Silencing The Noise: A Landmark Victory For Estate Residents Against Noisy Establishments

INTRODUCTION 

It has been a long and industrious day at work. All you need is to get home and enjoy your hard-earned rest. But Alas! The entertainment spot right next to your estate has opened its doors and the loud music penetrates through your home walls interfering with your rest. This has been the nightmare that the residents of Mirema Estate, Nairobi have endured in the hands of Entertainment joints and a local house of worship.   

As fate would have it, the residents had enough and sought refuge in their sovereign power and invoked Article 22 of the Constitution of Kenya. A petition was lodged by Amani Residents Welfare Association/Mirema (Suing on behalf of the Residents of Mirema Estate, Nairobi) at the Environment and Land Court at Nairobi.  

THE PETITION. 

The petition filed by Amani Residents Welfare Association/Mirema (Suing on behalf of the Residents of Mirema Estate, Nairobi), a low density residential area on the grounds that the Respondents (Mark Senteu T/A Cocorico Wines as the 1st Respondent, Daniel Muriithi Kibe T/A Paris Lounge & grill as the 2nd Respondent, Alex Kiprotich Ndiema T/A LA Tessara Entertainment as the 3rd Respondents, The Registered Trustees/Minister in charge Trinity House International Ministry as the 4th Respondent, The National Environment Management Authority as the 5th Respondent and the Sub-County Alcoholic Drinks Control & Licensing Committee as the 6th Respondent) have violated various rights of the Petitioners including; Article 40 on the Right to property; the right to a clean and healthy environment provided by Article 42; the Right to live in reasonable sanitation and to access clean and safe water as provided by Article 43 (1) (b) and (d).  

The petitioners sought the following orders: 

1. A declaration that the petitioner’s members’ rights to peacefully enjoy their property and live in a clean and healthy environment has been violated by the actions and inactions of the Respondents as outlined in the Petition. 
2. A declaration that the 1st, 2nd, 3rd and 4th Respondents continued operations within Mirema Estate is a violation of the Petitioner members’ right to use and enjoy their property under article 40 of the Constitution and a violation of their right to a clean and healthy environment as per Article 42 of the Constitution. 
3. A declaration that the decision of the 6th Respondent to issue licenses for the sale of alcoholic drinks to the 1st – 3rd respondents is illegal as it contravenes Section 11(1) (a) of the Nairobi City County Alcoholic Drinks Control Licensing Act. 
4. A declaration that the 5th and 6th respondents have abdicated their constitutional and statutory duty to ensure the implementation of policies relating to the environment to control noise pollution and regulate the sale of alcoholic drinks respectively. 
5. An order under Article 70 of the Constitution cancelling the licenses issued to the 1st – 3rd Respondents for the sale of alcoholic drinks within a residential estate. 
6. A permanent injunction restraining the 4th respondent from emitting noise beyond its precincts which interferes with the residents’ quiet use and enjoyment of their properties. 
7. An order that the OCS Kasarani Police Station and /or the Roysambu Assistant County Commissioner does assist the implementation of the Court’s orders. 
8. An order for compensation for violation of fundamental rights and freedoms; and 
9. Costs of the Petition 

It was the Petitioner’s case that the 1st – 3rd Respondents and the 4th Respondent set up entertainment and alcoholic selling establishments and place of worship respectively. It was deponed that the 1st – 3rd Respondents played loud music that interrupted the sleep of residents in the estate. The complaint against the 4th Respondent was that on Sunday’s and Friday’s, they used sound systems to preach, sounds which resonated through the neighbourhood at deafening levels. The noise was ‘unpleasant and obnoxious’. 

Further to this, the 1st Respondent is alleged to have been discharging raw sewer in an open drainage which passed by the Residents houses. This caused a stench and a violation of the residents’ right to live in dignity. 

Against the 5th and 6th Respondents, the Petitioners alleged that the two failed to honour their statutory obligation to ensure that the rights of the Petitioner’s are not violated in the manner alleged, more so the 6th Respondent who has unlawfully, un procedurally and illegally approved liquor selling licenses to the 1st and 3rd Respondents to operate their alcohol selling business in a residential area contrary to the Nairobi City County Alcoholic Drinks Control Licensing Act.  

ISSUES CONSIDERED BY COURT 

From the foregoing and after looking at the Petition, the following issues were drawn for the Courts determination: 

1. Whether the Petitioners members rights to peacefully enjoy their property and to live in a clean and healthy environment has been violated by the actions and inactions of the Respondents; and 
2. Whether the 5th and 6th Respondents have abdicated their Constitutional and Statutory mandate leading to a violation of the Petitioner members’ rights 

COURT’S ANALYSIS & DETERMINATION 

The Petitioners complain the actions of the 1st – 3rd Respondents of playing excessive and loud music at night and the 4th Respondents Sunday Services and overnight Friday Services which contribute to the excessive noise resonating throughout the neighbourhood violated the Petitioners’ right to property contrary to Article 40 of the Constitution of Kenya. The actions of the 1st Respondent of remitting waste to the neighbourhood is a health hazard to the residents violating their rights to a clean and healthy environment contrary to Article 42 of the Constitution. 

On waste management, non of the three Respondents had an Effluent Discharge System and as such was a health hazard to the Petitioner’s residents in contravention of Section 87 of the EMCA which provides that no person shall discharge or dispose any wastes, whether generated within or outside Kenya, in such manner as to cause pollution to the environment or ill health to any person. On this issue, the Court found that the Petitioner had proved infringement of its residents’ rights as enshrined in Article 40 and 42 of the Constitution. 

On the second issue, the Court considered that complaint letters were issued to both the 5th and 6th Respondent who did not take any action. The transgressions of the 6th Respondent were considered worse as they issued liquor licenses to the 1st – 3rd Respondent to operate in residential areas, in contravention of provisions of the Nairobi City County Alcoholic Drinks Control and Licensing Act, 2014. 

The court found that the 5th and 6th Respondent failed in their Statutory obligations and did not take any action in the matter until the matter was in court and more so in the case of the 6th Respondent not only was there negligence but also a clear violation of the law. 

In the end, Judgement was entered for the petitioners as prayed and awarded the Petitioners an amount of Kshs. 5,000,000. Liability was apportioned as follows: 

1. 1st and 2nd Respondent – 15%; 
2. 3rd and 4th Respondent who undertook mitigation measures – 10%; 
3. The 5th Respondent – 20%; and 
4. The 6th Respondent- 30% 

OUR VIEWS 

We must commend the efforts of the Petitioner in realising the sovereign power they hold and instituting this land mark petition. It goes without saying that this brings a smile to our faces as the menace on noise pollution by entertainment joints and places of worship has been rampant and it was time to put an end to this. 

This petition has also helped us appreciate the mandate of Regulatory and Licensing authorities such as NEMA, in ensuring that people and establishments conduct their business in accordance with the law. We must hold them accountable for their actions and inactions. 

Don’t be bullied by entertainment establishments to compromise on you right to property, which entails enjoyment of quiet possession and the Right to live in reasonable sanitation as provided for in Articles 40, 42 & 43(1) (b) and (d) of the Constitution of Kenya. 

CONCLUSION. 

The verdict in favour of the residents of Mirema Estate is a significant milestone in the ongoing struggle for the enforcement of constitutional rights in Kenya. It underscores the importance of citizens utilizing their sovereign power to seek redress when their rights are infringed upon. This case sets a crucial precedent in addressing noise pollution and environmental degradation caused by entertainment joints and places of worship in residential areas. 

The successful petition not only highlights the residents' resilience and unity but also emphasizes the critical role of regulatory bodies like the National Environment Management Authority (NEMA) and local licensing authorities in upholding statutory and constitutional mandates. The court’s decision serves as a reminder to these bodies that negligence and unlawful actions will not go unchecked and that they are accountable for ensuring businesses operate within the legal framework. 

Moreover, this Judgement reinforces the sanctity of the constitutional rights to property, a clean and healthy environment, and reasonable sanitation. It sends a clear message that residents should not be bullied or coerced into compromising these rights. Instead, they are encouraged to assertively demand compliance with the law to preserve their quality of life. 

The allocation of financial compensation for the violation of fundamental rights further signifies the judiciary's commitment to safeguarding citizens' well-being. It also serves as a deterrent to potential violators, underscoring the consequences of neglecting environmental and public health standards. Ultimately, the Amani Residents Welfare Association/Mirema’s victory is a beacon of hope and a call to action for other communities facing similar challenges. It exemplifies the power of collective action and legal recourse in achieving justice and fostering a more accountable, respectful, and law-abiding society.