon the 1st and 2nd Respondents, the County Secretary, Kiambu County, Kiambu Inspectorate Department and the Police County Commander, Kiambu for enforcement.v.That the appeal shall proceed to be heard on merit; andvi.Incidence of costs shall be determined in the appeal.

72. Parties’ attention is drawn to provisions of section 130 of the Environment Management and Co-Ordination Act.

DATED AT NAIROBI THIS 9th DAY OF September 2022MOHAMMED S BALALA................CHAIRPERSONCHRISTINE KIPSANG.....................MEMBERBAHATI MWAMUYE.......................MEMBERWAITHAKA NGARUIYA.....................MEMBERKARIUKI MUIGUA.........................MEMBER