NAKURU MILINANI RESIDENTS ORGANIZATION VS JADE HEKIMA LAWN LTD

2.    The application is supported by the annexed affidavit of Francis Kipngetich Langat, the Petitioner’s Chairman,   who deponed that the Petitioner’s members are registered owners of properties, occupiers, licensees, and tenants of various residential properties at Milimani Estate, Nakuru.

3.    The   Petitioner/Applicant further deponed that the Milimani Estate was part of Zone 16, which is a medium-density residential area as per the Nakuru County Integrated Strategic Urban Development Plan. He also stated that despite the zoning restrictions, the 2nd Respondent in 2025,   unprocedurally, without public participation, issued the 1st Respondent with a Trade Permit and liquor selling licenses, allowing them to operate on title No. NAKURU MUNICIPALITY BLOCK 12/109 under a mega bar.

4.    It was his disposition that  the 1st Respondent plays excessively loud music, which interferes with the peace and quiet enjoyment of the properties that neighbor the establishment in violation of the Petitioners' right to property and to live in a clean and healthy environment.  Further, the noisy bar is also situated next to a learning institution, KMTC, and a health facility, Nakuru Level 5  PGH, which interferes with their services.

5.     According to the  deponent, the  2nd Respondent has since abdicated its statutory and constitutional mandate by allowing the 1st Respondent to continue subjecting the residents of Milimani Estate to public nuisance, thereby infringing on their rights to property and to live in a clean and healthy environment.  He also stated that the 2nd Respondent failed to implement the Nakuru City County Alcoholic Drinks Control Licensing Act despite the Petitioner’s complaint.

6.     The Applicant further stated that on 13th March 2025,  the 2nd Respondent  convened a meeting where it was agreed that the 1st Respondent would reduce the noise to below 35 decibels and  visit the premises to ensure compliance,  to which the  2nd Respondent and its Environment and Enforcement Team have not taken steps to contain the wanton noise pollution.

7.    He  therefore urged the court to grant the orders as prayed in the application with costs.

8.    The Respondents did not file any responses to the application; it is unopposed.

9.    Counsel for the Petitioner filed submissions dated 26th January, 2026,  and identified one issue for determination, as to  whether the application has satisfied the conditions for the grant of the orders prayed for in a constitutional petition.  Counsel  submitted that the  application satisfied the legal requirements for conservatory orders and relied on the case of Law Society of Kenya V Office of the Attorney General & Anor, Judicial Service Commission (Interested part) (2020) eKLR.

10.      Mr. Githiru further submitted that the 1st Respondent bar has resulted in noise pollution and health impact, and relied on a NEMA-licensed expert report showing noise levels reaching 72.56 decibels at night, which was more than double the permissible limit of 35 decibels for residential areas.  Further, the noise levels have caused grave and irreparable loss, including health complications for elderly residents and the disruption of students at the nearby Kenya Medical Training College.

11.     It was counsel’s further submission that  the operations of the 1st Respondent have resulted in violations of the Petitioner’s right to clean and healthy environment, right to property and right to human dignity as provided for under Articles 42, 40 and 28 of the Constitution respectively and relied on the cases of   Pastor James Jesse Gitahi & 2 Others V Attorney General Pet No. 683 of 2009 and Muimara Estates Residents Association V Nairobi County & 2 Others (2015) eKLR. Counsel also stated that the Respondent wrongly issued a Trade Permit and liquor license in breach of Section 14 of the Nakuru County Alcoholic Drinks Control and Licensing Act, 2014, which prohibits liquor sales in residential areas.

12.     Similarly, counsel submitted that  there was no public participation before the license was issued to the 1st Respondent, and that the  Residents have suffered financial losses,  as tenants have vacated rental properties due to the uninhabitable environment created by the noise in the 1st Respondent’s bar.

13.     Mr. Githiru also relied on the cases of Judicial Review Misc Application No. 613 of 2016 R V Nairobi City County Alcoholic Drinks Control and Licensing Board & Anor, Exparte Space Lounge Bar & Grill Limited, Centre for Rights Education and Awareness (CREAW) & another – Versus - Speaker of the National Assembly & 2 others (2017) eKLR, and Article 70(3) of the Constitution, and submitted that unless conservatory orders are granted, the Petitioner’s members will continue to suffer huge economic losses, and urged the court to grant the orders as prayed.

14.      From the onset, it should be noted that the  Petitioner filed this petition together with a Notice of Motion seeking orders as enumerated  above in the application. The court gave directions that the Applicant serve the Application within 5 days and the Respondents to file responses within 5 days upon service. The parties were to file submissions within 10 days upon receiving the responses, and the matter was to be mentioned on 10th November 2025.

15.    When the matter came up for mention, Mr. Karanja Mbugua appeared for the 1st respondent, and Mr. Nyamwange for the 2nd Respondent and there was no appearance for the 3rd Respondent although served. The 1st respondent only filed a Memorandum of appearance and nothing else. The 2nd Respondent neither filed a Notice of appointment of Advocate nor any documents.

16.    It follows that the application and the Petition are not opposed. I notice that the 1st Respondent’s counsel filed submissions dated 16th February 2026, which are not anchored on any responses to either the Petition or the application. I will therefore not rely on them for the said reason.

17.      The issues for determination are   whether  the Applicant has met the threshold for grant of a temporary injunction, restraining the  1st  Respondent from   and its employees, servants and agents from playing loud music and/or emitting  noise which is interfering with the Applicant’s members quiet possession and enjoyment of their properties pending the hearing and determination of the petition, whether the court should issue conservatory orders  restraining the 2nd Respondent  from licensing, allowing or permitting the 1st  Respondent or its agents,  to operate a bar, club or alcoholic selling business on  Title No. NAKURU MUNICIPALITY BLOCK 12/109 within Nakuru Milimani Estate in Nakuru, pending the hearing and determination of the Petition.

18.     The Petitioner had sought some orders which are final in nature, which the court will not deal with at this interlocutory stage.

19.    In the case of Centre for Rights Education and Awareness (CREAW) & another – Versus - Speaker of the National Assembly & 2 others (2017) eKLR, the Court stated:

20.     The Applicant must establish that their rights to a peaceful, quiet, and healthy environment are under threat of violation. In the case of Centre for Human Rights and Democracy & 2 Others V Judges and Magistrates Vetting Board & 2 Others Petition No 11 of 2012 the court observed that in deciding whether or not to grant conservatory orders, the following factors are relevance that is; the credential of the petitioner, prima facie correctness or nature of information available to the court whether the  grievances expressed in applying for conservatory orders are genuine legitimate deserving or appropriate, whether the applicant has demonstrated the gravity  or seriousness of the dispute or whether the applicant is engaged in wild vague indefinite or reckless allegations.

21.    The  Petitioners have complained of  excessive noise pollution by the 1st  Respondent, who was licensed by the 2nd Respondent and  is operating a bar business  selling alcoholic  drinks within the residential estate and an educational institution, specifically Kenya Medical Training   College. The Petitioners also relied on  an Expert report  which recorded the noise level at 67 decibel which is beyond the allowable limit of 35 decibels.

22.    In the case of Mumara Estate Residents Association vs Nairobi County & 2 Others [2015] eKLR  the court held thus:-

23.    Prevention of noise and vibration is recognized as a component of a clean and healthy environment, as was held in the case of  Pastor James Jesse Gitahi & 2 Others V Attorney General Pet No. 683 of 2009, thus:

24.     In the case of  JR Misc Application No 613 of 2016, Republic vs Nairobi City County Alcoholoc Drinks Control and Licensing Board & Another Ex parte Space Lounge Bar & Grill Limited (supra)  the court held thus:-

25.     The  court is cognizant of the fact that it is not supposed to deal with the merits of the petition at this interlocutory stage, and that is why it stated at the onset that the Applicant had sought some orders which are of a final nature, and the court did not deal with them.

26.    I have considered the application, the submissions by counsel, and find that the application has merit, and issue the following specific orders.