African Centre for Corrective and Preventive Action & 6 others v Lolldaiga Hills Limited & 2 others; Kenya Wildlife Service & another (Interested Parties) [2022] eKLR

Key Facts

Issues

• The court's authority to first decide whether it can handle the objection to jurisdiction based on the UK Government's claim of sovereign immunity under the Defence Cooperation Agreement and Kenyan constitutional provisions.
• Assessing if the Petitioners should first utilize the Inter-Governmental Liaison Committee and other dispute resolution processes outlined in the Defence Cooperation Agreement before seeking judicial remedies in Kenyan courts.
• Determining if the UK Government's participation in the Defence Cooperation Agreement constitutes a waiver of its sovereign immunity from Kenyan court jurisdiction regarding the alleged environmental damage caused by British military training exercises.

Holdings

• The court ordered that the Petitioners must exhaust the dispute resolution mechanisms outlined in the Defence Cooperation Agreement, including referral to the Inter-Governmental Liaison Committee. This includes investigations, mediation, and arbitration, with potential compensation and environmental restoration if the UK is found liable.
• The court determined that the Environment and Land Court (ELC) has jurisdiction to rule on the application regarding state immunity, as the issue arises from a civil claim under the Defence Cooperation Agreement. The court emphasized that the ELC, as a specialized court under Article 162(2)(b) of the Constitution, is competent to handle environmental rights violations and claims under the Agreement.
• The court held that the UK Government did not consent to the jurisdiction of Kenyan courts for the alleged fire incident, which the Petitioners claim was caused by British Army officers during a training exercise. However, the court acknowledged that Kenya retains jurisdiction over civil claims and liabilities under the Agreement, requiring cooperation between the parties for investigations and compensation.

Remedies

• The Inter-Governmental Liaison Committee will meet in Kenya, allowing petitioners to present their case and ensuring natural justice is observed.
• The relevant authorities of Kenya and the UK shall cooperate in the carrying out of all necessary investigations into the claims and collection of evidence under Article 11 of the Defence Cooperation Agreement.
• Kenya and the UK will cooperate in restoring the environment if the fire was caused by UK negligence as per the Defence Cooperation Agreement.
• If the UK's forces are found liable, they will compensate the petitioners under Articles 11 and 23 of the Defence Cooperation Agreement.
• The court stays the suit until the Inter-Governmental Liaison Committee resolves the issue, with costs to follow the outcome of the Committee's determination.
• The dispute will be referred to the Inter-Governmental Liaison Committee for resolution through the Ministries of Kenya and the UK responsible for defense.
• A copy of the dispute settlement will be filed in court within 14 days of the Committee's decision.
• The Committee will recommend resolution via mediation and arbitration for unresolved civil claims as per Article 25 of the Defence Cooperation Agreement.

Legal Principles

• The court mandated that the Inter-Governmental Liaison Committee (under the Defence Cooperation Agreement) must observe principles of natural justice when adjudicating the Petitioners' claims. This included ensuring a fair hearing for the community and adhering to procedural fairness in resolving disputes related to environmental harm and compensation.
• The court analyzed the doctrine of sovereign immunity under customary international law, determining that the UK Government's participation in the Defence Cooperation Agreement with Kenya created a limited waiver of immunity for civil claims related to environmental damage caused by its military training. The ruling emphasized that while sovereign immunity generally protects a state from foreign jurisdiction in sovereign acts, the Agreement's provisions on civil claims and environmental protection established Kenya's jurisdiction in this case.

Precedent Name

• International Centre for Insect Physiology and Ecology (ICIPE) v Nancy Menally
• Elkana Khamisi Samarere & Another v Nigerian High Commission
• Unicom Limited v Ghana High Commission
• Littrel v United States of America
• Ministry of Defence of the Government of the United Kingdom v Joel Ndegwa
• 1 Congreso del Partido
• Halsbury's Laws of England
• Ishak Mohamed v Libyan Embassy
• Republic v Chairman Business Premises Rent Control Tribunal & another ex-parte Hekima College
• Deva Samat Keshwala & 10 others v Tolk Investments (K) Ltd & another
• Belhaj & Another v Straw & Others

Cited Statute

• Fire Prevention (Metropolis) Act 1774
• Environment and Land Court Act No. 19 of 2011
• Privileges and Immunities Act of Kenya
• Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Judge Name

Passage Text

• The court emphasized that Kenya has jurisdiction for civil claims and liabilities arising from activities in its territory under the Defence Cooperation Agreement, including environmental restoration obligations.
• The court ruled that this dispute will be referred to the Inter-Governmental Liaison Committee for resolution through the Ministries of the Government of Kenya and the Government of the UK responsible for defence.
• The court ordered that if the Inter-Governmental Liaison Committee establishes liability for the fire, the UK must pay prompt and adequate compensation and cooperate in environmental restoration.