The Environment and Lands Court has the jurisdiction to handle the case filed by 1,496 members of a community against the British Army Training Unit in Kenya (Batuk).
However, the court sitting in Nanyuki ruled that the residents of Lolldaiga who sued Batuk over a fire that destroyed vegetation on 10,000 acres of land have to exhaust the dispute resolution mechanism before moving to court.
In a landmark ruling delivered today morning, Justice Antonina Borr ordered the residents to refer the matter to the Intergovernmental Liaison Committee after it emerged that they had gone directly to the court.
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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 Cooperation 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 added: "The court agrees that the petitioners need to exhaust the dispute resolution mechanism set out in the Defence Cooperation Agreement."
In this case, the aggrieved residents of Lolldaiga and the African Centre for Corrective and Preventive Action had accused Batuk of starting a fire during a military training exercise which destroyed vegetation on 10,000 acres of land.
Lawyer Kelvin Kubai who appeared in the case for the Lolldoiga residents said they were satisfied with the ruling as the court had proclaimed that Batuk did not enjoy immunity from liability for either civil or criminal offences committed.
According to him, they were vindicated that the pact signed by the two governments provides that the visiting army be 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 been burst," said Kubai.
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 that 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.
Lolldaiga Hills Limited, the Batuk Commanding Officer and Batuk are listed as the first, second and third respondents in the dispute while the Kenya Wildlife Service (KWS) and Kenya Forest Service (KFS) are named as interested parties.
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.
Initially, the ruling on the preliminary objection was first set for November 24 when Justice Borr announced she was not available for the day and would make the ruling the next day.
On November 25, Justice Borr told the litigants that the ruling was not yet ready and put it off to December 14 when she again gave February 10, 2022.
Before the set date Justice Borr informed the court that she was unable to make a ruling after some pages in the submissions to the case went missing.
The ruling was eagerly awaited because it was expected to set precedent on another high profile case involving the death of Nanyuki mother Agnes Wanjiku Wanjiru who was last seen with Batuk soldiers.
Her body was days later discovered dumped in the hotel's septic tank with stab wounds.
An inquest concluded in 2019 asked the government to find and prosecute some of the Batuk soldiers who were at the hotel on the night of her death.