[2022] KEELC 771 (KLR)

[2022] KEELC 771 (KLR)

The Environment and Land Court has jurisdiction to determine preliminary objections based on state/sovereign immunity when raised in environmental petitions. The Defence Cooperation Agreement between Kenya and the UK provides that Kenya has jurisdiction over civil claims arising from activities in its territory, including environmental harm allegedly caused by BATUK. However, the Agreement establishes a mandatory dispute resolution mechanism through the Inter-Governmental Liaison Committee, which must be exhausted before the court can entertain the petition. The court found that both the UK and Kenyan governments waived immunity to the extent stipulated in the Agreement, but the...

Citation
[2022] KEELC 771 (KLR)
Parties
Applicant: African Centre for Corrective and Preventive Action; Respondent: Lolldaiga Hills Limited; Respondent: British Army Training Unit in Kenya (BATUK); Respondent: Commanding Officer, BATUK; Interested Party: Kenya Wildlife Service; Interested Party: Kenya Forest Service; Applicant: 2nd to 7th Petitioners (Residents of Lolldaiga)
Court
Environment and Land Court
Court Station
Environment and Land Court at Nanyuki
Jurisdiction
Kenya
Judgment Date
10 March 2022
Case Number
Environment & Land Petition 2 of 2021
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection and Stay Application
Outcome
Petition stayed; dispute referred to Inter-Governmental Liaison Committee under the Defence Cooperation Agreement.
Judges
AK Bor
Legal Topics
State Immunity, Environmental Damage, Doctrine of Exhaustion, International Agreements, Jurisdiction of Courts, Compensation for Environmental Harm
Source Language
English
Environmental Law Public International Law Civil Procedure State Immunity Environmental Damage Doctrine of Exhaustion International Agreements Jurisdiction of Courts +1 more

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Parties

African Centre for Corrective and Preventive Action

Applicant

Lolldaiga Hills Limited

Respondent

British Army Training Unit in Kenya (BATUK)

Respondent

Commanding Officer, BATUK

Respondent

Kenya Wildlife Service

Interested Party

Kenya Forest Service

Interested Party

2nd to 7th Petitioners (Residents of Lolldaiga)

Applicant

Procedural Posture

Constitutional Petition / Ruling on Preliminary Objection and Stay Application

Legal Issues

  1. 1 Whether the Environment and Land Court has jurisdiction to determine issues on state/sovereign immunity raised in a petition alleging violation of the right to a clean and healthy environment.
  2. 2 Whether the British Army Training Unit in Kenya (BATUK), its members, employees or agents are liable for the fire on Lolldaiga Hills and protected from civil claims via state/sovereign immunity.
  3. 3 Whether the petitioners must exhaust the dispute resolution mechanisms in the Defence Cooperation Agreement before approaching the court.

Ratio Decidendi

The Environment and Land Court has jurisdiction to determine preliminary objections based on state/sovereign immunity when raised in environmental petitions. The Defence Cooperation Agreement between Kenya and the UK provides that Kenya has jurisdiction over civil claims arising from activities in its territory, including environmental harm allegedly caused by BATUK. However, the Agreement establishes a mandatory dispute resolution mechanism through the Inter-Governmental Liaison Committee, which must be exhausted before the court can entertain the petition. The court found that both the UK and Kenyan governments waived immunity to the extent stipulated in the Agreement, but the...

Court Disposition

Petition stayed; dispute referred to Inter-Governmental Liaison Committee under the Defence Cooperation Agreement.

Orders

  • The dispute is referred to the Inter-Governmental Liaison Committee for resolution through the Ministries of Defence of Kenya and the UK.
  • The relevant authorities of Kenya and the UK shall cooperate in investigating the claims and collecting evidence as per article 11 of the Defence Cooperation Agreement.