Sunlodges Kenya Limited (Suing on its own Behalf and on Behalf of the Residents of Diani Area Kwale County) v Alliance Development Limited t/a Safari Beach Hotel & 2 others (Environment & Land Petition E001 of 2023) [2025] KEELC 1277 (KLR)
The bottom line
#A Kenyan court ruled a hotel's loud music violated neighbours' environmental rights, but ordered noise monitoring instead of shutting it down.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner's rights to a clean and healthy environment under articles 42, 69 and 70 have been infringed upon
- 2.Whether the petition discloses a cause of action against the 2nd Respondent
- 3.Whether the Petitioner is entitled to the orders sought
- 4.Costs of the petition
Key legal issues
#Whether the Petitioner proved infringement of its right to a clean and healthy environment
Yes - noise reports showed noise above the 55-decibel permitted limit for Zone A, attributed to the 1st Respondent; the 1st Respondent violated Articles 40, 42 and 43
Two environmental noise survey reports (19/07/2023 and 17/01/2024) showed noise levels above the 55-decibel statutory limit for a mixed residential zone, attributable to amplified speakers at Safari Beach Hotel. A customer review and declined bill corroborated disturbance. The court held that a noise licence is no defence, as licence conditions could not be verified and no licence covered the December 2023 period surveyed.
Whether the 2nd Respondent (NEMA) is liable for failure to act
No - no wrongdoing found on the part of the 2nd Respondent
Noise management was a devolved function under Schedule 4 Part 2 of the Constitution; the lead agency was the County Government of Kwale. NEMA's role is coordination under section 9(2) of EMCA. The Petitioner never lodged a complaint with NEMA to trigger notification of the lead agency, and NEMA acted on becoming aware of the petition by conducting inspections.
Whether the court should grant the permanent injunctions and damages sought
No - the court fashioned supervisory and mitigation remedies instead, pursuant to Articles 23 and 70 and section 3(3) of EMCA
The 1st Respondent's operations predate the Petitioner's, and both establishments are entitled to carry on business. The court held the noise can be monitored, mitigated and remedied (including sound-proofing), so permanent injunctions were disproportionate. It instead ordered joint quarterly noise monitoring reports to NEMA and the County Government, NEMA coordination, and a noise control and mitigation programme within six months. Damages failed for lack of submissions on quantum.
Whether the petition met the constitutional petition threshold
Yes - it satisfied the Anarita Karimi Njeru threshold
The petition specified the constitutional provisions allegedly violated (Articles 42, 43, 69, 70), the persons responsible, the manner of violation, facts and reliefs sought, satisfying the requirement of precision in Anarita Karimi Njeru v Republic and Rule 10(1) of the Mutunga Rules.
Legal principles established
#- A noise licence is not a complete defence to noise pollution; a licence does not absolve an operator from complying with permissible noise levels
- Under Regulation 6 of the Noise Regulations, the lead agency for noise measurements for county-devolved functions is the County Government, with NEMA acting only as coordinator
Court orders
#- 1.It is declared that the 1st Respondent has violated the Petitioner's Right to a clean and healthy environment and Economic and Social rights as enshrined in articles 40, 42 and 43 of the Constitution
- 2.The 1st Respondent and the Petitioner shall continually monitor and provide a report of the noise levels on at least quarterly basis to the 2nd Respondent and the 3rd Respondent County Government of Kwale for monitoring purposes
- 3.The 2nd Respondent shall coordinate the quarterly noise reporting and ensure joint inspections with the 3rd Respondent when required
- 4.The 2nd Respondent shall assist the 1st Respondent to develop and implement a noise control and mitigation program within 6 months of the date of the judgment aimed at enabling the 1st Respondent to meet the prescribed noise standards
- 5.Costs of the Petition awarded in favor of the Petitioner as against the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(1)(c) of the Constitution; Section 13 of the Environment and Land Court Act; Section 3(3) of EMCA; Articles 23 and 70 of the Constitution
Relief refused
#Permanent injunction against the 1st Respondent prohibiting live/streamed music and noise
The court held there should be room for co-existence as the 1st Respondent's actions can be monitored, mitigated and remedied, including sound-proofing
Permanent injunction against the 2nd and 3rd Respondents prohibiting issuance of licenses/approvals for loud music
The prayer as couched was too wide; each application must be considered on its own facts and merit
Declaration that the 1st Respondent erected unlawful structures without NEMA approval and development permission
NEMA approval was proved (Approval No. NEMA/SPA/5933); development permission issues lie before the County Physical Planning and Land Use Planning Liaison Committee; no evidence of lack of approval
Damages for nuisance
The Petitioner led no authority on quantum and gave no basis for assessment
Costs
Costs of the Petition are awarded in favor of the Petitioner as against the 1st Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
While having a license to operate a potentially noisy business may be a requirement, it is not a complete defense to noise pollution. In my view it cannot be a defence.
It is declared that the 1st Respondent has violated the Petitioner's Right to a clean and healthy environment and Economic and Social rights as enshrined in articles 40,42 and 43 of the Constitution.
To preserve and maintain public health and the environment the 1st Respondent and the Petitioner shall continually monitor and provide a report of the noise levels on at least quarterly basis to the 2nd Respondent and the 3rd Respondent County Government of Kwale for monitoring purposes.
In addition to (b) above the 2nd Respondent shall assist the 1st Respondent to develop and implement a noise control and mitigation program within 6 months of the date of this judgement aimed at enabling the 1st Respondent to meet the prescribed standards on noise levels at any time.
Costs of the Petition are awarded in favor of the Petitioner as against the 1st Respondent.
The Regulation in my view envisages the role of NEMA as a coordinator of the lead agencies and not NEMA as a lead agency.
It is open the operators of leisure and social places to ensure that they conduct their businesses in a manner that does not violate the rights of others
Issues in the judgment
#Declaration in the final orders refers to Articles 40, 42 and 43, but the pleaded declaration (prayer (a)) and the judgment's analysis centre on Articles 40, 42 and 43 with Article 40 (property) never independently analysed; the petition framed the claim under Articles 10, 42 and 69
The judgment at paragraph 115 attributes section 3(3) of EMCA as a quotation but the text quoted is in substance Article 70-type redress provision; also section 5(2) of the County Governments Act is cited in submissions while the quote appears under EMCA discussion
Ordering lettering skips letter (e) - the numbered final orders run a, b, c, d then f (costs)
The 3rd Respondent (County Government of Kwale) is found to have violated the Petitioner's rights in the analysis, yet no order is issued against it beyond the monitoring/coordination directions and costs are not awarded against it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sunlodges Kenya Limited (Suing on its own Behalf and on Behalf of the Residents of Diani Area Kwale County) v Alliance Development Limited t/a Safari Beach Hotel & 2 others (Environment & Land Petition E001 of 2023) [2025] KEELC 1277 (KLR)", Case Analysis (2025). Petition dated 11/09/2023 (Kwale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1277/eng@2025-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.