The African Centre for Corrective and Preventive Action & 6 others v Lolldaiga Hills Ranch Ltd & 2 others; Kenya Wildlife Service & another (Interested Parties)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to determine a state immunity objection
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
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.
Whether the UK Government enjoys sovereign immunity from these proceedings
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
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.
Exhaustion of alternative dispute resolution mechanisms
The petitioners ought to exhaust the dispute resolution mechanism in the Defence Cooperation Agreement, i.e. the Inter-Governmental Liaison Committee
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.
Whether article 6(1) of the Defence Cooperation Agreement amounted to submission to jurisdiction
Article 6 does not apply to the civil claim in the petition; jurisdiction flows instead from article 11
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.
Legal principles established
#- 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
#- 1.The dispute referred to the Inter-Governmental Liaison Committee for resolution through the Ministries responsible for defence of Kenya and the UK
- 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.The Inter-Governmental Liaison Committee to meet in Kenya to establish liability, afford the Petitioners a hearing and observe natural justice
- 4.The Committee to consider, recommend and oversee resolution, referring unresolved civil claims to mediation and arbitration per article 25
- 5.If liability established, UK authorities to pay prompt and adequate compensation per articles 11(3), (4) and 23(3)
- 6.If environmental damage by negligent acts of the Visiting Forces established, Kenya and UK authorities to cooperate in restoration of the environment
- 7.A copy of the settlement to be filed in court within 14 days of the Committee's determination
- 8.The suit stayed until the Inter-Governmental Liaison Committee resolves the matter; costs of the application to abide the outcome
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Export Processing Zone Authority & 10 others v National Environment Management Authority & 3 others[2024] KESC 75 (KLR)6 Dec 2024
Cite this brief
#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.