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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal 173 of 1991· [1998] KECA 8 (KLR)

Joseph Boro Ngera Supaduka Nakuru Limited v Kenya Wildlife Service

Court of Appeal of Kenya
2 October 1998
1,039 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that farmers can sue the Kenya Wildlife Service for failing to protect their crops, even where no compensation law exists.

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, planted 480 acres of wheat in 1991 which was allegedly destroyed by Guinea Fowls from the Park, and sued the Kenya Wildlife Service for K.Shs. 5,520,000/- in special damages for breach of statutory duty under section 3A(c) and (1) of the Wildlife (Conservation and Management) (Amendment) Act, No. 16 of 1989. In the High Court, Rimita, J. upheld a preliminary objection based on section 62(1) of the Wildlife (Conservation and Management) Act as amended, holding that the 1989 amendment deliberately removed compensation for loss of property and placed no liability on the Service for such loss, and dismissed the suit with costs. The Court of Appeal (Gicheru, J.A., with Tunoi and Pall, J.J.A. agreeing) allowed the appeal. The court held that although the amendment removed compensation, it substituted a statutory function of rendering services to farming and ranching communities for the protection of agriculture against destruction by wildlife. Relying on Clerk and Lindsell on Tort, the court applied the presumption that where a statute creates a duty but imposes no remedy, an injured person has a right of action, particularly where the statute benefits a designated class - here the farming community to which the appellants belonged. The High Court ruling was set aside, the appellants' suit was reinstated for hearing before a judge other than Rimita, J., and the appellants were awarded the costs of the appeal. The judgment binds lower courts on the implied right of action for breach of statutory duty.

Key legal issues

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01

Whether the removal of compensation for property damage by wildlife under Act No. 16 of 1989 extinguished all causes of action against the Kenya Wildlife Service

Holding

No. The amendment replaced compensation with a statutory function of rendering protective services to farming communities; breach of that function is actionable even without an express statutory remedy.

Reasoning

The court accepted that Act No. 16 of 1989 removed compensation for loss of property caused by wildlife, but held that in its place it imposed on the Service the function of rendering services to farming and ranching communities for the protection of agriculture. Applying the presumption in Clerk and Lindsell on Tort, a statutory duty without an express remedy carries an implied right of action for persons injured by its breach, otherwise the provision would be a pious aspiration.

p. 2
02

Whether the appellants, as members of the farming community, were the class of persons intended to be benefited by section 3A(1)

Holding

Yes. The appellants were persons in the farming communities to whom the respondent was bound to render services for the protection of agriculture against destruction by wildlife.

Reasoning

The court applied the qualification that a right of action arises where the statute was intended to benefit designated individuals or a particular class rather than the public at large. Section 3A(1) expressly identifies the farming and ranching communities of Kenya as the beneficiaries of the Service's protective services, and the appellants, as owners of land surrounding the Lake Nakuru National Park who planted wheat, fell squarely within that class.

p. 2

Legal principles established

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  • Where a statute creates a duty but imposes no remedy for its breach, a person injured by the breach has a right of action; absence of an express remedy is no bar to a claim for breach of statutory duty.
  • Failure by the Kenya Wildlife Service to render services to farming and ranching communities under section 3A(1) of the Wildlife (Conservation and Management) Act constitutes a breach of statutory duty actionable notwithstanding the non-provision of a remedy.

Court orders

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  1. 1.Appeal allowed
  2. 2.The ruling of the High Court upholding the preliminary objection and dismissing the suit is 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 to have the costs of the appeal
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 268 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling/order of the High Court (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, "Joseph Boro Ngera Supaduka Nakuru Limited v Kenya Wildlife Service", Case Analysis (1998). Civil Appeal 173 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/8/eng@1998-10-02

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