Garden & Ridgeways Residents Association (GARRA) v Taks & M Habanos Chill & Grill Limited, t/a Habanos Lounge & 7 others (Environment and Land Petition E067 of 2024) [2025] KEELC 5962 (KLR) (28 August 2025) (Ruling)
Neutral citation:
[2025] KEELC 5962 (KLR)
Republic of Kenya
Environment and Land Petition E067 of 2024
CG Mbogo, J
August 28, 2025
IN THE MATTER OF ARTICLES 19,20,21,22,23,28,40,42,53,60,69 AND 70 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTIONS 13 & 18 OF THE ENVIRONMENT & LAND COURT ACT
AND
IN THE MATTER OF THE ENVIRONMENT AND CO-ORDINATION (NOISE AND EXCESSIVE VIBRATION POLLUTION) (CONTROL) REGULATION, 2009
AND
IN THE MATTER OF THE NAIROBI CITY COUNTY ALCOHOLIC DRINKS CONTROL LICENSINC ACT
Between
Garden & Ridgeways Residents Association (GARRA)
Petitioner
and
Taks & M Habanos Chill & Grill Limited, t/a Habanos Lounge
1st Respondent
Vineyard Ridgeways Limited, t/a Vineyard
2nd Respondent
Bar Next Door Ventures Limited t/a The Bar Next Door
3rd Respondent
Dnm Creatives Limited, t/a Dnm Events Wedding & Conferences
4th Respondent
Maline Gardens Limited, t/a Maline Gardens
5th Respondent
Rev Julian N Kyula, Pst Donald Gichane K & Mrs Jemimah N. Nziola (Sued as Trustees of the Purpose Centre Church Ruach Tabernacle)
6th Respondent
The County Government of Nairobi
7th Respondent
National Environment Management Authority (NEMA)
8th Respondent
Ruling
1.Before me is the notice of motion dated 7th April, 2025 filed by the Petitioner/Applicant and it is expressed to be brought under Articles 159 & 23 of the Constitution of Kenya, and Section 5 of the Judicature Act seeking the following orders:-1.Spent.2.Spent.3.That Mr. Maurice Asira the Director Manager of Taks & M Habanos Chill & Grill Limited be held to be in contempt of the court order given by this honourable court on 17th October, 2024.4.That the 1st respondent Messrs. Taks & M Habanos Chill & Grill Limited T/A Habanos Lounge be held to be in contempt of this court’s order given on 17th October, 2024.5.That upon conviction, the said Mr. Maurice Asira and any other director/manager involved in running of the 1st respondent be committed to jail for a period not exceeding 6 months for contempt of court.6.That upon conviction, the 1st respondent Taks & M Habanos Chill & Grill Limited T/A as Habanos Lounge be sentenced to pay such a fine as this honourable court will deem appropriate for contempt of court.7.That this honourable court do make such other order as will meet the interest of justice.8.That the 1st respondent be condemned to pay costs of this application.
2.The application is premised on the grounds inter alia that on 17th October, 2024 this court granted an order restraining all the respondents from emitting noises in excess of the maximum levels provided by noise and sound pollution regulations 2009.
3.The application is supported by the affidavit of Mary Ann Wariithi, the chairperson of the petitioner/applicant sworn on even date. The petitioner/applicant deposed that the orders given in court on 17th October, 2024 were given in the presence of Mr. Chelongo, the learned counsel for the 1st respondent, and the same was communicated vide the letter dated 30th October, 2024. That despite this knowledge, the 1st respondent has continued to violate the noise pollution regulations and has not ceased. Further, that they retained a pollution expert who measured noise emitted from the 1st respondent and it was found to have exceeded the permitted night time limit.
4.The petitioner/applicant further deposed that there have been several interventions by the Nairobi County Authorities to curb noise pollution by the 1st respondent but the said party has no regard for other people or respect for authority of the court, and is hellbent on doing what they want with impunity.
5.This application was further supported by the affidavit of Almir Jose Rebeiro De Sousa sworn on 4th April, 2025. He confirmed the averments raised by the petitioner/applicant in their supporting affidavit.
6.The application was canvassed by way of written submissions. The petitioner/applicant filed its written submissions dated 27th May, 2025. The petitioner/applicant submitted that regulations 3 and 5 of the National Environment Management Act and the Environmental Management and Coordination (Noise and excessive vibrations pollution (control) Regulations 2009, legal notice no, 61 provide permissible noise levels for residential or mixed commercial area to have maximum noise levels of 50 decibels during the day and 35 decibels at night. It was submitted that the 1st respondent exceeded the noise levels and portrayed impunity. Further, that unless this court exerts its authority to enforce compliance with the orders, the 1st respondent will not care. Reliance was placed in the case of Shimmers Ltd v National Bank of Kenya Limited [2015] eKLR.
7.The 1st respondent did not file its response to the application, and neither did it file written submissions. As it is, the application is unopposed. However, the court needs to ascertain that which constitutes an issue for determination, whether the petitioner/applicant is deserving of the orders sought.
8.The law is very clear on the obedience of the court orders and gives consequences of such disobedience. Order 40 Rule 3(1) of the Civil Procedure Rules provides that:-
9.Further Section 63 (c) of the Civil Procedure Act provides that: -
10.The provisions of the Environment and Land Act also buttress the above position. Section 29 of the said Act reads as follows: -
11.On 17th October, 2024, this court granted orders restraining the 1st to 6th respondents from playing loud music and creating noise beyond the maximum noise levels permitted pursuant to the noise and sound pollution regulations (2009). These orders were issued in the presence of the learned counsel for the petitioner/applicant and the learned counsel for the 1st, 4th, 5th, 6th and 7th respondents. The said orders were served vide the letter dated 30th October, 2024. According to the petitioner/applicant, the 1st respondent has disobeyed these orders and continues to exceed the noise limit permitted at night. This position was confirmed by Almir Jose Rebeiro De Sousa in his supporting affidavit. From the affidavit evidence relied upon by the petitioner/applicant, it appears that the 1st respondent is in total disobedience of these orders, and with no respect for the rule of law. These allegations have not been disproved and it is clear that the 1st respondent undermines the authority of this court. When such conduct is brought to the attention of this court, it is dealt with a lot of seriousness so as to prevent similar or repeated occurrences in the future. The orders of this court are not issued in vain and must at all times be respected and complied with unless otherwise shown.
12.From the material placed before me, it is my finding that the 1st respondent is in contempt of the court orders issued on 17th October, 2024 and therefore liable for punishment. This court cannot allow the 1st respondent to get away with deliberate disobedience of the orders of the court.
13.I find merit in the notice of motion dated 7th April, 2025, and I therefore direct that Mr. Maurice Asira the Director Manager of Taks & M Habanos Chill & Grill Limited, the 1st respondent be arrested and arraigned in court on 22nd October, 2025 and show cause why he should not be committed to prison or otherwise penalized for contempt of court. I make no orders as to costs.Orders accordingly.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 28TH DAY OF AUGUST, 2025.HON. MBOGO C.G.JUDGE28/08/2025.In the presence of:Mr. Benson Agunga - Court assistantMr. Mbigi for the Petitioner/ApplicantMr. Kiptoo appearing alongside Mr. Chelongo for the 1st RespondentMs. Gathogo for the 6th RespondentMs. Mbirwe holding brief for Mr. A.G.M. Kamau for the 5th RespondentMs. Nekesa holding brief for Ms. Majune for the 8th RespondentMr. Attalo holding brief for Mr. Maalim for the 7th RespondentMr. Mutonyi for the 1st Respondent