We have jurisdiction to deal with Batuk case, High Court rules
The Environment and Lands Tribunal has jurisdiction to hear the case brought by 1,496 community members against the British Army Kenya Training Unit (Batuk).
However, the court sitting in Nanyuki ruled that Lolldaiga residents who sued Batuk over a fire that destroyed vegetation on 10,000 acres of land must exhaust the dispute mechanism before going to court.
In a landmark decision handed down today morning, Judge Antonina Borr ordered the residents to refer the case to the Intergovernmental Liaison Committee after it emerged they had gone directly to court.
The judge ordered the disputing parties to take the case to the committee which was formed under the defense pact between Kenya and Britain and report back to the court within 14 days.
“The tribunal finds that the Government of Kenya and the United Kingdom and Northern Ireland, in the Defense Cooperation Agreement dated December 9, 2015, have waived diplomatic immunity to the extent of that agreement This court therefore has jurisdiction to hear the claims made in the petition,” the judge ruled.
The judge added: “The court agrees that the petitioners must exhaust the dispute resolution mechanism provided for in the Defense Cooperation Agreement.”
In that case, aggrieved residents of Lolldaiga and the African Center for Corrective and Preventive Action accused Batuk of starting a fire during a military training exercise that destroyed vegetation on 10,000 acres of land.
Lawyer Kelvin Kubai, who appeared in the Lolldoiga residents’ case, said he was satisfied with the decision as the court had proclaimed that Batuk did not enjoy immunity from liability for any civil or criminal offenses committed.
According to him, they were justified that the pact signed by the two governments foresees that the army in visit is subjected and obliged to respect the Constitution of the host nation.
“Going forward, we are likely to see more responsible Batuk operations in their military exercises because the perceived immunity bubble has burst,” Kubai said.
Residents who live near the Lolldaiga reserve that Batuk uses as a training ground say the fire has severely destroyed the rangelands that bring wild animals to their farms, causing huge monetary losses.
But Batuk in a preliminary objection invoked a claim for sovereign protection, saying the fire stemmed from a military exercise sanctioned by the UK and Kenyan governments away from the jurisdiction of a Kenyan court.
Lolldaiga Hills Limited, Batuk Commander and Batuk are listed as first, second and third defendants in the dispute, while Kenya Wildlife Service (KWS) and Kenya Forest Service (KFS) are named as interested parties.
Batuk’s lawyer, Lawrence Ondieki, had argued that the case was referred to the committee in accordance with the defense company agreement, adding that the DCA only allowed the local court to deal with criminal offenses involving British soldiers and that criminal matters should be left to the committee.
Initially, the ruling on the preliminary objection was first set for November 24 when Judge Borr announced that she was unavailable for the day and would issue the ruling the following day.
On November 25, Judge Borr told litigants that the decision was not yet ready and postponed it until December 14 when she delivered again on February 10, 2022.
Before the set date, Judge Borr informed the court that she was unable to make a decision after some pages of the case’s findings disappeared.
The ruling was eagerly awaited as it was set to set a precedent in another high-profile case involving the death of Nanyuki’s mother, Agnes Wanjiku Wanjiru, who was last seen with Batuk soldiers.
His body was discovered a few days later thrown into the hotel’s septic tank with stab wounds.
An investigation concluded in 2019 called on the government to track down and prosecute some of the Batuk soldiers who were at the hotel the night he died.