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Court of AppealAllowedCivil Appeal No 171 of 1997

Ngera & another v Kenya Wildlife Service (1998) 1KLR (E&L) [1998] KECA 5 (KLR)

Court of Appeal of Kenya
2 October 1998
3,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that KWS must protect farmers from wildlife damage, and farmers can sue even where the law provides no direct compensation scheme.

What this practically means

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Executive summary

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The appellants, owners of land surrounding the Lake Nakuru National Park, lost 480 acres of wheat worth Ksh 5,520,000 to birds from the park between April and October 1991. They sued the Kenya Wildlife Service for breach of statutory duty under sections 3A(c) and (1) of the Wildlife (Conservation and Management) Act, cap 376, as amended by Act No 16 of 1989. Rimita J upheld a preliminary objection founded on section 62(1) of the Act, holding that the amendment had deliberately removed compensation for loss of property caused by wildlife and placed no liability on KWS, and dismissed the suit with costs. Allowing the appeal, the Court of Appeal held that section 3A(1) imposes a statutory obligation on KWS to render services to the farming and ranching communities for the protection of agriculture against destruction by wildlife. Although Act No 16 of 1989 removed the statutory compensation scheme, it substituted the service-rendering function; failure to perform it would be a breach of statutory duty notwithstanding the absence of a statutory remedy. Applying the presumption that a statute creating a duty without a remedy implies a right of action, the court held the appellants could pursue their common law remedy. The court also criticised the trial judge for ignoring the obligations imposed by section 3A and for summarily dismissing a claim not plainly unsustainable. The appeal was allowed, the dismissal was set aside, the suit was reinstated for trial before a judge other than Rimita J, and the appellants received the costs of the appeal.

Key legal issues

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01

Whether KWS owes a statutory duty to the farming and ranching communities under section 3A(1) of the Act

Holding

Yes. Giving the provision its plain and ordinary meaning, Parliament imposed an obligation on KWS to render services necessary to protect a limited class of persons, namely the farming and ranching communities.

Reasoning

The court construed section 3A(1) of the Act as amended by Act No 16 of 1989. Although the amendment removed compensation for damage or loss of crops or property, it substituted a function of rendering services to the farming and ranching communities for the protection of agriculture and animal husbandry against destruction by wildlife. The appellants, as wheat farmers whose crop was destroyed by birds from the Lake Nakuru National Park, fell within that protected class.

p. 2
02

Whether the absence of a statutory remedy bars a right of action for breach of the statutory duty

Holding

No. Where a statute creates a duty but provides no remedy, there is a presumption that an injured person has a right of action, and the claimant may pursue the common law remedy.

Reasoning

Relying on Clerk & Lindsell on Torts and Odgers on Construction of Deeds and Statutes, the court held that where a statute gives a right but no form of remedy, the party may proceed by action at common law. The non-provision of a remedy in the Act did not extinguish the right of action; otherwise the statutory provision would be a pious aspiration that should never have found space in the statute book.

p. 3
03

Whether the suit was properly dismissed summarily on a preliminary point of law

Holding

No. The learned judge's ruling was silent on the respondent's obligations under section 3A, and summary dismissal was inappropriate where the claim was not on its face unsustainable.

Reasoning

The court noted that the judgment below discussed the respondent's powers under the Act but was completely silent about its obligations under section 3A(l), despite being specifically invited to interpret that provision. Citing Attorney General of Duchy of Lancaster v L & N W Ry Co, the court held that summary process to dismiss an action should only be adopted where the claim is clearly unsustainable on its face, which was not the case here.

p. 12

Legal principles established

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  • Where a statute creates a duty but imposes no remedy, civil or criminal, for its breach, there is a presumption that a person injured by the breach has a right of action, for otherwise the statute would be but a pious aspiration.
  • The absence of a remedy provided by the Wildlife (Conservation and Management) Act for loss resulting from damage by wildlife does not bar a claimant's common law remedy for breach of statutory duty.
  • Section 3A(1) of the Wildlife (Conservation and Management) Act imposes an obligation on the Kenya Wildlife Service to render services necessary to protect the farming and ranching communities against destruction by wildlife.
  • Summary dismissal of an action without trial should only be adopted where the claim is clearly unsustainable on its face.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the superior court dismissing the appellants' suit, with costs to the respondent, set aside
  3. 3.Appellants' Civil Suit No 268 of 1992 reinstated and to proceed to hearing before a judge of the superior court other than Rimita J
  4. 4.Appellants awarded the costs of the appeal
On appeal from
High Court of Kenya at Nakuru
HCCC No 268 of 1992
Jurisdiction invoked
First appellate jurisdiction over the High Court (ruling in HCCC No 268 of 1992); no specific constitutional provision cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngera & another v Kenya Wildlife Service (1998) 1KLR (E&L) [1998] KECA 5 (KLR)", Case Analysis (1998). Civil Appeal No 171 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/5/eng@1998-10-02

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