The matter before me is the Notice of Motion dated 28th May 2025 that was filed together with the Petition and the Supporting Affidavit sworn by the 2nd Petitioner on the same date. The Application is brought under Articles 23, 42, 69 and 70 of the Constitution of Kenya, the Environmental Management and Coordination Act (EMCA), the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009, the Physical and Land Use Planning Act, and all other enabling provisions of the law. It seeks the urgent protection of the Petitioners’ constitutional right to a clean, healthy, and dignified environment.
The dispute revolves on the alleged continued operation and expansion of an alleged illegal and unregulated church structure by the 1st Respondent, situated immediately adjacent to the Petitioners’ residential home at Kadzandani, Bamburi, Mombasa County. The structure, allegedly constructed using impermanent iron-sheet materials, has allegedly over the years been the source of persistent noise pollution, environmental degradation, unsanitary conditions, and direct physical encroachment, thereby rendering the Petitioners’ home increasingly uninhabitable.
According to the petitioners they are not casual complainants. They are long-standing lawful residents and registered proprietors of their property, who have endured years of disturbance, distress, and health deterioration as a direct result of the 1st Respondent’s activities.
The Application seeks conservatory and injunctive reliefs restraining the 1st Respondent from:
i. Continuing with any construction, development, or conversion of the impugned structure into a permanent building without lawful approvals;
ii. Continuing to generate excessive noise pollution, including through amplified sound systems, in violation of statutory noise limits;
iii. Using public address systems, loudspeakers, and amplified worship equipment within a residential setting;
iv. Maintaining and operating unsanitary toilet facilities erected in close proximity to the Petitioners’ home, emitting foul stench and posing health risks;
v. And compelling the 2nd and 3rd Respondents, being the County Government of Mombasa and the National Environment Management Authority (NEMA), to discharge their constitutional and statutory mandates by enforcing planning and environmental laws.
Upon being satisfied that the petitioners disclosed a prima facie case of ongoing and threatened environmental harm, this Honourable Court granted Prayers 2, 3 and 4 on an interim basis, thereby restraining further construction, pollution, and use of amplified sound equipment pending the hearing and determination of the Application and suit herein. These interim orders underscore the Court’s recognition of the urgency and seriousness of the violations complained of.
The Application is opposed by the 1st Respondent through a Replying Affidavit dated 2nd July 2025, sworn by Haron Mathenge Ndung’u, in which the 1st Respondent admits operating the church and undertaking construction but states that the same was approved and that the construction is within mixed-use zoning.
The 1st respondent further states that the application is made in of bad faith against the Petitioners.
In response, the Petitioners filed a Further Affidavit dated 19th September 2025, in which they rebut the Respondent’s allegations, clarified issues of misjoinder and authority, demonstrated the absence of lawful approvals, and placed before the Court additional material showing a pattern of persistent non-compliance, intimidation, and disregard for regulatory processes by the 1st Respondent.
The petitioners contend that this matter raises fundamental constitutional questions concerning: the enforceability of environmental rights under Article 42; the duty of the State and its agencies under Article 69 to protect the environment; the Court’s remedial jurisdiction under Article 70 to prevent environmental harm; and the limits of religious freedom where its exercise infringes the rights and dignity of others.
The petitionert argues that the petition is not a mere neighbourhood disagreement; it is a constitutional plea for protection from ongoing environmental harm. The 1st Respondent has established and continues to operate an unlawful church structure within a residential setting in violation of environmental and planning laws, generating excessive noise, maintaining unsanitary facilities, and undertaking construction without demonstrated statutory approval, all to the detriment of the Petitioners’ health, dignity and quiet enjoyment of their home. Despite formal complaints and objective regulatory findings confirming noise levels beyond permissible limits, the responsible public authorities have failed to enforce compliance. There is importance of accountability under the Constitution, that no person, institution or public body is above environmental law, and that freedom of worship, while protected, cannot override the equally protected right to a clean and healthy environment under Article 42. The Petitioners therefore seek this Honourable Court’s intervention to preserve constitutional rights, prevent further harm, and uphold the rule of law.
On whether the Respondents have violated Articles 42, 69 and 70 of the Constitution, the petitioners argues that they have established a prima facie case with a likelihood of success. They rely on Giella v Cassman Brown & Co. Ltd [1973] EA 358, These principles were refined in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, where the Court of Appeal emphasized that the three limbs are sequential and not conjunctive; failure to satisfy the first limb is fatal.
The a petitioners contend that the present matter is not a purely private law dispute. It is anchored in Articles 42 and 70 of the Constitution and concerns enforcement of environmental rights. In constitutional litigation, particularly environmental matters, courts adopt a more purposive and rights-oriented approach.
They cite the case of Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, the High Court held that conservatory orders in constitutional matters are not granted strictly on private law principles but on whether the Applicant has demonstrated: An arguable constitutional violation; and the need to preserve the subject matter to avoid rendering the Petition nugatory. Similarly, in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, the Court of Appeal stated that conservatory relief is grounded on the need to facilitate ordered functioning of public agencies and preserve constitutional values. Further, Article 70(1) of the Constitution provides that if a person alleges that the right to a clean and healthy environment has been denied, violated or threatened, that person may apply to Court for redress.
According to the petitioners Critically, Article 70(2)(a) expressly removes the burden of proving personal loss or injury. This reflects a deliberate constitutional shift from private nuisance principles to a public interest, preventative environmental protection model. They argue that the Court’s role is therefore protective and preventative, not merely compensatory. The applicant relies on the case of Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR, where a prima facie case was defined as one which, on the material presented, discloses an arguable right which has apparently been infringed and calls for rebuttal. The Petitioners have satisfied this threshold on several independent and cumulative grounds according to the applicant. These include proof of Ownership and Locus Standi
The Petitioners have exhibited documentary proof of ownership of Kadzandani Land Settlement Trust Plot 259/1/MN in the Supporting Affidavit This effectively establishes legal interest in the suit property; direct proximity to the Respondent’s activities; and standing to challenge environmental and planning violations. He submits that under Article 22 and 258 of the Constitution, even absence of proprietary interest, the Petitioners would still have standing. Their ownership merely strengthens, rather than creates, locus standi.
The Objective Evidence of Noise Pollution is the official Noise Measurement Report dated 8th April 2024 The applicant argues that the confirmed decibel levels exceeded permissible limits under the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009. This is not speculative evidence. It is a formal County Government assessment; conducted pursuant to Regulation 6; and quantifying noise levels above statutory thresholds.
They further submit that Regulation 8 of the Noise Regulations prohibits excessive noise that exceeds prescribed limits or disturbs public peace. Once a regulatory authority confirms exceedance, a statutory violation is prima facie established. The applicant cites Peter K. Waweru v Republic [2006] eKLR, the High Court held that environmental rights under Article 42 are immediately enforceable and not aspirational. The Court emphasized that pollution control is not optional and must be judicially enforced where demonstrated. The Petitioners have therefore demonstrated statutory non-compliance on the part of the 1st Respondent.
The petitioners submits that they have proved that their health is in danger due to pronged exposure to excessive noise. The medical report annexed to the application confirm deterioration in the 1st Petitioner’s health due to prolonged exposure to excessive noise and environmental stress. This evidence establishes: a nexus between environmental violation and human health; aggravation of pre-existing medical conditions; and psychological and physiological harm.
The applicants argue that their Environmental rights are intertwined with the right to dignity (Article 28) and the right to health (Article 43(1)(a)). The applicant relies on the case of John Kabui Mwai & 3 Others v Kenya National Examination Council & 2 Others [2011] eKLR where the court observed that constitutional rights must be interpreted holistically and contextually. Where environmental harm affects health, the violation becomes multi-dimensional.
a) Admission of Church Operation and Construction
The 1st Respondent expressly admits, in their Replying Affidavit, operating a church on Plot No. 259 measuring 54 x 42 ft and seeking approval in April 2025 for repairs/construction.
Most crucially for this Honourable Court, the Respondent annexes a request for approval, not an approved development permission under the Physical and Land Use Planning Act.
Section 57 and 58 of the Physical and Land Use Planning Act require formal development permission prior to construction. A mere application or payment receipt does not constitute compliance. The burden shifts to the Respondent to produce lawful approvals. None have been exhibited.
The prima facie illegality of the structure remains unrebutted.
b) Alleged Mixed-Use Zoning
That the 1st Respondent has not produced any zoning plan, no gazette notice is annexed; no planning approval is produced. Bare assertions cannot override documentary evidence of environmental breach. They refer to the case of Republic v National Environmental Management Authority ex parte Sound Equipment Ltd [2011] eKLR, the Court held that environmental compliance must be evidenced by lawful authorization and regulatory clearance. The Respondent has provided none.
The Petitioners contend that they stand to suffer irreparable harm which cannot be adequately remedied by damages. The environmental degradation is inherently irreparable because It affects health and human dignity and It may be cumulative and progressive as it impacts present and future enjoyment of property. They rely on Ken Kasing’a v Daniel Kiplagat Kirui & 5 Others [2015] eKLR, where the Court recognized that environmental harm cannot easily be quantified in monetary terms. In Waweru (supra), the Court observed that environmental rights are preventative in nature; courts must act before harm becomes permanent. In the case before this court, the Petitioners suffer persistent excessive noise; disrupted sleep patterns; medical deterioration; drainage contamination and Offensive sanitation conditions. They believe that under Article 70(2)(c), the Court may issue orders to prevent or discontinue environmental harm without requiring proof of actual damage. The constitutional standard is threat in any form and not complete destruction.
On the balance of convenience, the petitioners argue that it favors the grant of the orders. The 1st Respondent invokes Article 32 (freedom of religion). However, Article 24 permits limitation of rights where necessary to protect public health; the rights of others; and public order. Religious freedom does not confer immunity from planning, environmental, and public health regulation.
The petitioners cite the case of Seventh Day Adventist Church (East Africa) Ltd v Permanent Secretary, Ministry of Nairobi Metropolitan Development [2014] eKLR, the Court held that religious institutions must comply with zoning and planning laws and cannot rely on constitutional protection to justify regulatory breach. The balance of convenience favours the enforcement of constitutional environmental rights, the preservation of residential peace, the prevention of unlawful permanent construction, and most importantly, upholding rule of law. The applicant submits that if the injunction is denied and construction proceeds, the harm may become entrenched and irreversible. If granted, the Respondent merely pauses operations pending lawful compliance.
The gravamen of the 1st respondent’s argument is that the Court cannot grant orders preventing the 1st respondent from utilizing their property. The 1st respondent argues that this is not a land dispute and therefore the Applicant purporting to seek orders removing the 1st Respondent from their land is farfetched. The Applicant has not brought any claim demanding the land where the 1st respondent has erected its church. The filing of the Petition was brought about by malice where the Applicant professes a different religion and therefore they have issues when the 1st respondent prays that that's why the term the prayers as noise. The 1st Respondent has adhered to the standard of cleanliness and no single photograph has 'been brought forth by the Applicant indicating the dirt and sewage that they are alluding to.
The 1st respondent has brought materials in an attempt to renovate the prayer centre so that it becomes conducive to the worshipers inside and the people outside but the progress was Stopped by this court vide its order issued on 1st July, 2025.
The 1st respondent has adhered to all the required laws and has obtained all the permits required of them to operate a church and the relevant bodies mandated to regulate the church have not raised any concerns with the church.
The 1st respondent prays that this hobourable court looks at the matter holistically and lifts all the orders barring the church of God from operating. The 1st respondent submits that the church has not encroached on any person's land and it is not their fault that the land where the church has been built is adjacent to the Applicants property. There are several adjacent houses and neighbors who have not raised any concerns about the church and barring the church from proceeding with constructions will be tantamount to denying them their rights to property as enshrined under article 40 of the 2010, constitution.
That no evidence has been brought forth indicating that the church of God has contravened article 42 of the Constitution 2010 as alleged and no complains has been filed by the 5th Respondent (NEMA) indicating that the church as contravened any sections of environmental management and coordination Act.
From the foregoing the Applicant has not proven its case on a balance of probability and therefore there has no prima facie case which has been established and therefore the Court granting the orders ought will be prejudicial to the 1st respondent who stands to suffer irreparable harm as their church will be shut down and they will be denied use of their land. On whether the sound produced in the church exceeds the recommended decibels, the respondent submits that the Applicants supporting Affidavit purports to attach a noise management report from the department of environment and governance dated 8th April, 2024.
The report is highly suspicious and is refuted and this honorable Court shouldn’t be guided by the said report which has no stamp, the parties who prepared the report have also not indicated their designated position and therefore it's really hard to be traced. The court is requested to issue an order directing the 4th and 5th Respondent to conduct a joint exercise to measure the decibels to ascertain the amount of noise emanated from the church together with the parties involved.
Analysis and Determination.
I have considered the untested facts of the case and do find that The Petitioners have exhibited some scintilla of documentary proof of ownership of Kadzandani Land Settlement Trust Plot 259/1/MN in the Supporting Affidavit. This is prima facie proof of legal interest in the suit property which is next to the Respondent’s activities and therefore has standing to challenge environmental and planning violations. I do agree with the applicant that under Article 22 and 258 of the Constitution, even with absence of proprietary interest, the Petitioners would still have standing. Their ownership merely strengthens, rather than creates, locus standi. Moreover, the applicant has annexed a Report dated 8th April 2024 as evidence of the fact that the decibel levels exceeded permissible limits under the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009. The report was prepared pursuant to an inspection conducted pursuant to Regulation 6; and quantifying noise levels above statutory thresholds.
Regulation 8 of the Noise Regulations prohibits excessive noise that exceeds prescribed limits or disturbs public peace. Once a regulatory authority confirms exceedance, a statutory violation is prima facie established.
In Peter K. Waweru v Republic [2006] eKLR, the High Court held that environmental rights under Article 42 are immediately enforceable and not aspirational. The Court emphasized that pollution control is not optional and must be judicially enforced where demonstrated. The Petitioners have therefore demonstrated statutory non-compliance on the part of the 1st Respondent.
This court finds that the applicant has demonstrated that she has a prima facie case with a likelihood of success. They have demonstrated that their health is in danger due to pronged exposure to excessive noise. The medical report annexed to the application confirm deterioration in the 1st Petitioner’s health due to prolonged exposure to excessive noise and environmental stress. This evidence establishes: a nexus between environmental violation and human health; aggravation of pre-existing medical conditions; and psychological and physiological harm. On this basis, the applicant has demonstrated that if an injunction is not granted, they will suffer irreparable loss.
On balance of convenience, I do find that the applicants are more likely to be inconvenienced if injunction is not issued as prayed as their suffering will continue. This court in conclusion observes that places of worship should also observe constitutional provisions just like other public bodies and individuals. I do grant conservatory orders restraining the 1st Respondent from:
i. Continuing with any construction, development, or conversion of the impugned structure into a permanent building without lawful approvals;
ii. Continuing to generate excessive noise pollution, including through amplified sound systems, in violation of statutory noise limits;
iii. Using public address systems, loudspeakers, and amplified worship equipment within a residential setting;
iv. Maintaining and operating unsanitary toilet facilities erected in close proximity to the Petitioners’ home, emitting foul stench and posing health risks;
“Pending the hearing and determination of the petition” Mention for directions on the 24th September 2026.
The dispute revolves on the alleged continued operation and expansion of an alleged illegal and unregulated church structure by the 1st Respondent, situated immediately adjacent to the Petitioners’ residential home at Kadzandani, Bamburi, Mombasa County. The structure, allegedly constructed using impermanent iron-sheet materials, has allegedly over the years been the source of persistent noise pollution, environmental degradation, unsanitary conditions, and direct physical encroachment, thereby rendering the Petitioners’ home increasingly uninhabitable.
According to the petitioners they are not casual complainants. They are long-standing lawful residents and registered proprietors of their property, who have endured years of disturbance, distress, and health deterioration as a direct result of the 1st Respondent’s activities.
The Application seeks conservatory and injunctive reliefs restraining the 1st Respondent from:
i. Continuing with any construction, development, or conversion of the impugned structure into a permanent building without lawful approvals;
ii. Continuing to generate excessive noise pollution, including through amplified sound systems, in violation of statutory noise limits;
iii. Using public address systems, loudspeakers, and amplified worship equipment within a residential setting;
iv. Maintaining and operating unsanitary toilet facilities erected in close proximity to the Petitioners’ home, emitting foul stench and posing health risks;
v. And compelling the 2nd and 3rd Respondents, being the County Government of Mombasa and the National Environment Management Authority (NEMA), to discharge their constitutional and statutory mandates by enforcing planning and environmental laws.
Upon being satisfied that the petitioners disclosed a prima facie case of ongoing and threatened environmental harm, this Honourable Court granted Prayers 2, 3 and 4 on an interim basis, thereby restraining further construction, pollution, and use of amplified sound equipment pending the hearing and determination of the Application and suit herein. These interim orders underscore the Court’s recognition of the urgency and seriousness of the violations complained of.
The Application is opposed by the 1st Respondent through a Replying Affidavit dated 2nd July 2025, sworn by Haron Mathenge Ndung’u, in which the 1st Respondent admits operating the church and undertaking construction but states that the same was approved and that the construction is within mixed-use zoning.
The 1st respondent further states that the application is made in of bad faith against the Petitioners.
In response, the Petitioners filed a Further Affidavit dated 19th September 2025, in which they rebut the Respondent’s allegations, clarified issues of misjoinder and authority, demonstrated the absence of lawful approvals, and placed before the Court additional material showing a pattern of persistent non-compliance, intimidation, and disregard for regulatory processes by the 1st Respondent.
The petitioners contend that this matter raises fundamental constitutional questions concerning: the enforceability of environmental rights under Article 42; the duty of the State and its agencies under Article 69 to protect the environment; the Court’s remedial jurisdiction under Article 70 to prevent environmental harm; and the limits of religious freedom where its exercise infringes the rights and dignity of others.
The petitionert argues that the petition is not a mere neighbourhood disagreement; it is a constitutional plea for protection from ongoing environmental harm. The 1st Respondent has established and continues to operate an unlawful church structure within a residential setting in violation of environmental and planning laws, generating excessive noise, maintaining unsanitary facilities, and undertaking construction without demonstrated statutory approval, all to the detriment of the Petitioners’ health, dignity and quiet enjoyment of their home. Despite formal complaints and objective regulatory findings confirming noise levels beyond permissible limits, the responsible public authorities have failed to enforce compliance. There is importance of accountability under the Constitution, that no person, institution or public body is above environmental law, and that freedom of worship, while protected, cannot override the equally protected right to a clean and healthy environment under Article 42. The Petitioners therefore seek this Honourable Court’s intervention to preserve constitutional rights, prevent further harm, and uphold the rule of law.
On whether the Respondents have violated Articles 42, 69 and 70 of the Constitution, the petitioners argues that they have established a prima facie case with a likelihood of success. They rely on Giella v Cassman Brown & Co. Ltd [1973] EA 358, These principles were refined in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, where the Court of Appeal emphasized that the three limbs are sequential and not conjunctive; failure to satisfy the first limb is fatal.
The a petitioners contend that the present matter is not a purely private law dispute. It is anchored in Articles 42 and 70 of the Constitution and concerns enforcement of environmental rights. In constitutional litigation, particularly environmental matters, courts adopt a more purposive and rights-oriented approach.
They cite the case of Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, the High Court held that conservatory orders in constitutional matters are not granted strictly on private law principles but on whether the Applicant has demonstrated: An arguable constitutional violation; and the need to preserve the subject matter to avoid rendering the Petition nugatory. Similarly, in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, the Court of Appeal stated that conservatory relief is grounded on the need to facilitate ordered functioning of public agencies and preserve constitutional values. Further, Article 70(1) of the Constitution provides that if a person alleges that the right to a clean and healthy environment has been denied, violated or threatened, that person may apply to Court for redress.
According to the petitioners Critically, Article 70(2)(a) expressly removes the burden of proving personal loss or injury. This reflects a deliberate constitutional shift from private nuisance principles to a public interest, preventative environmental protection model. They argue that the Court’s role is therefore protective and preventative, not merely compensatory. The applicant relies on the case of Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR, where a prima facie case was defined as one which, on the material presented, discloses an arguable right which has apparently been infringed and calls for rebuttal. The Petitioners have satisfied this threshold on several independent and cumulative grounds according to the applicant. These include proof of Ownership and Locus Standi
The Petitioners have exhibited documentary proof of ownership of Kadzandani Land Settlement Trust Plot 259/1/MN in the Supporting Affidavit This effectively establishes legal interest in the suit property; direct proximity to the Respondent’s activities; and standing to challenge environmental and planning violations. He submits that under Article 22 and 258 of the Constitution, even absence of proprietary interest, the Petitioners would still have standing. Their ownership merely strengthens, rather than creates, locus standi.
The Objective Evidence of Noise Pollution is the official Noise Measurement Report dated 8th April 2024 The applicant argues that the confirmed decibel levels exceeded permissible limits under the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009. This is not speculative evidence. It is a formal County Government assessment; conducted pursuant to Regulation 6; and quantifying noise levels above statutory thresholds.
They further submit that Regulation 8 of the Noise Regulations prohibits excessive noise that exceeds prescribed limits or disturbs public peace. Once a regulatory authority confirms exceedance, a statutory violation is prima facie established. The applicant cites Peter K. Waweru v Republic [2006] eKLR, the High Court held that environmental rights under Article 42 are immediately enforceable and not aspirational. The Court emphasized that pollution control is not optional and must be judicially enforced where demonstrated. The Petitioners have therefore demonstrated statutory non-compliance on the part of the 1st Respondent.
The petitioners submits that they have proved that their health is in danger due to pronged exposure to excessive noise. The medical report annexed to the application confirm deterioration in the 1st Petitioner’s health due to prolonged exposure to excessive noise and environmental stress. This evidence establishes: a nexus between environmental violation and human health; aggravation of pre-existing medical conditions; and psychological and physiological harm.
The applicants argue that their Environmental rights are intertwined with the right to dignity (Article 28) and the right to health (Article 43(1)(a)). The applicant relies on the case of John Kabui Mwai & 3 Others v Kenya National Examination Council & 2 Others [2011] eKLR where the court observed that constitutional rights must be interpreted holistically and contextually. Where environmental harm affects health, the violation becomes multi-dimensional.
a) Admission of Church Operation and Construction
The 1st Respondent expressly admits, in their Replying Affidavit, operating a church on Plot No. 259 measuring 54 x 42 ft and seeking approval in April 2025 for repairs/construction.
Most crucially for this Honourable Court, the Respondent annexes a request for approval, not an approved development permission under the Physical and Land Use Planning Act.
Section 57 and 58 of the Physical and Land Use Planning Act require formal development permission prior to construction. A mere application or payment receipt does not constitute compliance. The burden shifts to the Respondent to produce lawful approvals. None have been exhibited.
The prima facie illegality of the structure remains unrebutted.
b) Alleged Mixed-Use Zoning
That the 1st Respondent has not produced any zoning plan, no gazette notice is annexed; no planning approval is produced. Bare assertions cannot override documentary evidence of environmental breach. They refer to the case of Republic v National Environmental Management Authority ex parte Sound Equipment Ltd [2011] eKLR, the Court held that environmental compliance must be evidenced by lawful authorization and regulatory clearance. The Respondent has provided none.
The Petitioners contend that they stand to suffer irreparable harm which cannot be adequately remedied by damages. The environmental degradation is inherently irreparable because It affects health and human dignity and It may be cumulative and progressive as it impacts present and future enjoyment of property. They rely on Ken Kasing’a v Daniel Kiplagat Kirui & 5 Others [2015] eKLR, where the Court recognized that environmental harm cannot easily be quantified in monetary terms. In Waweru (supra), the Court observed that environmental rights are preventative in nature; courts must act before harm becomes permanent. In the case before this court, the Petitioners suffer persistent excessive noise; disrupted sleep patterns; medical deterioration; drainage contamination and Offensive sanitation conditions. They believe that under Article 70(2)(c), the Court may issue orders to prevent or discontinue environmental harm without requiring proof of actual damage. The constitutional standard is threat in any form and not complete destruction.
On the balance of convenience, the petitioners argue that it favors the grant of the orders. The 1st Respondent invokes Article 32 (freedom of religion). However, Article 24 permits limitation of rights where necessary to protect public health; the rights of others; and public order. Religious freedom does not confer immunity from planning, environmental, and public health regulation.
The petitioners cite the case of Seventh Day Adventist Church (East Africa) Ltd v Permanent Secretary, Ministry of Nairobi Metropolitan Development [2014] eKLR, the Court held that religious institutions must comply with zoning and planning laws and cannot rely on constitutional protection to justify regulatory breach. The balance of convenience favours the enforcement of constitutional environmental rights, the preservation of residential peace, the prevention of unlawful permanent construction, and most importantly, upholding rule of law. The applicant submits that if the injunction is denied and construction proceeds, the harm may become entrenched and irreversible. If granted, the Respondent merely pauses operations pending lawful compliance.
The gravamen of the 1st respondent’s argument is that the Court cannot grant orders preventing the 1st respondent from utilizing their property. The 1st respondent argues that this is not a land dispute and therefore the Applicant purporting to seek orders removing the 1st Respondent from their land is farfetched. The Applicant has not brought any claim demanding the land where the 1st respondent has erected its church. The filing of the Petition was brought about by malice where the Applicant professes a different religion and therefore they have issues when the 1st respondent prays that that's why the term the prayers as noise. The 1st Respondent has adhered to the standard of cleanliness and no single photograph has 'been brought forth by the Applicant indicating the dirt and sewage that they are alluding to.
The 1st respondent has brought materials in an attempt to renovate the prayer centre so that it becomes conducive to the worshipers inside and the people outside but the progress was Stopped by this court vide its order issued on 1st July, 2025.
The 1st respondent has adhered to all the required laws and has obtained all the permits required of them to operate a church and the relevant bodies mandated to regulate the church have not raised any concerns with the church.
The 1st respondent prays that this hobourable court looks at the matter holistically and lifts all the orders barring the church of God from operating. The 1st respondent submits that the church has not encroached on any person's land and it is not their fault that the land where the church has been built is adjacent to the Applicants property. There are several adjacent houses and neighbors who have not raised any concerns about the church and barring the church from proceeding with constructions will be tantamount to denying them their rights to property as enshrined under article 40 of the 2010, constitution.
That no evidence has been brought forth indicating that the church of God has contravened article 42 of the Constitution 2010 as alleged and no complains has been filed by the 5th Respondent (NEMA) indicating that the church as contravened any sections of environmental management and coordination Act.
From the foregoing the Applicant has not proven its case on a balance of probability and therefore there has no prima facie case which has been established and therefore the Court granting the orders ought will be prejudicial to the 1st respondent who stands to suffer irreparable harm as their church will be shut down and they will be denied use of their land. On whether the sound produced in the church exceeds the recommended decibels, the respondent submits that the Applicants supporting Affidavit purports to attach a noise management report from the department of environment and governance dated 8th April, 2024.
The report is highly suspicious and is refuted and this honorable Court shouldn’t be guided by the said report which has no stamp, the parties who prepared the report have also not indicated their designated position and therefore it's really hard to be traced. The court is requested to issue an order directing the 4th and 5th Respondent to conduct a joint exercise to measure the decibels to ascertain the amount of noise emanated from the church together with the parties involved.
Analysis and Determination.
I have considered the untested facts of the case and do find that The Petitioners have exhibited some scintilla of documentary proof of ownership of Kadzandani Land Settlement Trust Plot 259/1/MN in the Supporting Affidavit. This is prima facie proof of legal interest in the suit property which is next to the Respondent’s activities and therefore has standing to challenge environmental and planning violations. I do agree with the applicant that under Article 22 and 258 of the Constitution, even with absence of proprietary interest, the Petitioners would still have standing. Their ownership merely strengthens, rather than creates, locus standi. Moreover, the applicant has annexed a Report dated 8th April 2024 as evidence of the fact that the decibel levels exceeded permissible limits under the Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009. The report was prepared pursuant to an inspection conducted pursuant to Regulation 6; and quantifying noise levels above statutory thresholds.
Regulation 8 of the Noise Regulations prohibits excessive noise that exceeds prescribed limits or disturbs public peace. Once a regulatory authority confirms exceedance, a statutory violation is prima facie established.
In Peter K. Waweru v Republic [2006] eKLR, the High Court held that environmental rights under Article 42 are immediately enforceable and not aspirational. The Court emphasized that pollution control is not optional and must be judicially enforced where demonstrated. The Petitioners have therefore demonstrated statutory non-compliance on the part of the 1st Respondent.
This court finds that the applicant has demonstrated that she has a prima facie case with a likelihood of success. They have demonstrated that their health is in danger due to pronged exposure to excessive noise. The medical report annexed to the application confirm deterioration in the 1st Petitioner’s health due to prolonged exposure to excessive noise and environmental stress. This evidence establishes: a nexus between environmental violation and human health; aggravation of pre-existing medical conditions; and psychological and physiological harm. On this basis, the applicant has demonstrated that if an injunction is not granted, they will suffer irreparable loss.
On balance of convenience, I do find that the applicants are more likely to be inconvenienced if injunction is not issued as prayed as their suffering will continue. This court in conclusion observes that places of worship should also observe constitutional provisions just like other public bodies and individuals. I do grant conservatory orders restraining the 1st Respondent from:
i. Continuing with any construction, development, or conversion of the impugned structure into a permanent building without lawful approvals;
ii. Continuing to generate excessive noise pollution, including through amplified sound systems, in violation of statutory noise limits;
iii. Using public address systems, loudspeakers, and amplified worship equipment within a residential setting;
iv. Maintaining and operating unsanitary toilet facilities erected in close proximity to the Petitioners’ home, emitting foul stench and posing health risks;
“Pending the hearing and determination of the petition” Mention for directions on the 24th September 2026.