Kenya Law Weekly Issue 022/23-24

The limitation of human rights after imposition of a curfew in response to a terrorist attack were justifiable.

Headnote: The appeal challenged the institution of a curfew on Wajir, Garissa, Mandera and Tana River Counties following a terrorist attack on Garissa University that left over 100 persons dead. The appellant faulted the findings of the Court of Appeal’s that the provisions of sections 8 and 9 of the Public Order Act were constitutional. The Supreme Court held that the very nature of curfew orders was to limit movement of people so as to maintain security, law, and order. The operating hours of the curfew were between 6.30 pm and 6.00 am. Those hours were reasonable and it was justifiable for this right to be limited for the duration of the curfew. The need to preserve the right to life, after over a hundred lives were lost in the terrorist attack, outweighed the limitation on the restriction of business trading hours. The appeal was dismissed.

Haki Na Sheria Initiative v Inspector of Police & 2 others; Kenya National Human Rights & Equality Commission (Interested Party) (Petition 5 (E007) of 2021) [2023] KESC 51 (KLR) (23 June 2023) (Judgment)
Neutral Citation: [2023] KESC 51 (KLR)
Supreme Court of Kenya
MK Ibrahim, SC Wanjala, SN Ndungu, I Lenaola, and W Ouko
June 23, 2023
Reported by John Ribia
Download the Decision

Statutes – constitutionality of statutes – constitutionality of sections 8 and 9 of the Public Order Act - Whether sections 8 and 9 of the Public Order Act were unconstitutional as they gave sweeping powers to the Cabinet Secretary and the Police without checks and balances or parliamentary and judicial oversight contrary to the provisions of article 58 and 95 of Constitution.
Public Order – curfews – curfews vis-à-vis a state of emergency – procedure – oversight by parliament - whether curfew orders that affected a particular region were to be subjected to oversight by parliament the same way a declaration of a state of emergency that affected the entire State would be subject to parliamentary oversight - Constitution of Kenya, 2010 article 58; Public Order Act sections 8 and 9.
Constitutional Law – fundamental rights and freedoms – right to life – right to human dignity – right to equality and freedom from discrimination – freedom and security of the person - - where a dusk to dawn curfew was put in place in response to a terrorist attack on a town - whether the imposition of a dusk to dawn curfew in response to a terrorist attack violated the rights to life, human dignity, equality, freedom from discrimination and freedom and security of the person - Constitution of Kenya, 2010 articles 26, 27, 29, and 39
Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms - reasonable and justifiable test – where a dusk to dawn curfew was put in place in response to a terrorist attack on a town - what principles do courts consider in determining whether limitation of fundamental rights and freedoms was reasonable and justifiable - whether in imposing a dusk to dawn curfew occasioned by a terrorist attack, the need to preserve the right to life outweighed the limitation on the restriction of business trading hours – Constitution of Kenya, 2010 articles 24 and 26; Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights; International Covenant on Civil and Political Rights article 4
Words and Phrases – curfew – definition - a regulation that forbids people from being outdoors or in vehicles during certain hours -Black’s Law Dictionary

Brief Facts:
The appeal challenged the institution of a curfew on Wajir, Garissa, Mandera and Tana River Counties following a terrorist attack on Garissa University that left over 100 persons dead. The appellant faulted the findings of the Court of Appeal’s that the provisions of sections 8 and 9 of the Public Order Act were constitutional. The appellant contended that the provisions of section 8 and 9 of the Public Order Act were unconstitutional as they gave sweeping powers to the Cabinet Secretary and the Police without checks and balances or parliamentary and judicial oversight contrary to the provisions of article 58 and 95 of Constitution. The provisions allegedly did not provide timelines on duration of curfews and further that the provisions infringe on an array of human rights. The appellant also contended that the provisions were archaic and contrasted the provisions to the colonial statutes on issuance of passes which were written permits granted by an authority under inter alia the Native Passes Regulations 1900.
The respondent highlighted that the curfew was as a result of a terrorist attack in Garissa University. It was the respondents' case that the impugned provisions were not unconstitutional as they met the objective of the Public Order Act which was to attain the legitimate purpose of ensuring safety, peace, and order at the attainment of national security in a given area of the country. Further that sections 8 and 9 of the Public Order Act presupposed a state of security, peace, and stability that was free from criminal activities and violence.

Issues:

Whether sections 8 and 9 of the Public Order Act were unconstitutional as they gave sweeping powers to the Cabinet Secretary and the Police without checks and balances or parliamentary and judicial oversight contrary to the provisions of article 58 and 95 of Constitution.
Whether curfew orders that affected a particular region were to be subjected to oversight by parliament the same way a declaration of a state of emergency that affected the entire State would be subject to parliamentary oversight.
Whether the imposition of a dusk to dawn curfew in response to a terrorist attack violated the rights to life, human dignity, equality, freedom from discrimination and freedom and security of the person.
Whether in imposing a dusk to dawn curfew occasioned by a terrorist attack, the need to preserve the right to life outweighed the limitation on the restriction of business trading hours.
What principles do courts consider in determining whether limitation of fundamental rights and freedoms was reasonable and justifiable?

Held:

The appeal met the jurisdictional requirements and was properly before the Supreme Court. The party that alleged inconsistency had the burden of proving such a contention. In construing whether statutory provisions offended Constitution, courts must subject the same to an objective inquiry as to whether they conform with Constitution. The true essence of a statutory provision as well as its effect and purpose must be considered.
The long title of the Public Order Act provided that the objective of the Statute was to make provision for the maintenance of public order and for purposes connected therewith. With reference to curfew orders, the Cabinet Secretary responsible for Internal Security was mandated to issue the order which was premised on advice of the Inspector General of Police. The order was issued in the interests of maintaining public order.
The curfew orders in dispute were issued following a heinous terrorist attack in Garissa and it was necessary in the circumstances to forestall any other attacks as well as maintain public order while investigations relating to the attack were conducted whilst maintaining law and order in the affected county as well as the neighboring counties. The 2^nd respondent legitimately issued the curfew order which was also a precautionary measure to avert any further potential risk upon the lives of the residents in the 4 counties.
There was need to maintain national security considering that the nature of terrorism translated across the victim country’s borders. Article 238 of Constitution provided that the principles of national security were that it was subject to the authority of Constitution and Parliament, it shall be pursued in compliance with the law and utmost respect for the rule of law, democracy and human rights and fundamental freedoms and that national security organs shall respect the diverse culture of the communities within Kenya.
Sections 8 and 9 of the Public Order Act provided for the duration of hours to remain indoors and which applied to every member of any class except with a written permit. Additionally, curfew restriction orders were issued by the police in charge of a county or division restricting persons from entering, being or remaining in any premises.
Although the statutory provisions did not state the hours for the curfew operation, the proviso in section 8(3) catered to the limitation of hours to a curfew as it prohibited the operation of a curfew order for more than ten (10) hours consecutive hours of daylight for three (3) consecutive days or for less consecutive hours for more than seven (7) days. Further, a curfew restriction order should not exceed twenty-eight (28) days. The law provided for the operation hours of a curfew which was not excessive but rational to meet the objective of the issuance of the orders.
On publication of the orders, sections 8 and 9 of the Public Order Act provided that the authority making the order shall in a manner it may think sufficient notify all persons of the day the curfew shall come into force and its duration. Although the proviso did not state how the publication should be issued, the 2^nd respondent had the onus to ensure that the publication was widespread and that all affected persons were informed on the issuance of the curfew.
Article 58 of Constitution provided that a state of emergency was declared in the limited circumstances where the State was threatened by war, invasion, general insurrection, disorder, natural disaster, or other public emergency. The declaration was for an initial period of 14 days and any subsequent extension was subject to the approval by National Assembly and its validity or legislation enacted pursuant to the declaration can be challenged in the Supreme Court. The Constitution anticipated that a declaration of a state of emergency was likely to limit the enjoyment of rights and freedoms and provided that the limitation should strictly be required by the emergency and be consistent with the Republic’s obligation under international law applicable to a state of emergency.
In contrast to the legislative provisions on curfew orders and curfew restriction orders, it was apparent that a declaration of a state of emergency affected the entire State. Consequently, the declaration must be subjected to oversight by Parliament and any legal challenge arising thereof be resolved by the courts and in the instant case the jurisdiction was limited to the Supreme Court. On the other hand, curfew orders and curfew restriction orders were limited to a particular area and therefore would not require Parliamentary approval. However, any legal challenge arising from the declaration of a curfew can be adjudicated upon in the courts. The duration of a curfew restriction order shall not exceed a period of twenty-eight (28) days which was a reasonable period upon recommendation by the authority making it. The provisions of sections 8 and 9 of the Public Order Act attained constitutional threshold as well as meet the intent and purpose of the Act .
Some human rights treaties include special provisions allowing for derogations from particular rights in times of war or other emergencies threatening the life of the nation. The provisions generally require states to officially notify the respective treaty regime and indicate the reasons for their derogation as well as the duration. The derogation clauses were included because, during exceptional times, it could be crucial to curtail rights in order to preserve their long-term existence. Human rights came under threat in situations where there was no public order. The measures must be of an exceptional and temporary nature and only in a situation that amounts to a public emergency threatening the life of a nation.
It was imperative to note that the curfew orders and restriction orders were issued as a result of an unfortunate terrorist attack. Terrorism was classified as an international threat and its suppression involved a combined multi-national and multi-agency approach. Internationally, Kenya was core in the fight against terrorism having been a victim of the heinous attacks.
The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles) provided for the limitation and derogation principles in the International Covenant on Civil and Political Rights (ICCPR). The principles defined which public emergencies fell under article 4 of the ICCPR and provided for example, that public health may be invoked to trigger emergency provisions for the purpose of allowing a State to take measures dealing with a serious threat to the health of the population or individual members of the population. Those measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured. The Siracusa Principles speciﬁcally stated that restrictions should, at a minimum, be:
1. of limited duration, respectful of human dignity, and subject to review.
2. based on scientiﬁc evidence and neither arbitrary nor discriminatory in application; and,
3. the least intrusive and restrictive available to reach the objective,
4. strictly necessary in a democratic society to achieve the objective,
5. directed toward a legitimate objective of general interest,
6. provided for and carried out in accordance with the law,
In relation to the ICCPR, the Siracusa Principles specified that limitation clauses based on the covenant provisions could only be invoked if they were necessary, based on one of the grounds justifying limitations recognized by the covenant, responding to a pressing social need, pursuing a legitimate aim, are necessary in a democratic society, and proportional to the nature of the threat.
During the Covid 19 pandemic the Human Rights Committee in its statement on derogations from the covenant in connection with the Covid-19 pandemic, specified that the pandemic had put an onus on member states to take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction, and that such measures may result in restrictions on the enjoyment of individual rights guaranteed by the covenant
The very nature of curfew orders was to limit movement of people so as to maintain security, law, and order. The operating hours of the curfew were between 6.30 pm and 6.00 am. Those hours were reasonable and it was justifiable for this right to be limited for the duration of the curfew. The need to preserve the right to life, after over a hundred lives were lost in the terrorist attack, outweighed the limitation on the restriction of business trading hours. In any event, during the curfew period, the residents were notified of the curfew and were therefore obliged to adjust their business trading hours.
Segregation and infringement of the freedom of religion, the appellant urged that sections 8 and 9 of the Public Order Act spoke to the issuance of curfew orders against a class of persons. A reading of the provision shows that the curfew orders applied to every member of any class of persons specified in the curfew order and that the exception was only granted to persons who had a written permit from the authority. The curfew order applied to all the residents of the four counties and did not segregate any class of persons as alleged. It was unfortunate that the curfew run during the month of Ramadhan thereby restricting the Muslims from attending night prayers. However, the limitation of the freedom of religion was justifiable in the circumstances. The limitations were justifiable and reasonable in the circumstances and that there was no violation of the enjoyment of human rights as alleged by the appellant.

Appeal dismissed, each party was to bear its own costs, the security for costs was to be refunded to the appellants.

Kenya Law Case Updates Issue 022/23-24
Case Summaries


CIVIL PRACTICE AND PROCEDURE	Applications to be joined as amicus curiae before the Supreme Court have to satisfy the conditions set under rule 19 of the Supreme Court Rules. Headnote: In an application to be joined as amicus curiae in an appeal before the Supreme Court, the court held that applicants had to meet the requirements under rule 19 of the Supreme Court Rules. The application was dismissed with costs. Stanbic Bank Kenya Limited v Santowels Limited (Petition (Application) E005 of 2023) [2023] KESC 82 (KLR) (22 September 2023) (Ruling) Supreme Court of Kenya MK Koome, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala and SN Ndungu, SCJJ September 22, 2023 Reported by John Ribia Download the Decision *Civil Practice and Procedure* – appeals – appeals to the Supreme Court – where the Court of Appeal had certified a matter for appeal to the Supreme Court for raising matters of general public importance – where the aggrieved party did not seek a review of the decision to certify the matter for appeal to the Supreme Court – whether an applicant that had not sought to review the decision by the Court of Appeal to certify an appeal to the Supreme Court as one raising issues of public importance could contest the certification during the hearing of the substantive appeal at the Supreme Court – Constitution of Kenya, 2010 article 163(4)(b) *Civil Practice and Procedure* – joinder application – application to be joined as amicus – considerations - what factors guided the Supreme Court in deterring an application to be joined as amicus curiae - Supreme Court Rules, rule 19 *Civil Practice and Procedure* – leave application – leave to file pleadings out of time – inordinate delay - whether a delay in filing pleadings on grounds that an applicant was waiting for the court to determine the pending applications was unreasonable. Brief facts: The appeal arose from issues revolve around the interpretation of whether the rate of interest applied by a financial institution and the variation/increase thereof was subject to the approval of the Cabinet Secretary in charge of finance or within the parties’ freedom to contract. The Court of Appeal certified the matter as one raising issues of general public importance and the matter found its way to the Supreme Court. In the instant application, the Attorney General sought leave to be joined as amicus curiae. The applicant also sought for the Cabinet Secretary for Finance and National Treasury to be joined as an amicus curiae. Issue: Whether an applicant that had not sought to review the decision by the Court of Appeal to certify an appeal to the Supreme Court as one raising issues of public importance could contest the certification during the hearing of the substantive appeal at the Supreme Court Whether a delay in filing pleadings on grounds that an applicant was waiting for the court to determine the pending applications was unreasonable. .What factors guided the Supreme Court in deterring an application to be joined as amicus curiae? Read More.. Held: While the applicant sought the admission of the Cabinet Secretary for Finance and National Treasury, it probably meant the Cabinet Secretary, National Treasury and Economic Planning (the Cabinet Secretary). Throughout its application and supporting affidavit thereto, the applicant referred to the Cabinet Secretary and the Attorney General interchangeably. The role of an amicus curiae in any proceedings was to aid the court to arrive at a determination based on the law. Rule 19 of the Supreme Court Rules was the operative provision that guided the court in considering the admission of an amicus curiae. The respondent did not seek a review of the order of the Court of Appeal that certified that the appeal raised issues of general public importance. The respondent could not be heard to claim that the appeal did not raise any issue of general public importance. Rule 19(1) of the Supreme Court Rules provided that any party can request the court to admit a person as amicus curiae. The Supreme Court could consider suggestions from parties to any proceedings, to have a particular person, State Organ or organization admitted in any proceedings as amicus curiae. It was not clear who between the Cabinet Secretary and the Attorney General the applicant sought to be admitted as amicus curiae. They were referred to interchangeably. The applicant had not demonstrated that the intended amicus curiae would be addressing point(s) of law which had not been addressed by the parties to the suit. That he would introduce novel aspects of the legal issues in question that will aid in the development of the law. Neither the Attorney General nor the Cabinet Secretary was keen in participating in the instant matter. The applicant deposed that it served the Attorney General with its appeal on March 6, 2023. Despite being served with the motion; the intended amicus curiae had not filed any response or brief setting out their position. No prejudice would be occasioned to the Cabinet Secretary or the Attorney General if they were not admitted as amicus curiae. The explanation that the applicant could not file the motion because of another pending application for joinder of Kenya Bankers Association as an interested party, which was determined on June 16, 2023 held no weight. Nothing stopped the applicant from filing its motion as an application for joinder of an interested party had no bearing on admission of an amicus curiae. In many instances, the Supreme Court had determined such applications simultaneously. The instant motion was lodged after unreasonable delay. It did not meet the criteria set under rule 19 of the Supreme Court Rules and lacked merit. Application dismissed; applicant was to bear the costs of the respondent in the motion.
JURISDICTION	Difference between state/sovereign immunity and diplomatic immunity. Headnote: The petitioners contended that in a training exercise, the British Army Training Unit in Kenya (BATUK) caused a fire that damaged the flora and fauna of over 10,000 acres in the Lolldaiga Hills. They contended that BATUK violated their right to a clean and healthy environment and sought compensation and restoration of the damaged land. The respondents contended that BATUK had sovereign immunity and thus were immune from civil proceedings before Kenyan Courts. The respondents also contended that the petition was not ripe for determination considering that other dispute resolution mechanisms existed in the Defence Cooperation Agreement between the Governments of the United Kingdom and Kenya. The court held that the petitioners ought to exhaust the dispute resolution mechanism provided in the Defense Cooperation Agreement between the governments of Kenya and the United Kingdom. The petition was stayed pending the determination of the Inter-Governmental Liaison Committee. African Centre for Corrective and Preventive Action & 6 others v Lolldaiga Hills Limited & 2 others; Kenya Wildlife Service & another (Interested Parties) (Environment & Land Petition 2 of 2021) [2022] KEELC 771 (KLR) (10 March 2022) (Ruling) Environment and Land Court at Nanyuki K. Bor, J March 10, 2022 Reported by John Ribia Download the Decision *Jurisdiction* – jurisdiction of the Environmental and Land Court – jurisdiction to determine a petition on the right to a clean and healthy environment that also involved a determination of state/sovereign immunity - Whether the Environment and Land Court had the jurisdiction to determine issues on state/sovereign immunity that were raised in a petition contending the violation of the right to a clean and healthy environment – Constitution of Kenya, 2010 article 70 *International Law* – immunity – diplomatic immunity vis-à-vis state/sovereign immunity - What was the difference between state immunity and diplomatic immunity *International Law* – immunity – state/sovereign immunity – immunity of visiting armed forced training in Kenya – immunity of the British Army Training Unit in Kenya (BATUK) – claim that BATUK caused a fire in a ranch that damaged over 10,000 acres - Whether of the British Army Training Unit in Kenya was protected from the civil claims via state/sovereign immunity - whether the of the British Army Training Unit in Kenya, their members, employees or agents were liable for the fire on the training grounds on Lolldaiga Hills that more than ravaged 10,000 acres of land *Civil Practice and Procedure* – doctrine of exhaustion of remedies – claim that a constitutional petition was unripe for having not exhausted the available remedies – remedies available in the Defence Cooperation Agreement between the Governments of the United Kingdom and Kenya - whether the petition was not ripe for determination considering that other dispute resolution mechanisms existed in the Defence Cooperation Agreement between the Governments of the United Kingdom and Kenya. *Words and Phrases* – immunity – definition - any exemption from a duty, liability or service of process especially such an exemption granted to a public official or governmental unit - Black’s Law Dictionary, 10th edition *Words and Phrases* – sovereign immunity a government’s immunity from being sued in its own courts without its consent or a state’s immunity from being sued in federal court by the state’s citizens; which is also termed as government immunity - Black’s Law Dictionary, 10th edition *Words and Phrases* – to waive – definition - to abandon, renounce or surrender a claim, privilege or right; or to give up a right or claim voluntarily. It goes further to add that ordinarily to waive a right one must do it knowingly; to refrain from insisting on a strict rule or formality or to forgo – the Dictionary Brief facts: The petitioners contended that in a training exercise, the British Army Training Unit in Kenya (BATUK) caused a fire that damaged the flora and fauna of over 10,000 acres in the Lolldaiga Hills. The contended that BATUK violated their right to a clean and healthy environment and sought compensation and restoration of the damaged land. The respondents contended that BATUK had sovereign immunity and thus were immune from civil proceedings before Kenyan Courts. The respondents also contended that the petition was not ripe for determination considering that other dispute resolution mechanisms existed in the Defence Cooperation Agreement between the Governments of the United Kingdom and Kenya Issues: Whether the Environment and Land Court had the jurisdiction to determine issues on state/sovereign immunity that were raised in a petition contending the violation of the right to a clean and healthy environment. Whether the of the British Army Training Unit in Kenya, their members, employees or agents were liable for the fire on the training grounds on Lolldaiga Hills that more than ravaged 10,000 acres of land. What was the difference between state immunity and diplomatic immunity? Whether of the British Army Training Unit in Kenya was protected from the civil claims via state/sovereign immunity Whether the petition was not ripe for determination considering that other dispute resolution mechanisms existed in the Defence Cooperation Agreement between the Governments of the United Kingdom and Kenya. Whether courts would consider evidence that was raised via submissions that did not accord an opposing party the chance to respond.Read More.. Held: It was the court in which the objection to jurisdiction was raised which must first determine whether it had the requisite jurisdiction to handle the dispute. If the court found that it did not, then that court was required to down its tools or in some instances transfer the matter to the court vested with jurisdiction to handle the matter. The practice where cases were first transferred to a second court purely for purposes of that court determining whether the first court had jurisdiction to deal with an aspect of the case and then had the case returned to the first court would certainly create an absurdity besides increasing the case backlog and the costs of litigation. The Environmental and Land Court had jurisdiction to determine the objection by the United Kingdom (UK) Government to be impleaded in these proceedings based on the doctrine of state immunity. As a unit of the British Army Training Unit in Kenya (BATUK) had no legal entity separate from the UK Government. However, it was part of the Armed Forces for whose benefit and training the UK Government and the Kenyan Government entered into and implemented the defence cooperation agreement. The court could only take at face value the petitioners’ allegations of damage to the environment and losses suffered by the community as a result of a fire incident which they claimed was started by the British Army Officers in the military training grounds in Lolldaiga. Findings of fact would have to be made at a later date on whether indeed there was a fire in Lolldaiga Hills as the petitioners claimed, whether it was caused by British Army Officers, how far the fire spread and the actual damage it caused to the environment and to the Lolldaiga community. Immunity meant any exemption from a duty, liability or service of process especially such an exemption granted to a public official or governmental unit. Sovereign immunity meant a government’s immunity from being sued in its own courts without its consent or a state’s immunity from being sued in federal court by the state’s citizens; which is also termed as government immunity. To waive meant to abandon, renounce or surrender a claim, privilege or right; or to give up a right or claim voluntarily. To waive a right one must do it knowingly. To waive was to refrain from insisting on a strict rule or formality or to forgo. Sovereign or state immunity was a principle of customary international law by virtue of which a sovereign state could not be sued before the courts of another sovereign state without its consent. State immunity protected a state and its property from the jurisdiction of the courts of another state based on the concept of equality of states. Jurisdictions had adopted either the absolute or restrictive approaches to state immunity. The absolute approach entailed a foreign state enjoying total immunity from being sued or having its assets seized by a foreign court even in commercial matters. In the restrictive approach, a foreign state was only immune in relation to activities involving an exercise of sovereign power which meant a state can be sued and may have its assets seized in a foreign court in commercial or private matters. Immunity was based on the principle of non-intervention in the internal affairs of other states. The rationale for jurisdictional immunity rested on the dignity of the foreign nation, its organs and representatives, and on the functional need to leave them unencumbered in the pursuit of their mission. States could waive immunity. Waiver of immunity may occur in a treaty, in a diplomatic communication, or by actual submission to the proceedings in the local court. While courts should grant immunity when asked to do so where the dispute brought into question the legislative or international transactions of a foreign government or the policy of its executive; the instant court was not persuaded that starting a massive destructive fire, which the petitioners alleged the British Army Officers did while in the Lolldaiga military training grounds, would form part of military training or that it would form a sovereign act. If the Petitioners were to prove that the 3rd respondent acted outside the scope of sovereign immunity when they caused the fire, then the actions of the culpable officers would be individual and not sovereign acts of the UK Government. For the functional immunity to apply, the officer must have been acting in an official capacity on behalf of the State. The court doubted that the defence would be available to an officer who exceeded the scope of his authority. Any act that was not performed on behalf of the State or one which did not constitute an official act is excluded from State immunity. There was a distinction between state immunity and diplomatic immunity. Diplomatic immunity was a practical necessity that allowed the proper functioning of diplomatic missions while state immunity was grounded in the inherent equality of states. Since Kenya had not ratified the United Nations Convention on Jurisdictional Immunities of States and their Property, nothing turned on that point. The Defence Cooperation Agreement between the Government of the Republic of Kenya and the Government of the United Kingdom of Great Britain (UK) and Northern Ireland (the agreement) agreement made provisions on the nature and extent of the cooperation including its aim, scope, implementation, environmental protection, jurisdiction, provision of training areas, civil claims and liabilities, investigation procedures for accidents, protection of information and community relations. Article 11(1) of the Agreement granted Kenya the jurisdiction for civil claims and liabilities arising from activities in its territory under the agreement while the UK would have jurisdiction for civil claims and liabilities arising from activities in its territory. The allegation in the petition was that British soldiers caused a huge fire in the military training grounds in Lolldaiga, which was in Kenya. Kenya therefore had jurisdiction pursuant to article 11 of the agreement. The waiver of claims on the latter part of that clause would only apply to injury or death suffered by the Armed Forces personnel of either nation, or for damage to or loss of property owned by the Armed Forces if such injury, death, damage or loss was caused by the acts or omissions of the other party in the course of official duty. As parties to the Defence Cooperation Agreement dated December 9, 2015, which was entered into force on the date the UK Government received the Note Verbale dated October 7, 2016 from the Republic of Kenya, both the UK Government and the Government of Kenya waived their immunity to the extent stipulated in that agreement. Article 23 required the Visiting Forces to respect and be sensitive to the traditions, customs and culture of the communities in the places where they were deployed in the Host Nation. Article 23 (3) stipulated that the Sending Nation would pay compensation within the framework of the Defence Cooperation Agreement where they were found liable for causing any death, injury, loss or damage to the persons and/or property of members of such local communities. Article 23 anticipated the kind of claim brought by the petitioners. Article 24 established and gave the role of the Inter-Governmental Liaison Committee. The Committee was empowered to regulate its proceedings and formulate rules to govern its work and to co-opt persons with the necessary knowledge or skills required for the functions of sub committees. Article 25 stated that all disputes related to the interpretation or implementation of the Agreement would be resolved through consultation or negotiation between the Parties through the Inter- Governmental Liaison Committee and those not resolved by the Committee would be dealt with through diplomatic channels. The respondents did not confirm whether the Defence Cooperation Agreement was in public domain for the petitioners to file their claim for compensation with the Inter-Governmental Liasion Committee. Despite anticipating that third parties may lodge civil claims under the defence cooperation, the agreement was silent on how third parties were to present their civil claims to the Liaison Committee for compensation. The claim by the petitioners that the Inter-Governmental Liaison Committee would not grant them a fair hearing was unfounded and lacked merit. The Government of Kenya was required to have due regard to these constitutional tenets regarding the protection of the environment when it entered into the Defence Cooperation Agreement with the UK Government. The petitioners sought for restoration of the environment which they contended was damaged by the fire. The prayer for restoration resonated well with article 8 of the Defence Cooperation Agreement regarding the obligation of the Host Nation and Visiting Forces to ensure the environment was protected and preserved. Article 70 of the Constitution mandated the Environment and Land Court (ELC) to enforce environmental rights and to make orders or give directions it considered appropriate to prevent, stop or discontinue acts that were harmful to the environment. For acts occurring in Kenya, the jurisdiction over civil claims and liabilities arising from article 11 as well as claims relating to the protection, preservation and restoration of the environment pursuant to article 8 of the Defence Cooperation Agreement was to be exercised by the ELC which was mandated by article 162(2) of the Constitution to hear and determine disputes relating to the environment and the use and occupation of, and title to land. It was improper for the petitioners to adduce evidence through their submissions regarding how the fire was started. That evidence should have been brought through affidavits with the respondents being given an opportunity to rebut it. The court disregarded that evidence and only considered the other aspects of the petitioners’ submissions. The petitioners ought to exhaust the dispute resolution mechanism provided in the Defence Cooperation Agreement. Petition stayed pending the determination of the Inter-Governmental Liaison Committee. *Orders* The dispute was to 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 relevant authorities of the Government of Kenya and the Government of the UK shall cooperate in the carrying out of all necessary investigations into the claims made in the amended petition, and in the collection and production of evidence in accordance with article 11 of the Defence Cooperation Agreement. The Inter-Governmental Liaison Committee would meet in Kenya with a view to establishing whether the Visiting Forces, their members, employees or agents were liable for the claims made by the Petitioners. The Committee shall afford the petitioners a hearing to present their case and must observe the rules of natural justice. The Inter-Governmental Liaison Committee will consider, recommend and oversee the resolution of this dispute. If any civil claim against the Visiting Forces will not be resolved, the Committee will refer the unresolved civil claims to mediation and arbitration as stipulated in article 25 of the Defence Cooperation Agreement. If the Inter-Governmental Liaison Committee establishes that the Visiting Forces, their members, employees or agents were liable for the claims made by the petitioners, then the relevant authorities of the Government of Kenya shall submit a report to the relevant authorities of the Government of the UK who shall pay prompt and adequate compensation to the petitioners as provided in article 11(3) and (4) and Article 23(3) of the Defence Cooperation Agreement. If the Inter-Governmental Liaison Committee established that damage was caused to the environment by the fire incident on March 25, 2021 in Lolldaiga Hills and its surrounding area, and that the fire was started by the negligent acts of the Visiting Forces, their members, employees or agents as contended in the amended petition, the relevant authorities of the Government of Kenya and the Government of the UK shall cooperate in the restoration of the environment damaged by the fire. A copy of the settlement of the dispute would be filed in court within 14 days of the date of the determination of the dispute by the Inter-Governmental Liaison. This suit was stayed until the Inter-Governmental Liaison Committee resolved the matter under the Defence Cooperation Agreement. The costs of the application shall abide the outcome of the determination of the claim by the Inter-Governmental Liaison Committee.

Kenya Law Weekly Issue 022/23-24

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