Residents of Lolldaiga in Laikipia North have been directed to physically serve Defence Cabinet Secretary Eugene Wamalwa with an application summoning him to appear before a Nanyuki court.
On June 1, the 1,496 residents filed for summons demanding Mr Wamalwa and the United Kingdom Secretary of State for Defence Ben Wallace be summoned before court over a fire that was sparked by training exercise involving British soldiers on March 25, 2021.
The Environmental and Land Court Justice Antonina Kossy Bor, on Tuesday, told the community lawyers – Mr Maxwell Gichuhi and Mr Kelvin Kubai - to ensure that the summon application is served to Mr Wamalwa in his office.
“You have to serve the Cabinet Secretary for Defence physically at his office because probably the email address you used to serve him is not working,” Justice Bor told the petitioners.
This is after lawyer Gichuhi said he had sent the application to Mr Wamalwa’s office through an email address.
The residents want the two senior government officials to clarify before court on the progress of the Inter-Governmental Liaison Committee that was tasked with determining if and how much to compensate victims affected by the British Army Training Unit in Kenya (BATUK) acts.
But BATUK – through lawyer Lawson Ondieki – told the court it had written to the petitioners on May 16 over the committee’s progress but the latter moved to court seeking summons for the two Defence bosses.
“Procedures for compensation by the committee are into consideration. We wrote a letter and copied the petitioners’ lawyers. I will ask for official communication from the committee so as to share it with the petitioners,” Mr Ondieki said.
Mr Gichuki admitted that they received the letter on May 16 outlining the progress of the committee but went ahead to file an application for summons two weeks later.
Justice Bor said the petitioners had not exhausted all dispute resolution mechanisms provided for under Defence Cooperation Agreement (DCA).
She directed Mr Ondieki to engage all the parties in the suit on the progress of the committee.
“Mr Gichuhi and Mr Kubai, are you aware that a mediation mechanism was rolled out? Before running to court, know that there are other means of resolving disputes. Have an open mind on this matter,” Justice Bor said.
“On this matter, there was communication made by Mr Ondieki to the petitioners and this shows that there is goodwill. We are an institution that performs within the law,” she added.
She said she would issue further directions when the matter comes for mention on July 6.
On March 10, Justice Bor issued guidelines on how the dispute is to be resolved before the committee. She directed the relevant government authorities in both countries to investigate the claims made in the lawsuit.
“Both authorities will also be required to collect and produce the evidence in accordance with Article 11 of the Defence Cooperation Agreement (DCA) before presenting it to the committee,” she said.
The judge also ordered the committee to meet in Kenya with a view of 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 were liable for the claims, the relevant authorities in Kenya would be required to submit a report to their counterparts in the UK.
“The UK government will then pay prompt and adequate compensation to the petitioners as provided in Article 11 of the DCA,” the judge said.
The court had further ruled that Kenyan courts have jurisdiction to hear and determine criminal and civil matters involving British soldiers.
The ruling meant that Kenyans and local authorities could now sue British soldiers and the British Army.
Justice Bor argued that the UK government had waived its state immunity by signing the Defence Cooperation Agreement (DCA) in 2016.
The community, which sued together with African Centre for Corrective and Preventive Action (an environmental group), sought compensation for the fire at the Lolldaiga Hills Conservancy.
The fire prompted wildlife from the conservancy to escape into peoples’ farms and destroy crops, while the smoke that contained dangerous chemicals caused adverse health effects on people and livestock.