[2021] KEELC 869 (KLR)
The court found that the plaintiff/applicant failed to provide sufficient evidence to support the allegations of noise pollution and its impact on tenants. Specifically, the applicant did not present any expert report quantifying the noise generated by the defendants, nor was there evidence that tenants had vacated...
Source-derived case information.
- Citation
- [2021] KEELC 869 (KLR)
- Parties
- Applicant: Magi Holdings Limited; Respondent: Jesus Manifestation Church; Respondent: Prince William Mwangangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 131 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Interlocutory Injunctions, Noise Pollution, Nuisance, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Magi Holdings Limited
Applicant
Jesus Manifestation Church
Respondent
Prince William Mwangangi
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff/applicant is entitled to a temporary injunction restraining the 2nd defendant from holding night crusades near the plaintiff's residential houses.
- 2 Whether the plaintiff/applicant has provided sufficient evidence of noise pollution and its impact on tenants.
Ratio Decidendi
The court found that the plaintiff/applicant failed to provide sufficient evidence to support the allegations of noise pollution and its impact on tenants. Specifically, the applicant did not present any expert report quantifying the noise generated by the defendants, nor was there evidence that tenants had vacated the premises due to the alleged nuisance. The court emphasized that the burden of proof rests on the party alleging harm, and such proof was lacking in this application. Consequently, the court held that the applicant had not demonstrated a prima facie case or entitlement to the interlocutory injunction sought. The application was therefore dismissed with costs to the 2nd...
Court Disposition
application dismissed
Orders
- The notice of motion dated 28th February 2020 is dismissed with costs to the 2nd defendant.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 131 OF 2019
MAGI HOLDINGS LIMITED..................................PLAINTIFF/APPLICANT
=VERSUS=
JESUS MANIFESTATION CHURCH......DEFENDANT/1ST RESPONDENT
PRINCE WILLIAM MWANGANGI...............DEFENDANT/RESPONDENT
RULING
1. This is the Notice of Motion dated 28th February 2020 brought under section 1A, (1), (2), 3A, 63 (c) and (e) of the Civil procedure Act (Cap 21), and orders 40 rules 1(A), 3, 4(1) of the Civil Procedure Rules (2010) and all other enabling provisions of the law.
2. It seeks orders:-
1. Spent.
2. Spent.
3. That pending the hearing and determination of the main suit, this honourable court be pleased to grant the plaintiff/applicant a temporary order of injunction directed at the 2nd defendant alone, his servants or agents or nominees or through any person claiming a right through or under him compelling the 2nd Defendant to stop holding crusades at night on LR NO 57/882 which is within a radius of 30 metres next to the Plaintiff’s residential houses constructed on LR NO 57/881, located at Kasarani, Off Thika Road within Nairobi Country.
4. Cost of this application be provided for.
3. The grounds are on the face of the Application and are set out in paragraphs 1 to 4.
4. The application is supported by the affidavit of Elizabeth Wanjiku Nguchuga, the Plaintiff/Applicant herein, sworn on the 28th February 2020.
5. On the 22nd July 2020 the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.
6. I have considered the notice of motion and the affidavit in support. I have also considered the replying affidavit and the submissions filed on behalf of the parties. The issue for determination is whether this application is merited.
7. It is the Plaintiff’s/Applicant’s case that the noise generated from preaching, singing and shouting by the Church has affected the tenants on the Plaintiff’s premises. It is stated that tenants have threatened to vacate.
8. The 2nd Defendant/Respondent on the other hand states that Church activities have been conducted in a modest way. Further that there have been no night crusades owing to the Covid 19 protocols which are in place.
9. The Plaintiff/Applicant raises issues of noise pollution and that as a result her tenants have threatened to vacate the premises.
10. Whoever alleges must prove. It is incumbent upon the Plaintiff/Applicant to place before this court the quantification of noise generated by the 1st Defendant. She ought to have engaged the services of expert to prepare a report. In any case this would be evidence that is likely to be tendered at the trial.
11. There is no evidence that some tenants have vacated owing to the alleged noise.
12. In conclusion, I find that the Plaintiff/Applicant has failed to demonstrate that she deserves the orders sought. I find no merit in this application and the same is dismissed with costs to the 2nd Defendant.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI ON THIS 18TH DAY OF NOVEMBER 2021.
.........................
L. KOMINGOI
JUDGE
In the presence of:-
No appearance for the Plaintiff
No appearance for the Defendant
Steve - Court Assistant