Outrage as 5 Kenyan litigants in British Army case arrested

Lolldaiga community outside Nanyuki Police Station

Members of Lolldaiga community outside Nanyuki Police Station on April 6, 2022. The arrest of five elderly members of the community in Nanyuki on Tuesday night has sparked uproar, with the state accused of intimidating them to drop a civil suit against the British Army Training Unit in Kenya (Batuk).

Photo credit: James Murimi | Nation Media Group

The arrest of five elderly members of the Lolldaiga community in Nanyuki on Tuesday night has sparked uproar, with the state accused of intimidating them to drop a civil suit against the British Army Training Unit in Kenya (Batuk).

Police arrested Mr John Kiunjuri, Ms Gathoni Murage, Ms Lucy Wambui, Mr Gabrielle Ngata and Mr Duncan Waithaka at around 5pm in Mukima village, Laikipia East sub-county, and detained them at the Nanyuki Police Station before releasing them.

The arrest came hot on the heels of the British Army’s notice to appeal a High Court decision that rejected Batuk’s claim of state immunity, finding it subject to Kenyan laws.

In the notice filed last week in the Environment and Land Court in Nanyuki, Batuk, through its lawyer Lawson Ondieki, said it was dissatisfied with the March 10 ruling of Justice Antonina Kossy Bor.

Key respondents

Speaking to journalists on Wednesday, Mr Kelvin Kubai, the lawyer representing 1,496 community members, said the arrested villagers are key respondents in the ongoing appeal in a Nyeri court.

Detectives from the Directorate of Criminal Investigations (DCI) prevented the Nation from taking photos of the arrested people and a reporter’s phone was confiscated and kept by officers for the better part of Wednesday morning.

The elderly villagers were grilled by the officers in a closed-door meeting.

Mr Kubai said the police accused the suspects of soliciting money from members of the community.

"The members were raising money to facilitate the appeal that has been lodged by Batuk and file a fresh one at the Intergovernmental Liaison Committee per the court orders," Mr Kubai said.

"This is a class suit and the community needs funds to defend this case. This is pure intimidation."

Funds collection

He said community members were willingly donating between Sh500 and Sh1,000, which was being collected by the arrested persons.

Laikipia East sub-county Police Commander John Tarus confirmed that the arrested people were freed on bond.

"It is true that we had arrested the five persons after some complainants told us that they were being extorted Sh1,000 each to register as members of the group,” he said by phone.

“However, we have (investigated) and ascertained that they were gathering resources to cater for the court case.

"Mobilising funds for the suit is perfectly in order. We will investigate other claims brought to our attention."

Batuk and Lolldaiga Hills Ltd have been embroiled in a dispute with 1,496 residents of the Lolldaiga community in Nanyuki and the African Corrective and Preventive Action (ACPA), an environmental group.

Fire

The community and ACPA (the petitioners) accuse the UK military of starting a fire during a training exercise at the Lolldaiga Conservancy on March 25 last year.

The petitioners say the fire ravaged more than 10,000 acres, damaging plants, animals and the communities living near the ranch.

As a result, wildlife in the 49,000-acre conservancy went into people’s farms and destroyed produce.

The inferno also emitted smoke that contained dangerous chemicals, causing adverse health effects in humans and livestock, the community said.

But all through the court proceedings Batuk claimed sovereign immunity, arguing that the fire arose from a military exercise sanctioned by the governments of the UK and Kenya and thus it could not submit to the jurisdiction of a Kenyan court.

In her March 10 ruling on the suit, Justice Bor referred the matter to the Intergovernmental Liaison Committee, which under the Defence Cooperation Agreement (DCA) is tasked with resolving civil disputes between the community and the UK army.

Not immune to prosecution

In the decision that was anchored on the DCA adopted by the UK and Kenyan governments in 2016, the judge found that the army was not immune to prosecution.

She ruled that Kenyan courts have the jurisdiction to hear and determine criminal and civil matters involving British soldiers on the basis that the UK government waived its state immunity by signing the DCA.

She faulted the community and ACPA for failing to exhaust the dispute resolution mechanisms provided for under the DCA before moving to court. But she found that even so, Kenyan courts had jurisdiction to hear and determine such cases.

She ruled that if the committee failed to resolve the dispute, the petitioners had the discretion to move back to court for the suit to resume.

In the notice of appeal, Batuk lawyer Mr Ondieki has told the land court that the UK military intends to move to the Court of Appeal to challenge the decision.

“We will be grateful if you could provide us with a copy of the typed proceedings in this matter for purposes of appeal,” he says.

Enforce court’s orders

The appeal notice comes as the petitioners through their lawyers, Mr Kubai and Maxwell Gichuhi, have asked the British High Commission and the Attorney-General to enforce the court’s orders.

A March 30 letter addressed to the two offices shows that the court referred the matter to the Intergovernmental Liaison Committee for resolution through the Kenyan and UK ministries in charge of defence.

The letter, which the Nation has seen, seeks to find out whether the Intergovernmental Liaison Committee exists, who its members are and when it is expected to sit.

Mr Kubai and Mr Gichuhi also want to know whether the committee has held any meetings before.

In the letter, they ask whether the community and ACPA will be accorded an opportunity to nominate at least two civilians to serve on the committee so as to ensure a transparent, accountable and fair hearing.

“Does the Committee have its own Rules of Procedure or shall the Civil Procedure Rules of Kenya apply?” the lawyers say in the letter.


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