Loud music in Kenya neighbourhoods illegal regardless nature of your business

Public entertainment speakers. [Courtesy] You have a right to a quiet environment at all times, the Kenyan laws say. Article 42 (a) of the Kenyan Constitution says: "Every person has the right to a clean and healthy environment, which includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures." Article 70 of the Constitution says that a complainant does not have to prove any loss or injury suffered for the grievance to be declared valid in court. Article 70 (1) of the Constitution says: "If a person alleges that a right to a clean and healthy environment recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter." Sub-section 3 of Article 170 says: "An applicant does not have to demonstrate that any person has incurred loss or suffered injury." On Wednesday, October 12, journalist Trevor Ombija drew public criticism when he asked to soundproof the house of a Kileleshwa resident who had complained about noise pollution from a restaurant linked to the media personality. Emma Too, a model, had complained that Samaki Samaki Seafood and Jazz restaurant located on Othaya Road, adjacent to her apartment, played loud music, causing her sleepless nights. Too said she tried in vain to reach out to the shareholders of the restaurant, Trevor Ombija included. According to her, her complaint was about the loud music that could be resolved by having the restaurant play its music at a lower volume. Instead of doing that, Too said, Ombija suggested that Samaki Samaki soundproofs her house upon getting a permit from the Nairobi County Government and the apartment landlord's approval. Ombija further said in a meeting with restaurant owners and residents on Tuesday that "complaints have to surpass half of the area's occupancy for them to be valid". The law refutes this claim. Article 170(3) of the Constitution suggests that even just one complaint is enough for it to be valid. The Nairobi City County Public Nuisance Act 2021 says residents have a right to a quiet environment, regardless of the nature of businesses around. Section 20 of the Act states: "A person shall not in any street or in any shop, business premises or any other place adjoining any street to which the public are admitted, play, operate, cause or allow to be played or operated, any musical instrument, wireless, gramophone, amplifier or similar instrument thereby making, causing or authorising noise to be made which is loud and continuous, or repeated as to constitute a nuisance to the occupants or dwellers of any premises in the neighbourhood or to passersby on the street." The law further protects Nairobians in residential areas against public nuisance. Sub-section 3 of the Act says: "Any person who, in any part of the jurisdiction of the city county, other than the industrial or light industrial zones, causes or allows to be made any noise which is so loud, continuous or repeated as to constitute a nuisance to the occupants of any premises in the neighbourhood commits an offence." Another law that protects Kenyans against noise pollution is the Environmental Management and Co-ordination (Noise and Excessive Vibrations Pollution) (Control) Regulations 2009. The Regulations define noise pollution as the emission of uncontrolled noise that is likely to cause danger to human health and damage to the environment. Excessive vibration, on the other hand, is defined as the presence of vibrations that are of intensity, duration or character that causes an annoyance or tends to cause adverse psychological or physiological effects to people and damage to personal or real property. Factors that exacerbate noise pollution, for instance, the time of day, proximity to residential areas, the recurrent nature of the noise, the intensity of the noise, whether the noise has been enhanced by any electronic or mechanical means such as an amplifier, are considered during the determination of a complaint. It is important to determine what constitutes a residential area in order to fully ascertain whether an offence of noise pollution or excessive vibration has taken place as the regulations provide for maximum permissible noise levels in different areas. Kileleshwa is a residential area as per the Nairobi County Government, classified as Zone 4 - a prime high-income low-density residential neighbourhood. As a result, the noise levels in this neighbourhood should be highly controlled. Section 6 (2) of the Regulations prescribes that NEMA measures the level of noise pollution. In 2017, petitioners Ali Ronow Hassan Haji and Fred Kondo Athuok sued Airtel and Dixons Electronics Limited claiming that Airtel and Dixons operate a shop in Phoenix House located on Kenyatta Avenue within the Nairobi central business district from which noise was emanating from the loudspeakers placed at the shop's entrance. They claimed that loud music was played in that shop while an announcer intermittently advertised the products available for sale in the Airtel shop. Justice Kossy Bor of the Environment and Land Court in Nairobi on February 19, 2019, found the respondents guilty of noise pollution and ordered them to discontinue the loud music and announcements. "The court grants an order compelling Airtel and Dixons Electronics Limited, their agents or servants to discontinue all noise pollution being caused by them or being permitted to be caused by them in the Airtel Shop in Phoenix House, Kenyatta Avenue in the Central Business District of Nairobi," Justice Bor ruled. The judge further directed the Nairobi County Government and NEMA to enforce the court orders. Justice Bor further asked Airtel and Dixons Electronics to pay the petitioners the lawsuit costs.

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