The Environmental and Land Court (ELC) has ordered three clubs and a Church in Mirema estate closed and fined Sh5 million over noise pollution.
ELC Judge Judy Omange ruled in favour of Amani Residents Welfare Association/Mirema in an affidavit submitted by Dominic Mbigi, Chairman of the association, and John Koogi, a resident of the estate who highlighted the challenges they face.
The association in their petition named Cocorico Wines, Paris Lounge and Grill, Tessara Entertainment and Trinity House International Ministry had violated the residents' right to a clean and healthy environment as enshrined in Article 42 of the Constitution.
The court in its ruling found that the loud noise from the establishments had violated the residents' rights and awarded them Sh5 million in compensation for noise pollution caused by the three bars and a church operating in the area.
“The Petitioner is therefore in order to seek refuge from this court to protect the Right of its residents to a clean and healthy environment and also ensure that the Children of Mirema Drive grow up in an environment that guarantees their right to life, survival, wellbeing, protection and development as provided by the Children Act. 32,” the Court ruled.
In addition, both the National Environmental Management Authority (Nema) and the Nairobi City County were found liable for failing in their duties to ensure that the residents' rights were protected.
The residents in their petition pointed out that the entertainment venues and alcoholic-selling establishments played loud music, disrupting residents’ sleep while the Church, on the other hand, was accused of using loud sound systems for preaching and ministration, causing disturbances, especially on Friday nights and Sunday.
They also raised concerns about the exposure of children to inappropriate music content and indecent behavior by patrons of these establishments.
“The noise emanating from the Respondents has interfered with learning at the schools which are situated in the estate and contend that the children in the estate are exposed to vile and obscene music content as well as indecent behavior by the patrons and revellers who visit the establishments,” they added.
One respondent was accused of discharging raw sewage into an open drainage, causing a stench and violating residents’ rights to live in dignity.
The petitioners further contended that some landlords have been occasioned losses as tenants have been forced to move out of the properties due to the incessant noise by the respondents.
The respondents denied the allegations and argued that the noise levels weren’t adequately measured, the court referenced previous cases indicating that factors beyond noise level measurements could be considered to determine if the noise was unreasonable.
At the end the court found in favour of the petitioners, affirming the infringement of residents’ rights and the failure of the 5th (Nema) and 6th Nairobi County) respondents to fulfill their obligations.
“In light of the above, I find that the petitioner has proved infringement of its residents’ rights as enshrined in Article 40 and 42 of the constitution,” the court ruled.
The court awarded Sh5 million to the petitioners, apportioning liability among the respondents based on their degree of contribution to the issue.
At the same time the court issued several declarations and orders, including canceling licenses issued for the sale of alcoholic drinks within the residential estate.
“In order of by the Honourable Court under Article 70 of the Constitution cancelling the licence issued by 6th respondent to the 1st -3rd respondents for the sale of alcoholic drinks within a residential estate,” it ruled.
The court also ordered the OCS Kasarani Police Station and or Roysambu Assistant County Commissioner does assist in the implementation of the orders of this Honourable Court.
“The people of Kenya can only realize the promise of the Constitution of Kenya if public servants are responsive to the concerns of citizens while it is appreciated that the government and county agencies and hampered in their work by financial challenges, the least that citizens can expect is that when they write a letter of complaint, it will be responded to if not addressed immediately,” said.
Data from the Nairobi County liquor board shows that in 2021, Starehe constituency had the highest number of registered liquor stores (88), followed by Roysambu (where Mirema is located, 48). Lang’ata and Dagoretti North both had 35 new wines and spirits shops.
According to the national environment management and coordination regulations, no person should make or cause to be made any loud, unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose, health or safety of others and the environment.
Nairobi governor Johnson Sakaja had last year ordered the closure of a number of clubs over noise pollution leading to uproar from the stakeholders in the industry who argued that the move would lead to the loss of jobs.
Members of the County Assembly (MCAs) of Nairobi also moved fast to stop the directive by adopting a report that required Mr Sakaja to lift the order on the closure of the nightclubs.
A spot-check carried out by Nation following Mr Sakaja’s directive revealed that most clubs and bars operating in residential areas had not complied with the regulations over noise pollution.
