High Court refuses to hear noise case

Kampala. The High Court yesterday dismissed a case by residents in the upscale Kololo suburb, who had sued seven bars in the neigbourhood, for alleged noise pollution.
The judge advised them to seek redress in a magistrate’s court.

Kampala High Court Judge Henrietta Wolayo ordered the residents to pay costs of the case to the operators of the implicated bars and their landlords who had been sued for allegedly emitting noise contrary to environment regulations.

The residents had also sued Kampala Capital City Authority (KCCA) and National Environment Management Authority (Nema) for failing to stop the accused bars from making noise.
The bars include Casablance Pub, Night Club and Restaurant, H2O Bar, Restaurant and Lounge, Big Mike’s, Bubbles O’Leary’s, Atmosphere Bar and Lounge as well as Wave Lounge.

“…Noise and Vibrations Standards Control Regulations 2013 imposed upon occupiers, owners a duty to control noise levels and breach of that duty lead an administrative action by local authorities or penal consequences or an aggrieved person or class of persons can bring an action under the regulations. By implication, the plaintiffs cannot bring an action under the common law tort of nuisance when there is a written law that regulates their complaint,” the judge ruled.

The terms
Justice Wolayo ruled that under the Noise and Vibrations Standards and Control Regulations 2013, the complainants can only file their case of alleged breach of statutory duties against the accused parties in the Magistrate’s Court.

“The plaintiffs will pursue their right to tobacco free environment under the Tobacco Act. In the absence of designated court, the court of first instance is the magistrate’s court,” Justice Wolayo ruled but advised that the Kololo residents could amend their suit to retain a specific cause of action that is qualified to be handled by the High Court.

On the residents’ claim of a right to a clean environment, the judge ruled: “Although this cause of action seems to be grounded in the constitutional law, it is based on the same facts that give rise to a statutory action. The declaratory order sought is not available under the Regulations which means this cause of action has to give way to the action envisaged by the regulations.”

The court ruling followed a preliminary objection raised by the bar operators through their lawyer, Mr Jonny Barenzi.
He had challenged the legality of the case and the jurisdiction of the High Court to handle the matter.

It is alleged that five years ago the business people started the bars and nightclubs that have played or hosted music concerts, loud public address systems, late night parties, engaged in and promoted music rehearsals for different musicians which feature electronically amplified guitars, organs, drums, flood lights, human voices, as well as excessive boisterous yelling, whistling, clapping and foot stomping noises.

The residents stated that this excessive noise is beyond the maximum permissible levels and has violated their right to a quiet, peaceful and healthy environment.
However, the residents can now file the case afresh in the magistrate’s court and seek redress.

Background
Closure of bars. KCCA on saturday closed two bars (Big Mike’s bar and Atmosphere Lounge) in Kololo over noise pollution.

The law. Under the Noise Standards and Control Regulations, noise is measured in logarithmic units called decibels (dB). In general environment, noise should be 45dB day and night and 35dB for places which require minimum noise such as libraries, recreational areas, hospitals and institutions of higher learning, among others.

Experts. According to Ms Jennifer Kutesakwe, a senior environment inspector at the National Environment Management Authority (Nema), the maximum noise standard for residential areas during day is 50dB and 35dB at night while for places mixed with commercial, entertainment and residential facilities it is 55dB (day) and 35dB (night).

has to be at 60dB during day and 50 at night while for the industrial areas, it is 70dB (day) against 60dB at night.

[email protected]