https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3093

Maina v Aura Sable Limited & 2 others (Environment and Planning Petition E002 of 2026) [2026] KEELC 3093 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3093 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Planning Petition E002 of 2026 JA Mogeni, J May 21, 2026 IN THE MATTER OF ARTICLES 1(3) &(4), 2(1) & (4) 3(1), 20, 21, 22, 23, 24, 48, 50(1), 70, 159(2), 162(2) (B) & (3), 184, 258 AND PART 2 OF THE FOURTH SCHEDULE OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF INFRINGEMENT AND VIOLATION OF ARTICLES 10(1), & (2), 35, 42, 43, 47, 69, 73(2) AND 232 OF THE CONSTITUTION AND IN THE MATTER OF SECTIONS 4, 13, 18 AND 19 OF THE ENVIRONMENT AND LAND COURT ACT AND IN THE MATTER OF SECTIONS 2, 3, 58, 101, 102 AND 103 OF THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION (NOISE AND EXCESSIVE VIBRATION POLLUTION) (CONTROL) REGULATIONS AND IN THE MATTER OF NOISE POLLUTION BY AURA SABLE LOUNGE SITUATED AROUND EXIT 13 ALONG THIKA ROAD Between Selina Wanjiku Maina Petitioner and Aura Sable Limited 1st Respondent The Kiambu County Government 2nd Respondent National Environmental Management Authority 3rd Respondent Ruling 1.The matter before this Court is a clash between the right to a clean and healthy environment as envisioned under Article 42 of the Constitution and the commercial interests of a licensed business entity. The Applicant, Selina Wanjiku Maina, moves this Court seeking conservatory and injunctive orders to restrain Aura Sable Lounge from emitting noise which she characterizes as torture. Conversely, the 1st Respondent, represented by Isaac Mwangi Njoroge, maintains that the business is a lawful, compliant enterprise fronting a busy highway where ambient noise level is naturally high. 2.This conflict has found its way to Court and the Applicant vide the Notice of Motion Application dated 13/04/2026 filed pursuant to Article 70 of the Constitution of Kenya, 2010; Section 3 of the Environmental Management and Co-ordination Act; Section 13 of the Environment and Land Court Act; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all other enabling provisions of the law) seeks the following:1.Spent. 2.Pending the inter partes hearing of this application, a temporary injunction be issued restraining the 1st Respondent, either by itself, its servants and/or agents, from emitting noise pollution or in any way interfering with the Petitioner/Applicant's right to a clean and healthy environment. 3.Pending the hearing and determination of this application, a temporary injunction be issued restraining the 1st Respondent, either by itself, its servants and/or agents, from emitting noise pollution or in any way interfering with the Petitioner/Applicant's right to a clean and healthy environment. 4.Pending the hearing and determination of the Petition filed herewith, a temporary injunction be issued restraining the 1st Respondent, either by itself, its servants and/or agents, from emitting noise pollution or in any way interfering with the Petitioner/Applicant's right to a clean and healthy environment.5.The OCS Theta Police Station, or any other police station that is nearer to the premises, be ordered to implement the interim orders restraining the 1st Respondent, its servants and/or agents, from emitting noise pollution or in any way interfering with the Petitioner/Applicant's right to a healthy and clean environment.6.This Honourable Court be pleased to issue any other orders it deems just and fit in the circumstances. 3.The Application is based on the following grounds set out on the Application notably that;a.The primary contention is the continuous infringement upon the Petitioner’s and residents' right to a clean and healthy environment as guaranteed under the Constitution.b.The 1st Respondent (Aura Sable Lounge) is operating an entertainment joint within a residential area being Kimbo, Ruiru, emitting incessant and intolerable noise during night hours.c.The noise pollution has deprived the community of peace, tranquility, and sleep, thereby adversely affecting their health and general well-being.d.The Petitioner has attempted to resolve the matter amicably through direct requests and formal demand letters dated 29/12/2025, but the Respondent has remained dismissive.e.Previous reports to the police have failed to yield lasting results, as the Respondent habitually increases the volume immediately after police departure.f.The Applicant asserts that they have established a strong case with a high likelihood of success, and the balance of convenience tilts in favor of protecting the residents' health over the Respondent’s commercial activities.g.There is an urgent need for judicial intervention to forestall further torture and environmental violations in the interest of justice and the public good. 4.The Application is opposed vide a Replying Affidavit sworn on 21/04/2026 by ISAAC MWANGI NJOROGE, a Director of the 1st Respondent, who deponed that the Petitioner’s application is a gross misdirection and an abuse of the Court process. He stated that the 1st Respondent is the lawful proprietor of Aura Sable Lounge, a bar and restaurant business situated along Thika Super Highway, which is duly licensed by the County Government of Kiambu to operate as such, with all relevant permits and payment receipts annexed hereto and marked “IMN1A”. 5.That contrary to the Petitioner's allegations, the Business is strategically located between a godown and a Petrol Station, fronting a major highway where ambient noise and vibrations often exceed those generated by the lounge, as shown in the satellite image annexed and marked “IMN2A”. 6.Upon being notified of noise complaints, the 1st Respondent proactively engaged with the County Environment Officer and the Noise Pollution and Excessive Vibration Control Unit, who conducted various inspections. Further that following a directive from the County Government dated 22/11/2025, annexed as “IMN3A”, the 1st Respondent demonstrated exemplary compliance by preparing a noise management plan, soundproofing the premises, and reducing speaker output, as evidenced by the plan annexed and marked “IMN4A”. While a subsequent assessment report dated 25/01/ 2026 annexed as “IMN5A” suggested further measures, additional corrective actions were taken, culminating in a follow-up report dated 20/04/2026, annexed as “IMN6A”, which confirms that the business is now fully compliant with all applicable noise control standards. 7.It is the contention of the 1st Respondent that the Petitioner’s case is built on mere speculation and lacks the requisite threshold of a prima facie case, as she has failed to disclose her exact residence, provide expert noise measurements, or produce any police abstracts to support her claims. Furthermore, the Petitioner has ignored the comprehensive statutory and administrative dispute resolution mechanisms provided under the Environmental Management and Co-ordination Act and the 2009 Noise Regulations. 8.That the 1st Respondent stands to suffer irreparable commercial prejudice if an injunction is granted against its compliant operations, whereas the public interest is already served by the ongoing regulatory oversight of the 2nd and 3rd Respondents. Consequently, this Honourable Court is urged to find the application misconceived and dismiss the same with costs. 9.In response to the Replying Affidavit the Applicant filed a Supplementary Affidavit sworn on 29/04/2026 by the Applicant Selina Wanjiku Maina. 10.The Petitioner, depone through the Supplementary Affidavit that the 1st Respondent in the Replying Affidavit has been economical with the truth regarding the Business's location. Contrary to the 1st Respondent’s depiction, the entertainment joint is in immediate proximity to densely populated residential buildings, including Pacesetters Meadows, Samtha, and Petnah Apartments, as clearly demonstrated in the satellite image annexed hereto and marked “SWM-S1”. The Petitioner/Applicant further avers that the Respondent’s own admission of multiple inspections and directed mitigation measures confirms the existence of a prima facie case of noise pollution, while the purported compliance report of 20/04/2026 is a self-serving document procured in bad faith only after the commencement of these legal proceedings. 11.That the 1st Respondent’s challenge to the lack of expert evidence is contradictory and legally untenable, as she is advised that under Regulation 6 of the Noise and Excessive Vibration Pollution (Control) Regulations, the mandate to conduct technical noise measurements lies solely with the 2nd and 3rd Respondents or their authorized agents. It is further deponed that since the filing of this suit, the 1st Respondent has, in a show of utmost bad faith, deliberately increased the volume of the music to intolerable levels, causing further distress to the residents of Kimbo. The noise complained of squarely meets the criteria for unreasonable and unnecessary nuisance as set out under Regulation 3(2) of the said Regulations, necessitating urgent judicial intervention. 12.In the premises, the balance of convenience heavily tilts in favor of the Petitioner and the public interest, as the right to a clean and healthy environment is a fundamental Constitutional guarantee that outweighs the 1st Respondent’s commercial interests. I reiterate that the 1st Respondent stands to suffer no legal prejudice by being ordered to operate within the strict confines of the law, whereas the Petitioner and the residents continue to endure a gross violation of their rights. 13.It is the prayer of the Petitioner/Applicant that this Honourable Court finds the application dated 13/04/2026 meritorious and grants the interim orders as prayed to forestall further environmental degradation. 14.When parties appeared in Court on 30/04/2026, the Court issued a temporary injunction and being an environmental matter fast tracked the hearing of the Application which was canvassed by way of written submissions. The Applicant filed written submissions dated 6/05/2026. I have considered the submissions filed. Analysis and Determination 15.The central issue for determination is whether the Applicant has met the threshold for the grant of a temporary injunction as established in the celebrated case of Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358. This requires the Applicant to establish a prima facie case with a probability of success, demonstrate that she will suffer irreparable injury which cannot be adequately compensated by an award of damages, and finally, if the Court is in doubt, decide the matter on a balance of convenience. In the context of environmental law, this Court is further guided by the Precautionary Principle and the principle of Sustainable Development as articulated in Section 3 of the Environmental Management and Co-ordination Act (EMCA). 16.In evaluating whether a prima facie case exists, the Court notes the 1st Respondent’s own admission in their Replying Affidavit regarding the series of compliance notices and failed inspections between November 2025 and January 2026. While the Respondent relies on a compliance report dated 20/04/2026 marked as annexure “IMN6A”, this Court finds the timing of said report, coming only after the commencement of litigation, to be a matter of evidentiary suspicion. The Applicant’s satellite image marked as annexure “SWM-S1” effectively counters the Respondent’s narrative by showing the Lounge’s immediate proximity to residential apartments like Pacesetters Meadows. As held by my brother Justice Angote in Kenya Association of Residential Associations (KARA) -vs- Director General NEMA & 2 Others [2013] eKLR:“The right to a clean and healthy environment is not a favor from the state or the Respondents, but a fundamental right. Establishments must realize that the right to operate a business does not include the right to pollute the environment or disturb the peace of residents." 17.Regarding the 1st Respondent’s contention that the Applicant lacks expert noise readings, this Court finds such a requirement at this interlocutory stage to be an unnecessary clog on the wheels of justice. Regulation 6 of the Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009, vests the power of measurement in the authorities, and a citizen’s subjective experience of intolerable noise is sufficient to move the Court for protection. As noted in professional environmental jurisprudence, noise pollution is a silent killer that affects mental health and cardiac well-being; it is not a triviality of loud music but a violation of bodily integrity. 18.The balance of convenience in this matter heavily favors the Applicant. While the 1st Respondent argues that an injunction will cause commercial prejudice, this Court reminds the 1st Respondent that the precautionary principle shifts the focus from immediate economic loss to the long-term risk of irreversible environmental harm. Thus, potential commercial prejudice is outweighed by Constitutional obligations to protect the environment for future generations. 19.Additionally, the Constitution for example under Article 69 emphasizes ecologically sustainable development, meaning commercial operations must not take precedence over ecological integrity. 20.In Peter K. Waweru v Republic [2006] eKLR (Misc. Civil Application No. 118 of 2004) the Court held that when environmental protection and economic interests clash, the environment must prevail because ecological damage is often irreversible. The three judges (Justice Joseph Gregory Nyamu, Justice Mathew John Anyara Emukule, and Justice Mohamed Ibrahim) interpreted the Right to Life which was Section 71 of the old Constitution to include the Right to a Clean and Healthy Environment, arguing that life cannot be sustained without a healthy ecological system. Let me add that this case integrated international environmental principles such as the Precautionary Principle, Polluter Pays Principle, and Public Trust Doctrine into Kenyan domestic law before the new Constitution was written. It is in this case that the Court ruled that the government holds natural resources in trust for the public and has a mandatory duty to protect them. 21.I could go on and on but I think I have said enough to anchor my final decision. 22.The 1st Respondent’s claim that they have soundproofed the premises must be proven through continued compliance, not merely by resisting an order to remain quiet. If indeed they are compliant as they claim, then an order to maintain noise within legal limits causes them no prejudice at all. Disposal Orders 23.This Court finds that the Applicant has established a strong prima facie case of a continuing violation of her Constitutional rights. The evidence suggests that despite regulatory interventions, the nuisance persists, and the Respondent's bad faith in increasing volumes post-filing cannot be ignored. 24.Accordingly, the Court makes the following orders:i.The Application dated 13/04/2026 is hereby allowed.ii.A Temporary Injunction is hereby issued restraining the 1st Respondent, either by itself, its servants, and/or agents, from emitting noise pollution or in any way exceeding the permissible noise levels as set out in the Environmental Management and Co-ordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009, pending the hearing and determination of the Petition.iii.The OCS Theta Police Station is hereby directed to provide the necessary enforcement assistance to the 2nd and 3rd Respondents to ensure the 1st Respondent’s strict compliance with this Order and the applicable noise regulations.iv.The 2nd and 3rd Respondents are directed to conduct fortnightly impromptu noise level monitoring at the 1st Respondent's premises and file a status report in this Court every thirty (30) days until the Petition is determined. This to be done under the supervision of the Deputy Registrar, Environment and Land Court, Thika. v.The costs of this Application shall be in the cause of the Petition.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 21ST DAY OF MAY, 2026.………………………MOGENI JJUDGEIn the presence of:Mr. Murunga Makau for the PetitionerMr. Gichuki Nderitu for the 1st Respondent2nd and 3rd Respondents - AbsentMr. Melita - Court Assistant………………………MOGENI JJUDGE