The British Army Training Unit in Kenya (Batuk) wants the Intergovernmental Liaison Committee to take over a dispute in which it is accused of starting a fire during a military training exercise on March 26 in Lolldaiga conservancy.
During a virtual court session on Tuesday before the Environment and Lands Court in Nanyuki, Batuk, through its lawyer Lawrence Ondieki, requested Justice Antonina Kossy Bor to strike out the petition and allow the parties to solve the issue out of court through the Inter-Governmental Liaison Committee as per the Defence Co-operation Agreement (DCA).
In the suit, the African Centre for Corrective and Preventive Action, a non-governmental organisation, together with 1,496 residents from Lolldaiga community, accuse Batuk of starting a fire which destroyed over 10,000 acres of land in and out of the ranch in Laikipia.
In the suit, the Lolldaiga Hills Limited, the army commanding officer of Batuk in Nanyuki and Batuk are listed as the first, second and third respondents.
The Kenya Wildlife Service (KWS) and Kenya Forest Service (KFS) are enjoined as interested parties.
According to lawyer Ondieki, in the DCA, the committee is tasked with resolving such civil claims arising from the military exercises by determining if and how much to compensate victims after trial.
In the suit, Batuk also claims sovereign immunity citing that the fire arose from a military exercise sanctioned by the governments of the United Kingdom and Kenya, thus it cannot submit to the jurisdiction of a Kenyan court.
According to Mr Ondieki, the DCA only allows local courts to determine criminal offences involving British military officers but not civil suits.
Whereas civil suits can be heard and solved by the committee, criminal offences involving military officers can be heard by local courts of the host nations according to the DCA.
In the suit, BATUK claims sovereign immunity citing that the fire arose from a military exercise sanctioned by the governments of the United Kingdom and Kenya, thus it cannot submit to the jurisdiction of a Kenyan court.
Lawyer Ondieki further adds that the UK government cannot submit to a local court because the suit arises from civil claims and there are laid-down procedures in the DCA of how to deal with such matters.
According to Lawyer Ondieki, the DCA only allows local courts to determine criminal offences involving British military officers but not civil suits.
“Local courts can only hear and determine criminal suits involving military officers after arrests have been made,” Mr Ondieki said.
He asked the suing NGO to file the complaints to the Inter-Governmental Liaison Committee first.
He said that the petitioners were aware that the Agreement presents alternative mechanisms of dispute resolution instead of court.
“But none of the petitioners have made an effort to approach the committee despite acknowledging its existence in the petition,” said lawyer Ondieki.
During the hearing, Lawyer Gibran Darr who is representing the Lolldaiga Hills Limited told Justice Bor that if Batuk is removed from the suit, the case would be unsustainable.
This is because the conservancy will remain as the only respondent in the matter.
“Furthermore, the petition arose from the actions of the military officers and Lolldaiga conservancy is only listed in the case because it provided a ground for the training exercises,” he said.
In the absence of Batuk, lawyer Darr said that the court will not be able to obtain facts and investigations of the circumstances for a fair determination of the suit.
Lolldaiga community lawyer Kelvin Kubai told the court to dismiss the application by BATUK seeking to be struck out because the sovereign immunity it claims is not absolute even in civil cases.
Lawyer Kubai maintained that the respondents don’t enjoy immunity from liability for offences committed.
According to him, the Agreement provides that the visiting army be subjected and obliged to respect the constitution of the host nation.
“The property of the visiting forces shall be administered according to the laws of the receiving state. We submit that the respondents do not enjoy the absolute immunity from liability for all the offences they commit,” he said.
The case continues on November 24 when the court will make its ruling.