The Environment and Land Court has once again postponed a ruling involving BATUK and the Lolldaiga community for the fourth time.
During a court session today, Justice Antonina Kossy Bo said that she could not deliver the ruling as she had misplaced some pages of the written submissions filed by the parties for the ruling.
The Environment and Land Court in Nanyuki is set to determine whether to punish the British Army or refer the case brought by 1,496 members of the Lolldaiga community in Laikipia to the Inter-Governmental Liaison Committee.
The case, and its expected ruling comes as the Kenyan Parliament debates whether to ratify a new proposed Defence Cooperation Agreement (DCA) between the United Kingdom and Kenya, with focus on how to handle cases of malpractice.
In the petition before Justice Antonina Kossy Bor, the African Centre for Corrective and Preventive Action, an environmental non-governmental organization, has sued alongside the Lolldaiga community.
In the suit, Lolldaiga Hills Ltd, the British Army Training Unit in Kenya (Batuk) and the Batuk commanding officer are listed as respondents.
The Kenya Wildlife Service and the Kenya Forest Service are also enjoined in the matter as interested parties.
Justice Bor is expected to determine six questions related to the DCA that was adopted by the two countries on October 11, 2016. The agreement has become a point of contention in the suit.
Lolldaiga Hills has not submitted a defence of its own but has sought to be enjoined in Batuk’s written submissions.
The awaited ruling arises from the army’s request on April 21 last year to be stricken from the petition, claiming state immunity.
In her affidavit, the head of the British Defence Staff in East Africa, Brigadier Lucinda Caryl Westerman, told the court that the UK, as a foreign sovereign state, cannot submit to the jurisdiction of a Kenyan court.
The court is expected to determine whether Batuk and its commanding officer enjoy absolute state immunity.
The petitioners argue the British Army does not enjoy absolute immunity from liability for all the offences it commits.
The petitioners cite Article 6 (1) of the DCA: “Visiting forces (Batuk) shall be subject to, abide by and respect the Constitution, laws and regulations of the Host Nation (Kenya) at all times.”
“The subject of this petition, however, is damage to the environment, land, wildlife and property belonging to the host nation, which is not limited to the UK authorities.”
In its defence, Batuk agrees that it does not enjoy absolute state immunity but notes that the suit falls within a well-established doctrine of international law that bars courts from entertaining actions against foreign states with respect to sovereign acts.
Batuk’s lawyer Lawrence Ondieki says that the complaints arose from a fire sparked during a military training exercise in the Lolldaiga conservancy on March 25, 2021 that was sanctioned by the existing DCA.
“The military exercise is an international transaction of two sovereign governments and falls squarely within the instances where the court should grant immunity if asked to do so,” he says in his submissions.
The second question the court is expected to determine is whether the respondents have consented to be bound by Kenyan laws.
Lawyers Kelvin Kubai and Maxwell Gichuhi, for the petitioners, say that in the DCA, the court has the authority to assume jurisdiction on the environmental claims arising from the conduct of the military officers.
They base their arguments on reports that the officers were under the influence of cocaine at the time of the incident and the agreement does not include the use of narcotics as an act of sovereign nature that is subject to immunity.
In their submissions, they have attached a report by the UK’s Times newspaper published last year that showed six Batuk soldiers of the Second Battalion tested positive for heroin and cocaine after a medical test following the fire.
But in reply, the British Army has said that the petitioners have not produced any evidence in court to support the allegations.
The third question relates to whether the respondents can raise state immunity after consenting to be bound by the laws of Kenya.
The Lolldaiga community and the NGO have told the court that the UK government was initially entitled to state immunity but waived it in writing through the DCA.
Batuk has denied the allegation, arguing that the DCA elaborates on how to handle certain crimes and the state that will have jurisdiction over those crimes.
The fourth question is on whether the respondents are bound by Kenyan laws and international statues on environmental management.
The petitioners say that the UK and Northern Ireland are already signatories of the United Nations Convention on Jurisdictional Immunities of States and Their Property.
This means that the UK as a country cannot invoke immunity from proceedings in a court in another state where it has expressly consented to jurisdiction through an international agreement, a written contract or a declaration before a court.
But Batuk’s lawyer, Mr Ondieki, has argued that there is no basis for applying the convention in the suit because it has neither been signed nor ratified by Kenya.
Under Kenya’s Constitution, only treaties or conventions ratified by Kenya form part of the law.
The fifth question is on the Inter-Governmental Liaison Committee and if it inhibits the right to a fair hearing of the petition.
The petition shows that the committee is biased as it only consists of senior military officers of the UK Army.
The petitioners say that there are no community representatives and as such the sitting cannot deliver a fair hearing.
But the respondents argue that the DCA shows that the Inter-Governmental Liaison Committee is made up of officials from both governments.
According to the army, the DCA stipulates that all civil claims be handled by the committee, which is tasked with determining whether to compensate the victims and how much.
The last question is on whether the Environment and Land Court has jurisdiction to determine Batuk’s petition to be removed from the suit.
In their submissions, the Lolldaiga community and the NGO say that the court lacks the jurisdiction to deal with the application of state immunity.
Their lawyers told Justice Kossy Bor that the Kenyan Constitution only allows the court to address matters of the environment and land.
But the army, in its reply, says that it should not be referred to another court.
Its lawyer argues that the claim that a sovereign state cannot submit to the jurisdiction of a host state’s court is not about substantive law but merely a procedural act.
Lawyer Ondieki says that Batuk, as part of the UK government, lacks a separate legal entity and that means it cannot sue or be sued.
In the suit, the petitioners are seeking compensation under the Polluter-Pays Principle, saying that the fire destroyed more than 10,000 acres of land.
As a result of the fire, wildlife in the Lolldaiga conservancy escaped into peoples’ farms and destroyed crops, while the smoke that contained dangerous chemicals caused adverse health effects on people and livestock.
A ruling has been deferred thrice - from November 24 to November 25 and then to December 14 last year. It is expected to be delivered on Thursday, February 10.
