• Francis Obonyo
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High Court expounds on the Jurisdiction of the Magistrate’s Court

In the case of Mansur Sharif & Others V Casablanca Pub, Night Club and Restaurant Limited & Others. Misc. Application. No. 406 Of 2018 arising from HCCS No. 153 Of 2018 Before Hon. Lady Justice H. Wolayo on the 26th February 2019.

The plaintiffs sought several orders against the defendants, including declaratory orders that the business operations of the defendants violated the plaintiffs’ right to a clean and healthy environment by emitting noise beyond maximum permissible levels. The plaintiff argued that the high noise levels amounted to a breach of their constitutional duty and prayed that the court directs the defendants to pay the general and special damages, among other orders.

The application was before the court to mainly discuss the jurisdiction of the court to handle the matter and the existence of the cause of action. After a critical examination of the plaint, it follows that the suit was founded on valid causes of action as shown below;

  1. Noise emission under the common law tort of nuisance
  2. Right to a clean and healthy environment
  3. Allowing use of tobacco and other narcotic substances which circulate in the air and interrupt the quiet enjoyment of plaintiffs’ properties
  4. Financial loss suffered as a result of noise emissions.

Section 28 of the National Environment Act cap 153 provides that the National Environment Management Authority will establish criteria and procedures for the measurement of noise and vibration pollution; and the minimum standards for the emission of noise and vibration pollution into the environment. The environment enforces this section. Noise and Vibrations Standards and Control regulations, 2013.
Regarding civil action in the courts, regulation 43(2) entitles any person or group of persons to bring an action in a court of competent jurisdiction to stop, prevent or control the emission of noise from any source or place.

In regards to the jurisdiction, where a statute confers original jurisdiction on a subordinate court, the High Court has a duty to give effect to that statute and only exercise appellate jurisdiction at the appropriate time. Therefore, the Magistrates Court has jurisdiction to handle the matter and not the High Court.
It follows that the preliminary objection raised by counsel for the defendants /respondents succeeds.
Court gave the following orders;

  1. The plaintiffs bring an action for breach of statutory duties by the respondents under the Noise and Vibrations Standards and Control Regulations 2013 in the Magistrate’s Court.
  2. The plaintiffs pursue their right to a tobacco-free environment under the Tobacco Act. In the absence of a designated court, the court of the first instance is the Magistrate’s Court.
  3. If the plaintiffs have a cause of action under the rule in Ryland’s v Fletcher, they are free to amend pleadings to retain this specific cause of action only.
  4. The effect of these orders is that the applications for interim and temporary orders cannot stand as the Magistrate’s Court has jurisdiction to issue orders with similar effects under regulations 43 (8).
  5. Costs to the defendants in any event.