A Nanyuki court yesterday ruled that British Army is not immune to prosecution over fire in Lolldaiga in March, last year.
The Environment and Land Court judge Justice Antonina Kossy Bor said Kenyan courts have jurisdiction to hear and determine criminal and civil matters involving the British Army Training Unit in Kenya (Batuk).
In a landmark ruling delivered yesterday, however, said that even though local courts had the jurisdiction to determine matters involving Batuk, the petitioners had not exhausted all dispute resolution mechanisms provided for under DCA.
“In this matter, I agree with the respondents, Batuk and Lolldaiga Hills Ltd, that the petitioners moved to court before lodging their complaints to the alternative dispute resolution mechanisms in the agreement,” she said.
Justice Bor ordered the residents to refer the matter to the Intergovernmental Liaison Committee after it emerged that they had gone directly to the court.
The judge ordered the parties in the dispute to file the matter before the committee that was formed under the defense pact between Kenya and Britain and report back to the court in 14 days.
“The court finds that the government of Kenya and the United Kingdom and Northern Ireland in the Defense Co-operation Agreement dated December 9, 2015, waived diplomatic immunity to the extent of that agreement.
This court, therefore, has jurisdiction to deal with the claims made in the petition,” the judge ruled.
The judge also ordered the committee to meet in Kenya with a view to establishing whether Batuk, its members, employees or agents are liable for the claims made by the petitioners.
She said that if the committee establishes that the soldiers are liable for the claims, the relevant authorities in Kenya will be required to submit a report to their counterparts in the UK.
The DCA stipulates that all civil matters be heard before the committee, which comprises members of the UK and Kenyan governments.
The committee is tasked with determining if and how much to compensate victims affected by Batuk acts.
The ruling yesterday showed that the United Kingdom (UK) government had waived its state immunity by signing the Defence Co-operation Agreement (DCA) in 2016.
The ruling comes as Batuk faces a series of crises emerging from disciplinary issues.
The ruling, anchored on the DCA, gives power to communities and local authorities to sue and prosecute the British Army.
She made the ruling in a case brought by the Lolldaiga community following a fire sparked by training exercises involving British soldiers.
The community sued, together with the environmental group African Centre for Corrective and Preventive Action, seeking compensation for the fire at the Lolldaiga Hills Conservancy on March 25, 2021.
The residents who live in the vicinity of the Lolldaiga conservancy which Batuk uses as a training ground claim the fire badly destroyed the rangelands pushing wild animals to their farms occasioning huge monetary losses.
But Batuk has, in a preliminary objection, invoked a claim of sovereign protection, saying the fire arose from a military exercise sanctioned by the governments of the United Kingdom and Kenya immune from the jurisdiction of a Kenyan court.
Batuk’s lawyer Lawrence Ondieki had argued that the matter is referred to the committee as per the Defence Corporation Agreement, adding that the DCA only allows the local court to handle criminal offences involving British soldiers and criminal matters to be left to the committee.
