Exeter Pearl Apartments Management Ltd v Bar Next Door Ventures Limited t/a the Bar Next Door Bar & Grill & 6 others (Constitutional Petition E012 of 2024) [2025] KEELC 4115 (KLR)
The bottom line
#A Nairobi court dismissed a bid to shut down three bars over noise because the complainant blocked the NEMA expert from measuring noise at the actual premises.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC and the doctrine of exhaustion
The court has jurisdiction; the preliminary objection was misconceived. Section 129 EMCA is only activated by a decision of NEMA, and reliefs such as conservatory orders could not be granted by NEMA in any event.
The claim concerns breach of the right to a clean and healthy environment under Article 42, enforceable under Article 70. The ELC's jurisdiction is founded on Articles 69 and 70, Section 3(3) EMCA and Section 13(3) of the ELC Act. Section 129 EMCA applies only where NEMA has made an aggrieving decision, which is absent here. The exhaustion doctrine is not absolute; the Supreme Court in Nicholus requires a nuanced approach safeguarding access to justice.
Threshold for conservatory orders
The Applicant failed to meet the threshold; the application was dismissed.
The Applicant bore the burden of showing via expert evidence, as prescribed under Section 6 of the Noise Regulations, that emitted noise exceeded permissible levels. No expert report was filed with the Petition, and the Applicant denied the NEMA-designated lead expert access to the locus in quo, with the consequence that measurements were taken from a different point. The court found the conduct created a basis for adverse inference and questioned the bona fides of the complaint.
Legal principles established
#- The ELC retains original jurisdiction over environmental rights claims unless jurisdiction is specifically and expressly ousted in a constitutionally compliant manner; the exhaustion doctrine is not absolute and requires a nuanced, case-by-case assessment
- An applicant for conservatory orders must demonstrate a prima facie case with a likelihood of success, prejudice, and approach the court with clean hands
Court orders
#- 1.The Application dated the 28th February 2024 be and is hereby dismissed.
- 2.Costs of the Application shall abide the outcome of the Petition.
- Jurisdiction invoked
- Articles 42, 69 and 70 of the Constitution 2010; Section 3(3) EMCA; Section 13(3) Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- AOO & 6 others v Trustee, Nakuru Golf Club & 3 others (Environment and Land Petition E013 of 2025) [2026] KEELC 4658 (KLR)[2026] KEELC 4658 (KLR)22 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Exeter Pearl Apartments Management Ltd v Bar Next Door Ventures Limited t/a the Bar Next Door Bar & Grill & 6 others (Constitutional Petition E012 of 2024) [2025] KEELC 4115 (KLR)", Case Analysis (2025). Constitutional Petition No E012 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4115/eng@2025-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.