Church noise: Court overturns tribunal ruling that protected hotel serenity

Two hotels suffered a setback after the Environment and Land Court (ELC) overturned a decision by National Environment Tribunal (NET) ordering three churches to soundproof their premises to ensure sound generated during their worship is contained therein.

NET had found that Darajani Bridge Hotel and Bridge Hotel Limited were entitled to enjoy a clean and healthy environment and that the registered officials and trustees of Life Transforming Centre (appellant) and other two churches had violated that right.

The decision prompted Life Transforming Centre to appeal at the ELC, challenging the NET decision, an appeal which was allowed.

In allowing the appeal by the church, ELC ruled that it was satisfied that NET had no jurisdiction to entertain the case by the two hotels since it was not filed pursuant to a decision taken by National Environment Management Authority (NEMA) within its mandate.

“The court is further of the view that the proceedings and resultant decision by NET were a nullity for want of jurisdiction,” ruled Justice Angima of the ELC.

ELC noted that it was also debatable whether or not mere “inaction” by NEMA on a matter falling within its mandate can be the subject of an appeal within the meaning of Section 129 of Environment Management Control Act (EMCA).

The court further ruled that it takes the view that even though the control of noise pollution may have been within the mandate of NEMA under EMCA, the promulgation of the constitution 2010, expressly shifted the function to county governments.

“It is clear that the respondents’ (hotels) case was not predicated upon EMCA because the “decision” the subject of the case had nothing to do with the grant or refusal of a license, imposition of a condition or restriction on a license, amount of money or fee imposed by law or regulation or an improvement order,” ruled the ELC.

ELC noted that respondents’ case was simply that NEMA had failed or neglected to act on their complaint against the appellants (church).

“The court takes the view that even if Section 129[2] were to be considered, it would follow that the decision the subject of the case to the Tribunal could only be in respect of a matter which fell within the mandate of NEMA,” ruled the ELC.

In its appeal against NET decision, the church argued that the chairperson, vice chairperson and members of the tribunal erred in law and fact by entertaining a matter for which they had no jurisdiction.

The church further argued that the chairperson, vice-chairperson and members of the NET erred in law and fact by entertaining a case concerning noise regulation which is a devolved function in accordance with the constitution.

It also argued that NET erred in law and fact by finding it (church) had exceeded the maximum prescribed levels without a determinate, final and conclusive measurement of the noise levels.

At the NET, the hotels had argued that that the appellant and the other churches which operated within the vicinity of their premises were generating so much noise pollution which had adversely affected their hotel business.

The hotels argued that despite several complaints lodged with NEMA, it (NEMA) had failed to take steps under the EMCA to order the churches to mitigate or abate the noise pollution.

They further claimed that the appellant and other churches had continued with excessive noise pollution unbated with the consequence that they had suffered huge financial losses due to loss of clients.

The two hotels sought orders among them directing the churches to soundproof their churches to ensure that any sound from their respective churches is contained.

The church denied liability for the alleged noise pollution and contended that the noise generated was not in excess of the permitted noise levels within the meaning of the applicable law.

Two other churches also filed responses denying liability for noise pollution contending that they were simply exercising their constitutional freedom of worship and that they had taken adequate measures to contain any noise within the permissible levels.

However, NEMA did not file any response to the case at the NET and did not participate in its hearing.