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ELCPartially AllowedPetition dated 11/09/2023 (Kwale ELC)

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)

Environment and Land Court
14 March 2025
9,924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Ocean Village Club, an adults-focused accommodation business in Diani, Kwale County, petitioned the Environment and Land Court against its neighbour Safari Beach Hotel, NEMA and the County Government of Kwale, alleging that amplified live and streamed music from the hotel constituted noise pollution exceeding the 55-decibel limit for a mixed residential zone, infringing its right to a clean and healthy environment under Articles 42, 69 and 70. It sought declarations of violation, two permanent injunctions (against the hotel and against the regulators issuing licences), a declaration that the hotel's structures were unlawfully erected, damages for nuisance and costs. The hotel denied the allegations, impugned the Petitioner's noise surveys as unauthorised under Regulation 6, and relied on event licences. NEMA argued noise management is a devolved county function and that it has only a supervisory, coordinating role; the County Government filed no response. The court found the petition met the Anarita Karimi Njeru threshold. It accepted the noise survey evidence, including the second survey with proper EIA licences and calibration certificates, and held that the hotel's noise exceeded permitted levels; a licence is no defence to pollution. However, the court held the lead agency for measurements was the County Government, with NEMA only a coordinator, and cleared NEMA of wrongdoing since the Petitioner never complained to it. The court declined permanent injunctions, the unlawful-structures declaration and damages, instead fashioning remedies under Article 70 and section 3(3) of EMCA: quarterly joint noise monitoring reports to NEMA and the County, NEMA coordination, and a noise control and mitigation programme within six months. Costs were awarded against the 1st Respondent only.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petitioner's rights to a clean and healthy environment under articles 42, 69 and 70 have been infringed upon
  2. 2.Whether the petition discloses a cause of action against the 2nd Respondent
  3. 3.Whether the Petitioner is entitled to the orders sought
  4. 4.Costs of the petition

Key legal issues

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01

Whether the Petitioner proved infringement of its right to a clean and healthy environment

Holding

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

Reasoning

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.

p. 16
02

Whether the 2nd Respondent (NEMA) is liable for failure to act

Holding

No - no wrongdoing found on the part of the 2nd Respondent

Reasoning

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.

p. 16
03

Whether the court should grant the permanent injunctions and damages sought

Holding

No - the court fashioned supervisory and mitigation remedies instead, pursuant to Articles 23 and 70 and section 3(3) of EMCA

Reasoning

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.

p. 19
04

Whether the petition met the constitutional petition threshold

Holding

Yes - it satisfied the Anarita Karimi Njeru threshold

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 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. 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. 3.The 2nd Respondent shall coordinate the quarterly noise reporting and ensure joint inspections with the 3rd Respondent when required
  4. 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. 5.Costs of the Petition awarded in favor of the Petitioner as against the 1st Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 18

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

p. 19

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

p. 18

Damages for nuisance

The Petitioner led no authority on quantum and gave no basis for assessment

p. 19

Costs

Costs of the Petition are awarded in favor of the Petitioner as against the 1st Respondent.

Quotable passages

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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.
p. 16noise licence not a defence to pollution
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.
p. 19final orders - declaration of violation
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.
p. 19final orders - quarterly noise monitoring
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.
p. 20final orders - noise mitigation programme
Costs of the Petition are awarded in favor of the Petitioner as against the 1st Respondent.
p. 20final orders - costs
The Regulation in my view envisages the role of NEMA as a coordinator of the lead agencies and not NEMA as a lead agency.
p. 15NEMA's coordinating role under Regulation 6
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
p. 18businesses must not violate neighbours' environmental rights

Issues in the judgment

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minor

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

minor

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

minor

Ordering lettering skips letter (e) - the numbered final orders run a, b, c, d then f (costs)

material

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.