The Environment and Land Court has ruled that having a licence to operate a potentially noisy business may be a requirement, but it is not a complete defence for noise pollution.
Justice Addraya Dena ruled that a licence does not absolve the operator of responsibility to ensure their activities comply with permissible noise levels.
The judge noted that as far as decibels are concerned, Schedule 1 of the Control of Noise Regulations does not differentiate whether one has a licence or not.
Justice Dena made the decision in a case where she declared that Alliance Development Ltd, trading as Safari Beach Hotel, had violated the right of Sunlodges Kenya Ltd, which operates Ocean Village Club, to a clean and healthy environment and economic and social rights as enshrined in the Constitution, in relation to noise pollution.
Safari Beach Hotel, situated in Diani, Kwale County, is associated with the late veteran politician Kenneth Matiba.
Justice Dena also ruled that to preserve and maintain public health and environment, Safari Beach Hotel and Ocean Village Club shall continually monitor and provide a report of the noise levels on at least quarterly basis to the National Management Environment Authority (Nema) and the county government of Kwale for monitoring purposes.
Nema and the county government of Kwale had also been named as respondents in the petition by Sunlodges Kenya Ltd.
The court also noted that there was evidence that the noise was above the permitted levels and could not be wished away.
Justice Dena said that from the reports presented in court, the noises were attributed to Safari Beach Hotel.
“I am satisfied that the petitioner (Sunlodges Kenya Ltd) well-articulated and proved on a balance of probability that its rights to a clean and healthy environment were indeed infringed by the first respondent (Safari Beach Hotel),” ruled Justice Dena.
She also noted that there was no evidence placed before court by the petitioner that they booked any complaint with Nema as the coordinator of actions by lead agencies.
“The blame as to the violations with regard to right to a healthy and clean environment relating to the noise pollution lies squarely on the first respondent and the third respondent (county government) who issued some of the licences,” ruled Justice Dena.
Justice Dena also noted that operations of Safari Beach Hotel predate that of the Ocean Village Club, the former having been set up in 1986 and the later 2014.
The judge added that both parties are entitled to be in business in tandem with their social and economic rights.
“This court however acknowledges that the Constitution guarantees to all persons the right to a clean and healthy environment. This includes the right to peaceful environment devoid of noise beyond the allowable limits,” said the judge.
She ruled that there should be room for co-existence of the two establishments since the actions of Safari Beach Hotel can be monitored, mitigated and remedied.
“It is disclosed in the inspection visit report that the first respondent’s facilities were not sound proofed which appears to be a solution that may be considered. I’m not inclined to issue orders of permanent injunction in the circumstances of this case,” ruled the judge.
Sunlodges Kenya Ltd told the court that it had enjoyed a serene, peaceful and noise-free environment until recently when the hotel started the habit of operating and streaming loud music through amplified artificial sound systems within its premises thus denying it its right to a clean and healthy environment to continue with its accommodation business.
It argued that the beach hotel’s act of environmental pollution through over-gravitating amplified speakers resonates throughout its (petitioner) premises and neighborhood in deafening levels with no regard for the inconvenience to its personnel, guests and other people in the vicinity.
Sunlodges Kenya Ltd claimed that the loud live music had compulsorily exposed unwilling persons to hear noise raised to unpleasant levels violating the right of others to a peaceful, comfortable and pollution-free guaranteed by the constitution.
On their part, Safari Beach Hotel denied the allegations of operating loud live music through amplified artificial sound systems.
It stated the petitioner continues to enjoy a serene peaceful environment and any music from the hotel has been confined within the required legal limits.
Safari Beach Hotel said during any special activities with large gatherings, including festivities and weddings, it has put in place mechanisms to ensure peaceful and environmentally compliant coexistence with its neighbours.
