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ELCOtherPetition dated 29/3/2021 (not stated in judgment)· [2022] KEELC 771 (KLR)

The African Centre for Corrective and Preventive Action & 6 others v Lolldaiga Hills Ranch Ltd & 2 others; Kenya Wildlife Service & another (Interested Parties)

Environment and Land Court
10 March 2022
9,035 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the British Army can be sued over the Lolndaiga Hills fire, but residents must first seek compensation through a Kenya-UK joint committee.

What this practically means

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Executive summary

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The African Centre for Corrective and Preventive Action and six residents of Lolldaiga petitioned the Environment and Land Court at Nanyuki, alleging that a fire caused by British Army officers during a training exercise on or about 25 March 2021 ravaged over 10,000 acres of Lolldaiga Hills Ranch, violating their constitutional right to a clean and healthy environment under articles 42, 69 and 70 of the Constitution and EMCA. They sought restoration of the environment and compensation. BATUK and its Commanding Officer applied to strike out the petition (or themselves), contending they were agents of the UK Government which had not consented to the jurisdiction of Kenyan courts and claiming sovereign immunity for official military acts under the Kenya-UK Defence Cooperation Agreement. The 1st respondent supported the application. The petitioners opposed, arguing the ELC lacked jurisdiction over immunity, that the Agreement amounted to a waiver of immunity, and that immunity could not shield environmental degradation. The court framed three issues: its own jurisdiction, sovereign immunity, and exhaustion. It held the ELC had jurisdiction to determine the immunity objection and the petition, since article 11(1) of the Agreement confers jurisdiction on the Host Nation over civil claims arising in its territory and article 8 imposes environmental obligations. It found the parties had waived immunity to the extent stipulated in the Agreement, doubted that starting a destructive fire was a sovereign act, and distinguished diplomatic from state immunity. However, it held the petitioners ought to exhaust the dispute resolution mechanism in the Agreement and stayed the suit pending resolution by the Inter-Governmental Liaison Committee, with detailed directions on hearings, investigation, compensation and environmental restoration. Costs of the application were to abide the Committee's outcome.

Key legal issues

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01

Jurisdiction of the ELC to determine a state immunity objection

Holding

The ELC has jurisdiction to determine the immunity objection and to hear the environmental claims; a party need not first go to the High Court

Reasoning

All parties' authorities confirmed that the court seized of a jurisdictional objection must first determine its own jurisdiction. Transferring the question to the High Court and back would create absurdity and increase backlog and costs. As the petition alleges violations of environmental rights under articles 42, 69 and 70 of the Constitution, the ELC under article 162(2)(b) is properly seized of both the petition and the immunity objection.

p. 15
02

Whether the UK Government enjoys sovereign immunity from these proceedings

Holding

Immunity was waived by the Defence Cooperation Agreement to the extent it confers jurisdiction on Kenya over civil claims and environmental protection obligations; the alleged fire is not shown to be a sovereign act

Reasoning

The court distinguished state from diplomatic immunity, noted the UN Convention on Jurisdictional Immunities was unratified, and analysed the Agreement. Article 11(1) confers jurisdiction on the Host Nation for civil claims arising in its territory, and article 8 imposes environmental obligations. The court doubted that starting a destructive fire was part of military training or a sovereign act, and held acts outside official capacity are excluded from immunity.

p. 16
03

Exhaustion of alternative dispute resolution mechanisms

Holding

The petitioners ought to exhaust the dispute resolution mechanism in the Defence Cooperation Agreement, i.e. the Inter-Governmental Liaison Committee

Reasoning

Article 23(3) anticipated compensation claims by local communities; article 24 empowers the Committee to consider and oversee resolution of civil claims and refer unresolved claims to mediation and arbitration. The Agreement is silent on how third parties present claims, but the court found the Committee process suitable, with safeguards that the petitioners be heard and natural justice observed. Apprehension of bias before the Committee was unfounded.

p. 20
04

Whether article 6(1) of the Defence Cooperation Agreement amounted to submission to jurisdiction

Holding

Article 6 does not apply to the civil claim in the petition; jurisdiction flows instead from article 11

Reasoning

The court agreed with the respondents that article 6(1), which subjects Visiting Forces to the laws of the Host Nation, addresses criminal and disciplinary jurisdiction and does not apply to the civil claim in the petition. The waiver of immunity derives from article 11(1), which allocates civil claims jurisdiction to the Host Nation for activities in its territory, and article 23(3) on compensation to local communities.

p. 18

Legal principles established

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  • It is the court in which an objection to jurisdiction is raised that must first determine its own jurisdiction
  • A state may waive immunity, including by treaty, and Kenya and the UK waived immunity to the extent stipulated in the Defence Cooperation Agreement
  • The Host Nation has jurisdiction over civil claims and liabilities arising from activities in its territory under the Defence Cooperation Agreement
  • Acts not performed on behalf of the State or not constituting official acts are excluded from state immunity
  • State immunity is distinct from diplomatic immunity; the Privileges and Immunities Act governs the latter
  • The ELC has jurisdiction over civil claims under article 11 and environmental claims under article 8 of the Defence Cooperation Agreement, pursuant to article 162(2) of the Constitution

Court orders

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  1. 1.The dispute referred to the Inter-Governmental Liaison Committee for resolution through the Ministries responsible for defence of Kenya and the UK
  2. 2.Relevant authorities of Kenya and the UK to cooperate in investigations and collection of evidence in accordance with article 11 of the Defence Cooperation Agreement
  3. 3.The Inter-Governmental Liaison Committee to meet in Kenya to establish liability, afford the Petitioners a hearing and observe natural justice
  4. 4.The Committee to consider, recommend and oversee resolution, referring unresolved civil claims to mediation and arbitration per article 25
  5. 5.If liability established, UK authorities to pay prompt and adequate compensation per articles 11(3), (4) and 23(3)
  6. 6.If environmental damage by negligent acts of the Visiting Forces established, Kenya and UK authorities to cooperate in restoration of the environment
  7. 7.A copy of the settlement to be filed in court within 14 days of the Committee's determination
  8. 8.The suit stayed until the Inter-Governmental Liaison Committee resolves the matter; costs of the application to abide the outcome

Authorities

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Legislation

  • Constitution of Kenyaarticles 2(6), 23, 42, 69, 70, 162(2)(b)
  • Environmental Management and Co-ordination Actnot specified
  • Environment and Land Court Actsection 13(1), 13(2)(a)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013rules 5(a), (b) and 5(d)(i)
  • Wildlife (Conservation and Management) Actnot specified
  • Privileges and Immunities Actsection 31(1)(a)
  • State Immunity Act 1978 (UK)sections 2 and 9
  • Fire Prevention (Metropolis) Act 1774section 3
  • Vienna Convention on Diplomatic Relationsarticle 31(1)
  • Vienna Convention on the Law of Treaties 1969article 18
  • United Nations Convention on Jurisdictional Immunities of States and Their Propertynot specified
  • Statute of the International Court of Justicearticle 38
  • Defence Cooperation Agreement between the Government of the Republic of Kenya and the Government of the United Kingdomarticles 3, 5, 6, 8, 11, 23, 24, 25

Cases cited (23)

  • I Congreso del Partido
    [1981] 2 All ER 1064
  • Littrel v United States of America (No 2)
    [1994] 4 All ER 203
  • Ministry of Defence of the Government of the United Kingdom v Joel Ndegwa
    [1982-1988] 1 KAR 135
  • Unicom Limited v Ghana High Commission
    [2016] eKLR
  • Uchumi Supermarket Limited v Toigoi Investment Limited
    [2016] eKLR
  • Grays Jepkemoi Kiplagat v Zakayo Chepkonga Cheruiyot
    [2021] eKLR
  • Patrick Mbau Karanja v Kenyatta University
    (2012) eKLR
  • Lillian ‘S’ v Caltex Kenya Limited
    [1989] eKLR
  • Thomas Mutuku Kasue v Housing Finance Company Ltd (HFC) & Another
    [2021] eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
  • Tononoka Steels Limited v Eastern and Southern Africa Trade and Development Bank
    [1999] eKLR
  • General Medical Council v Spackman
    [1943] 2 All ER 337
  • R v Vice Chancellor JKUAT
    Misc Appl No 30 of 2007
  • Belhaj & another v Straw & others (Rev 1)
    [2017] UKSC 3
  • Ishak Mohamed v Libyan Embassy
    [2016] eKLR
  • Elkana Khamisi Samarere & another v Nigerian High Commission
    [2013] eKLR
  • Republic v Chairman Business Premises Rent Control Tribunal & another ex-parte Hekima College
    [2014] eKLR
  • Rahimtoola v Nizam of Hyderbad
    [1958] AC 379
  • Deva Samat Keshwala & 10 others v Tolk Investments (K) Ltd & another
    [1995] eKLR
  • International Centre for Insect Physiology and Ecology (ICIPE) v Nancy Menally
    [2018] eKLR
  • Owners of Motor Vessel Lilian ‘S’ v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    Application No 2 of 2011
Jurisdiction invoked
Article 162(2)(b) of the Constitution and sections 13(1) and 13(2)(a) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "The African Centre for Corrective and Preventive Action & 6 others v Lolldaiga Hills Ranch Ltd & 2 others; Kenya Wildlife Service & another (Interested Parties)", Case Analysis (2022). Petition dated 29/3/2021 (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/771/eng@2022-03-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.