Decades of alleged abuse by British soldiers in Kenya face new legal challenges

When Noldonyo Piro and her older sister were growing up, they were inseparable. Just a year apart, Piro, then about 15, and Mantoi Lekoloi Kaunda, 16, spent most days grazing the family’s herd of about 250 goats and sheep across the vast plains that stretch for miles around their home in northern Kenya.

“We lived a very simple life,” Piro, now in her 40s, recalls, sitting outside her small home made of tin sheets and sticks, topped with a patchwork roof of plastic bags in Archer’s Post, a rural settlement in Samburu County.

“I remember we used to stand some distance away from each other, and then one of us would start singing, and the other would answer. We loved to play with each other and tell stories.”

As teenagers in the mid-1990s, their biggest fears involved the wildlife roaming the area — lions, cheetahs and elephants. The sisters had no reason to fear the British soldiers who had long trained on the outskirts of Archer’s Post. In fact, neither had ever seen a white man before — until, on one afternoon, everything changed.

Piro and Mantoi, who was about six months pregnant, were out herding livestock when Piro saw white soldiers approaching from behind.

“I felt scared and started running,” she tells Al Jazeera, staring at the thickets across the arid landscape. “One of them chased me and hit me on the back of my head.”

“I fell down, and the soldier stood on my arm until it snapped and broke.” She holds up the arm, still visibly indented where the bone broke.

Piro says the soldier then raped her until she passed out. When she regained consciousness, she was covered in blood. Nearby, her sister Mantoi lay with her eyes closed, lifeless.

Piro staggered home. “She was just shouting ‘problem, problem,’ and I could see she was having trouble walking,” her father, the late Kaunda Lekoloi, later told ITV. “She said the white men had attacked them.”

He went out to search for Mantoi.

“I found Mantoi covered in blood. I could see that she was dead. There were two sets of soldiers’ boot prints in the dust.”

He carried his daughter’s body home on a donkey and buried her the next morning.

“There was no one to tell,” Piro says.

No police post was within reach, and for a Samburu pastoralist in the 1990s, reporting an attack by men in foreign uniforms was unlikely to lead anywhere.

For years the family lived with the horror in silence, only whispered from household to household.

“After that day, I became more scared of white men than I was of lions,” Piro says, her eyes filling with tears. “Even now, when I think about what happened, it makes me sick to my stomach.”

No one has ever been charged over Mantoi’s alleged murder.

Her case is among decades of allegations against soldiers from the British Army Training Unit Kenya, or BATUK, that include rape, murder, abandoned children fathered by soldiers, deaths and severe injuries from unexploded ordnance, environmental destruction and fatal vehicle collisions.

The military arrangement dates back to a 1964 defence agreement, signed months after Kenya’s independence, that allowed United Kingdom forces to keep training on Kenyan soil.

Six decades later, BATUK remains embedded in northern Kenya, training around 10,000 soldiers a year in Laikipia and Samburu. There has been no known case in which British personnel accused in the cases documented by Kenyan communities and investigators have faced prosecution in Kenya.

The UK has repeatedly invoked sovereign immunity — the principle that one state cannot be sued in another’s courts — a claim that went untested for decades, keeping cases from reaching Kenyan judges.

Now, finally, that power imbalance is being challenged.

Mantoi’s case might have stayed buried had hundreds of women from the Maasai and Samburu tribes not come forward in 2003, alleging decades of rape by British soldiers and suing for negligence under UK law, arguing commanders had known of issues since 1977 and failed to act.

The Royal Military Police launched Operation Tasker in March 2003 to investigate the allegations. By October 2004, it had logged more than 2,000 allegations of rape and sexual violence involving British soldiers over the preceding four decades.

Kenya’s Criminal Investigation Department handled Mantoi’s case, and her father allowed her body to be exhumed — a profound cultural taboo in Samburu tradition. The pathologist told ITV at the time that the rib fractures indicated that considerable force was sustained to her back, suggesting a blow from a boot. Experts also recovered hair from her lower body, including an unidentified pubic hair.

Gideon Kibunja, the detective chief superintendent leading the investigation, was direct.

“The findings so far tend to agree with the claim by Mantoi’s sister that they were attacked by a British soldier,” he said, noting that investigators hoped UK authorities would help them obtain DNA samples from soldiers training in the area at the time.

Piro says that when the investigators left, her father quietly buried his daughter a second time, hoping that, after all those years, he might finally get some answers. He died shortly afterwards without seeing justice served, and the investigation went cold.

Despite the allegations by 2,000 women, the UK Ministry of Defence (MOD) announced in 2006 that the three-year investigation, Operation Tasker, had found no reliable evidence to support a single allegation, and claimed much of the evidence provided by Kenyan police and medical authorities appeared to have been fabricated. No one was prosecuted.

The investigators also failed to conduct DNA tests on any of the 69 mixed-race children whose mothers say were conceived when they were allegedly raped by British soldiers.

Piro says the family has not heard from the police since the exhumation and has never been shown the autopsy report.

Declassified UK, a British investigative media outlet, filed freedom-of-information requests with the MOD for documents on Mantoi's case, including the pathology report, DNA results and the ministry’s correspondence with Kenyan police and courts surrounding the exhumation.

The MOD confirmed it held some material but refused to release the records, saying they were scattered across electronic files and archive boxes and that searching them would take at least 14 days — far beyond the statutory cost limit of three and a half days of work. It told the journalists there was no way to narrow the request to bring it within the limit.

Last year, after Piro supplied a letter supporting the request, the MOD eventually released a single, redacted Royal Military Police interim investigation summary.

The report, provided to Al Jazeera by Declassified UK, documents seven unhealed rib fractures consistent with injuries sustained at or shortly before death, and a British military-type battery recovered two feet above the grave’s surface. The report notes that Kenyan police “appeared to apportion significant relevance to this find”.

But the British officer who wrote it disagreed, reasoning that Mantoi had been buried some 9km (6 miles) from where she was attacked. “The importance of this find is not shared by the undersigned,” he wrote.

The section titled The Kenya Police Enquiries is blacked out. The forensic results were still pending when it was written, and nothing further has been released.

Al Jazeera asked the MOD whether the forensic testing was ever completed, and whether British soldiers’ DNA had ever been compared with samples from the grave. It replied that the investigation and exhumation “were led by the Kenyan authorities”, with the Special Investigation Branch, the RMP’s investigative arm, “fully” supporting both, and directed further questions to the Kenyan police. Kenya’s Directorate of Criminal Investigations, the Attorney General and the Office of the Director of Public Prosecutions did not respond to questions about the case.

Operation Tasker "is now a closed investigation with no official requests to reopen it”, the MOD said.

Piro, meanwhile, struggles to believe justice will ever be possible.

“Nothing ever happens except people coming here, asking me questions, taking pictures and then leaving,” she says with a tired shrug. “Those men should have been arrested many years ago.”

But a new generation has taken up the question Piro was never allowed to ask: whether the British Army can be made to answer under Kenyan law. At the centre of this effort is a lawyer whose grandfather was among the last anti-colonial Mau Mau fighters to emerge from the forest after Kenya’s guerrilla war against British rule: Kelvin Mugambi Kubai.

Kubai, a 29-year-old advocate of the High Court of Kenya, was a child when investigators descended on Mantoi’s grave in 2004, 73km from his home in Meru County.

His late grandfather, Musa Mwariama, had fought British colonial forces in the forests of Mount Kenya decades earlier. A Mau Mau field marshal, he led fighters armed with a handful of guns and, more often, arrows and crude weapons against a better-equipped army.

While studying law at the University of Nairobi, Kubai encountered a pivotal 1913 case before the colonial high court in Mombasa: Ol le Njogo v. Attorney General — the first known case in which indigenous Africans in East Africa took the British Crown to a local colonial court.

A young Maasai man and seven other community leaders had challenged their forced eviction from Laikipia, arguing the agreements surrendering their ancestral land were invalid: Their paramount chief had no authority to give away communal territory.

Rather than contest the claim, the British Crown had the case dismissed on jurisdictional grounds: The agreements were treaties between sovereign powers, beyond the authority of domestic courts. Versions of that argument outlived the empire and were invoked repeatedly to shield Britain from legal challenges over colonial-era abuses.

“From that day, that case never escaped my mind,” Kubai tells Al Jazeera from his office in Nairobi. He did not know then that it would one day become his fight.

In 2021, a fire broke out during a UK military training exercise at the Lolldaiga Conservancy in Laikipia, scorching some 12,000 acres of grazing land and crops, killing livestock and blanketing nearby communities in smoke for days. Kubai and activists from the African Centre for Corrective and Preventive Action opened temporary offices to register victims.

Taking on the UK military was, in Kubai’s words, “uncharted waters”. Lawyers he consulted believed sovereign immunity made it unwinnable.

“When I brought up the case to my former professor, his answer was a blanket ‘No, you cannot sue the army; they have sovereign immunity,’” Kubai recalls.

Then a Swahili song came to mind: “I will not stand by while injustice reigns.”

“That’s something I share with my grandfather,” Kubai explains. “I can't cower from standing against injustices, and I can’t be silent in the face of evil.”

Despite the warnings, Kubai, then 23, filed a class-action lawsuit against BATUK at the Environment and Land Court on behalf of affected residents.

The British army responded much as it had a century earlier. BATUK was an organ of a sovereign state, its lawyers argued, and the Defence Cooperation Agreement governing its presence in Kenya — renewable every five years — was an accord between nations. Under sovereign immunity, Kenyan courts had no jurisdiction over a foreign power — the same argument used against the Maasai in 1913.

“It was shocking to me because I was facing the same defendant in essentially the same situation, and they came back with the same defence,” Kubai recalls, shaking his head.

“They were using a hundred-year-old trick on me,” he says. “But this time around, it didn’t work.”

Kubai's response was the text of the defence agreement itself. Under Article 6, Kenya has jurisdiction over criminal offences committed by British personnel — unless the offence arose in the course of “official duty,” in which case jurisdiction falls to the UK.

The agreement specifies that sexual offences, torture, slavery and robbery can never be treated as acts undertaken in the course of official duty. Murder, however, is absent from that list.

Article 11 goes further, giving Kenya jurisdiction over all civil claims arising in its territory and obliging Britain to pay “prompt and adequate compensation” where its forces are found liable. Article 23 requires the same for any death, injury, loss or damage caused to local communities.

Kubai argues that, despite the agreement’s provisions on civil claims and compensation, BATUK invoked sovereign immunity in the Lolldaiga litigation to challenge the Kenyan court’s jurisdiction.

“In this agreement, they expressly waived their immunity,” Kubai says of those provisions. “So you cannot waive something when it suits you, and then raise it again when it doesn’t suit you.”

In March 2022, the Environment and Land Court agreed. Justice Antonina Kossy Bor ruled that in signing the agreement, the UK had “waived their immunity to the extent stipulated”, giving Kenya jurisdiction over the Lolldaiga claim. She was not persuaded, she wrote, that starting “a massive destructive fire” could be considered part of military training or a sovereign act at all.

According to Kubai, it was the first time the British army had raised sovereign immunity in a Kenyan court and lost.

“This ruling broke through the ceiling and penetrated the shield of sovereign immunity that so many lawyers had been unwilling to challenge,” Kubai tells Al Jazeera.

But the victory came with a catch: The same judge ordered claimants to first exhaust a mechanism in the Defence Cooperation Agreement itself, the Intergovernmental Liaison Committee, a body of senior officials from both countries that meets roughly twice a year and, Kubai says, has no permanent office or published complaints procedure. The MOD says it is a forum and can meet virtually or in either country.

That process dragged on for years, and activists say around 50 elderly claimants died waiting. Last year, the UK agreed to pay 2.9 million pounds ($4m) to 7,723 claimants, some receiving as little as 22,500 Kenyan shillings — about $175 — and, under the confidential settlement, the UK accepted no liability for the fire.

But the case also established that, in certain circumstances, the British military could be held to account in Kenyan courts.

It wasn’t the only case shattering the perception that British soldiers were untouchable.

Agnes Wanjiru, a 21-year-old mother, was last seen in 2012 at a Nanyuki hotel with British soldiers. Her body was found two months later in a septic tank, and a 2019 Kenyan inquest — a fact-finding process, not a criminal trial — concluded that she had been unlawfully killed by one or more of the soldiers.