REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELCL PETITION NO. E004 OF 2025
IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS OF INDIVIDUALS UNDER THE BILL OF RIGHTS OF THE CONSTITUTION OF KENYA
-AND-
UNDER ARTICLES 42 AND 70 OF THE CONSTITUTION
-AND-
IN THE MATTER OF ALLEGED SOUND POLLUTION IN RELATION WITH REGULATION 3(1) AND (2) OF THE ENVIRONMENTAL MANAGEMENT AND COORDINATION (NOISE AND EXCESSIVE VIBRATION POLLUTION CONTROL) REGULATIONS, 2019
-AND-
IN THE MATTER OF THE FAIR ADMINSTRATIVE ACTION ACT, 2015
-BETWEEN-
DIXON KYUMBU MWOSE (Suing as the legal administrator of the estate of SAMSON MWOSE NDETO) …………………….PETITIONER/APPLICANT
-VERSUS-
JOHN KARIUKI NJERI T/A
VINTAGE BAR AND RESTAURANT …………………….1ST RESPONDENT
COUNTY GOVERNEMNT OF MAKUENI ........................2ND RESPONDENT
NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY...........................................................................3RD RESPONDENT
OFFICER COMMANING POLICE DIVISION,
MBOONI SUB-COUNTY ......................................................4TH RESPONDENT
RULING
1. The Petitioner/Applicant filed the Notice of Motion dated 6th May, 2025 under the provisions of Rules 4,5,13 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules seeking the following orders: -
1) [SPENT]
2) [SPENT]
3) Pending the hearing and determination of the Petition herein, a conservatory order be issued restraining the 1st Respondent from engaging in any activities leading to excessive noise pollution at Vintage Bar and Restaurant located within Kikima.
4) THAT the 2nd, 3rd and 4th Respondents be ordered to enforce orders 2 and 3 above.
5) Such further or other orders be issued as this Honourable Court shall deem just and expedient in the circumstances.
6) Costs of this application be in the cause.
2. The application is premised upon the grounds appearing on its face in addition to the supporting affidavit of Dixon Kyumbu Mwose sworn on even date. The deponent averred that he resides in land Parcel No. MBOONI/MUTITU/4089 within Kikima Town and that he neighbours a night club operated by the 1st Respondent. He lamented that the 1st Respondent has been producing loud noise which exceeds the recommended noise levels by the 3rd Respondent through live bands between the hours of 9pm and 6am. He contended that the loud music by the 1st Respondent has been disrupting his peaceful enjoyment of his property during the night hours.
3. The Applicant maintained that he had made formal complaints to the 2nd, 3rd and 4th Respondents but the issue had not been resolved. He further averred that the noise pollution caused by the 1st Respondent constitutes a violation of his constitutional right under Article 42 of the Constitution and that the 2nd, 3rd and 4th Respondents have a mandate to protect his constitutional right. He urged the court to issue the orders as sought.
4. Opposing the application, the 1st Respondent filed a replying affidavit sworn by John Kariuki Njeri on 18th May, 2025. He averred that the Petitioner’s allegations that the 1st Respondent has been causing excessive noise pollution are baseless and without any evidence. He further averred that the Petitioner had not demonstrated what constitutes noise beyond permissible levels and hence the orders sought are vague.
5. It was contended that when the night club was established, the 1st Respondent undertook extensive soundproofing of the premises with the installation of professional-grade acoustic materials which mitigate against any sound leakage to ensure compliance with all the relevant regulations. He further contended that sometimes in the year 2024, officers from the 3rd Respondent conducted a routine inspection of the premises and confirmed that the noise levels were not excessive and that they were within the acceptable limits.
6. The 1st Respondent contended that the Petitioner had not demonstrated a prima facie case which warrants the orders sought nor had he shown that he was set to suffer irreparable harm. He urged the court to dismiss the application with costs.
7. The 2nd Respondent filed a replying affidavit sworn by Dr. Geoffrey Muthoka on 28th May, 2025. He averred that he is the Chief Officer of the 2nd Respondent and that having read the Petition, it was his conclusion that the same was not drawn with precision and clarity in order to decipher the alleged violations of the Constitution. He observed that the Petitioner had not produced a noise meter reading in relation to the alleged noise pollution.
8. It was contended that the 2nd Respondent undertook an inspection of the 1st Respondent on 27th January, 2025 in the presence of the Ag. Ward Administrator Mbooni and the Revenue Officer of Kikima but the Petitioner was not present to give his side of the story. It was further contended that upon conclusion of their inspection, the 2nd Respondent observed that loud noise was experienced on 6th December, 2024 when the night club was opened and on 31st December, 2025 when the 1st Respondent hosted a live band. The deponent observed that the 1st Respondent’s neighbours did not have any issue concerning the noise levels on the two occasions.
9. The 2nd Respondent averred that it is ready and willing to conduct another joint inspection of the 1st Respondent’s premises at the Petitioner’s expense and a report to be filed before a final determination of the case is made. The 2nd Respondent urged the court to dismiss the application.
10. The Petitioner filed a supplementary affidavit on 17th June, 2025. He averred that his prayer to this court was for the 1st Respondent to minimize noise levels from his establishment and not for the closure of the business. That there had been numerous musicians who had performed live music at the establishment which run for an entire night and if the orders sought are not issued, the Petitioner and his family shall suffer irreparable harm.
11. The application was disposed of by way of written submissions.
12. In the Petitioner’s submissions dated 19th June, 2025, Counsel contended that the Petitioner had demonstrated a prima facie case with a likelihood of success. It was argued that the Petitioner lives in close proximity with the 1st Respondent’s establishment adding that he had availed letters indicating persistent noise levels exceeding permissible decibel limits under Regulation 4 of the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations 2019. It was submitted that the 1st Respondent had failed to adhere to a valid noise permit and continues to operate with reckless disregard for the rights of nearby residents.
13. Urging the court to allow the application, Counsel cited the case of Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR to buttress his submission.
14. The 1st Respondent filed his submissions dated 1st October, 2025. On his behalf, Counsel identified two issues for determination: -
a) Whether the Petitioner/Applicant’s application discloses a constitutional violation with precision?
b) Whether the Petitioner/Applicant has met the legal threshold for the grant of conservatory orders?
15. It was argued that the Applicant had made unsubstantiated allegations that the 1st Respondent’s club produces excessive noise without citing any scientific report, statutory threshold or factual basis demonstrating breach of environmental standards or infringement of constitutional rights. Counsel cited the case of Anarita Karimi Njeru v Republic [1976 – 1980] KLR 1272 in support of the submission that the application lacks precision on the alleged acts complained of.
16. On the second issue, Counsel contended that the Applicant had not adduced any credible evidence to demonstrate that the 1st Respondent’s operations exceed the permissible noise limits established under the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009. It was submitted that in the absence of a report from NEMA depicting noise pollution, then the claim by the Applicant should fail. Counsel submitted that the Applicant had not demonstrated a prima facie case.
17. It was further submitted that the Applicant had not demonstrated that he stands to suffer actual and irreparable harm that cannot be compensated by damages. Counsel urged the court to dismiss the application with costs.
18. The 2nd Respondent filed its submissions dated 6th October, 2025. On its behalf, Counsel submitted that the Applicant had not demonstrated with precision evidence of the alleged violation to the Constitution. Counsel further submitted that the allegations of noise pollution arise from the actions of the 1st Respondent and thus the 2nd Respondent cannot be held liable for the actions of another party. It was submitted that the application should be dismissed with costs.
19. The only issue for determination is whether the Applicant has demonstrated that he is entitled to conservatory orders pending the hearing and determination of the Petition.
20. The test for granting the conservatory orders was laid down in the decision of the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR. The following excerpt of the learned Judges’ findings is especially succinct: -
“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” [emphasis added]
21. In Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR Justice G.V. Odunga (as he then was) held as follows: -
“What then are the circumstances under which the Court grants conservatory orders? It has been held that in considering an application for conservatory orders, the court is not called upon to make any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition. At this stage the applicant is only required to establish a prima facie case with a likelihood of success. Accordingly in determining this application, the Court is not required-indeed it is forbidden- from making definite and conclusive findings on either fact or law. I will therefore refrain from making any determinations whose effect would be to prejudice the hearing of the main Petition. However, apart from establishing a prima facie case, the applicant must further demonstrate that unless the conservatory order is granted there is real danger which may be prejudicial to him or her. See Centre for Rights, Education and Awareness (CREAW) & 7 others vs. The Hon. Attorney General, Nairobi HC Pet. No 16/2011, Muslims for Human Rights (MUHURI) & 2 others vs. The Attorney General & Judicial Service Commission, Mombasa HC Pet. No. 7 of 2011 and V/D Berg Roses Kenya Limited & Another vs. Attorney General & 2 Others [2012] eKLR.”
22. The Applicant herein must demonstrate that he has a prima facie case against the Respondents and that in the event the conservatory orders sought are denied, he will suffer irreparable injury on the alleged constitutional violations alleged to have occurred or that have been threatened.
23. A prima facie case was defined in Mrao Ltd v. First American Bank of Kenya Ltd & 2 Other [2003] eKLR, in the following terms: -
“a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
24. The Applicant adduced letters, Exhibits 3(a),3(b) that were addressed to the Respondents expressing their disgruntlement with the noise that was allegedly emanating from the 1st Respondent’s establishment. At paragraph 7 of his affidavit, the Applicant stated that no report was compiled nor any action taken to resolve the noise complaint.
25. The Applicant has not adduced a report of any investigations that may have been carried out by the 3rd Respondent or an authorized agent. Having failed to do so, this court has no reference point on which an evaluation as to the veracity of the allegations made against the 1st Respondent can be considered. It goes without saying that the Applicant has not disclosed a prima facie case to the satisfaction of the court on the grounds of his noise complaint.
26. In the case of Chemitei & 2 others v Murgor t/a Coco Grill & 3 others (Environment & Land Petition E006 of 2024) [2025] KEELC 4338 (KLR), the Court aptly observed as follows: -
“Despite stating that they have written to the 2nd – 4th respondents complaining about the noise pollution within their area, there was no proof that the measurement of the noise was taken by a person duly authorized by the Authority who is knowledgeable in proper use of the measuring equipment or engaged the services of an expert in the field. There is no evidence that the Petitioners have sought the services of such person who is knowledgeable in the proper use of the measuring equipment. In the absence of such a measurement, in my view it is very hard for the court to determine as to whether or not the alleged noise exceeded the permissible levels/decibels.
This court cannot therefore fully ascertain the level and/or intensity of the alleged noise pollution or whether the noise emanating from the said establishment exceeded the level permissible or whether the same noises meet the definition of excessive noise and vibration as outlined above.”
27. On the basis of the foregoing, the Applicant has not demonstrated merit in the application for conservatory orders. The application is hereby dismissed with costs to the 1st and 2nd Respondents.
28. It is so ordered.
........................................
HON. E. O. OBAGA
JUDGE
RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 21ST DAY OF APRIL, 2026.
IN THE PRESENCE OF:
Ms. Mutua for 2nd Respondent.
Mr. Kilonzi for Mr. Kyalo for 1st Respondent.
Court assistant – Steve and Nyaanga.
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