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Court of AppealDismissedCivil Appeal No. 212 of 2013· [2014] KECA 330 (KLR)

Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited [2014] KECA 330 (KLR)

Court of Appeal of Kenya
10 October 2014
3,285 words in judgment
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The bottom line

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Kenya's Court of Appeal held KWS must pay KShs 31.5 million for destroyed crops, confirming farmers can sue when wildlife protection duties are neglected.

What this practically means

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Executive summary

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The Court of Appeal (Nambuye, M'inoti and Mohammed, JJ.A) dismissed an appeal by Kenya Wildlife Services against a High Court judgment (Ouko, J, 27 July 2011 in HCCC No. 256 of 2002) awarding Rift Valley Agricultural Contractors Limited KShs.31,500,000 plus costs for crops destroyed by wild animals said to have invaded its farm from the Maasai Mara between March and July 2000. The appellant argued that section 3A of the Wildlife (Conservation and Management) Act, Cap 376 imposed no duty to protect crops, that the rule in Rylands v Fletcher did not apply since wildlife belongs to the Government, that the Maasai Mara was controlled by Narok County, that the migration of wildebeest was an act of God, that Joseph Boro Ngera was distinguishable, and that special damages were proved only by unverifiable estimates. The Court held that section 3A(l) imposes on KWS a statutory duty to render services to the farming and ranching communities to protect agriculture against destruction by wildlife, and, following Joseph Boro Ngera, that the absence of an express statutory remedy is no bar to a common law claim for damages. It held that act of God is a question of fact and that KWS, as the statutory custodian of wildlife, should have foreseen drought-driven migration, so the defence failed. On quantum, the Court found the special damages pleaded and proved on a balance of probabilities through lease agreements, independent reports, receipts and invoices, noting the trial court had already disallowed unproved portions. The appeal was dismissed with costs to the respondent both in the appeal and in the High Court.

Key legal issues

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01

Scope of KWS's statutory duty under section 3A of Cap 376

Holding

Section 3A creates a statutory duty on KWS to protect crops against destruction by wildlife; failure to perform that function is a breach of statutory duty notwithstanding the absence of an express remedy

Reasoning

The court reproduced the functions in section 3A, including paragraph (l) requiring KWS to render services to the farming and ranching communities for protection of agriculture and animal husbandry against destruction by wildlife. Relying on Joseph Boro Ngera, it held that where a statute creates a duty without a remedy, common law damages remain available, citing Halsbury's and Clerk & Lindsell on the presumption of a right of action.

p. 5
02

Whether wildlife migration causing crop destruction is an act of God

Holding

No. The defence of act of God does not apply because the appellant, as the statutory entity in charge of wildlife, should have foreseen the possibility of drought-driven migration damaging crops

Reasoning

Applying Winfield and Jolowicz on Torts, the court held that the essence of an act of God is a process of nature not due to the act of man, judged by whether human foresight and prudence could recognise the possibility of the event. Whether an act is an act of God is a question of fact, and the movement of wild animals due to drought and migration was foreseeable by KWS.

p. 6
03

Proof of special damages

Holding

Special damages of KShs.31.5 million were pleaded and proved on a balance of probabilities through lease agreements, independent reports, receipts and invoices; strict proof depends on the circumstances

Reasoning

The court reiterated the rule that special damages must be pleaded and strictly proved, citing Coast Bus Service and Ouma v Nairobi City Council with Ratcliffe v Evans. It found the respondent adduced lease agreements (PMF1(i)-(x)), independent valuation reports, and receipts and invoices; the trial court had already scrutinised and rejected unproved portions, so the award of KShs.31.5 million was justified.

p. 6
04

Distinguishing Joseph Boro Ngera

Holding

The appellant's attempt to distinguish Joseph Boro Ngera failed; the court adopted its holdings as applicable to the present case

Reasoning

The court quoted both Gicheru, J.A. and Pall, J.A. from Joseph Boro Ngera and applied their reasoning: Act No. 16 of 1989 removed statutory compensation but substituted the duty in section 3A(l), and breach of that duty sounds in damages even absent an express statutory remedy. The case was therefore followed rather than distinguished.

p. 5
05

Duties of a first appellate court

Holding

A first appellate court is entitled to reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses

Reasoning

Framing its review function on a first appeal, the court invoked Selle v Associated Motor Boat Co, Kenya Ports Authority v Kuston and Pil Kenya Ltd v Oppong to justify re-evaluating the entire record on liability and quantum.

p. 3

Legal principles established

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  • Section 3A(l) of the Wildlife (Conservation and Management) Act, Cap 376 imposes a statutory duty on KWS to render services to the farming and ranching communities to protect agriculture against destruction by wildlife, and the absence of an express statutory remedy for breach is no bar to a common law claim for damages
  • Whether an event constitutes an act of God is a question of fact, turning on whether human foresight and prudence could reasonably recognise the possibility of such an event
  • A statutory body entrusted with wildlife should foresee the movement of wild animals such as during drought and migration, so such movement is not an act of God

Court orders

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  1. 1.Dismissal of the appeal
  2. 2.Costs of the appeal and of the High Court awarded to the respondent

Authorities

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Legislation

  • Wildlife (Conservation and Management) Act, Cap 376 (as amended by Act 16 of 1989)section 3A, including paragraphs (a) to (l)
  • Wildlife Conservation and Management Act No. 47 of 2013repeal of Cap 376, assented 24 December 2013, operational 10 January 2014

Cases cited (8)

  • Rylands v Fletcher
    (1866) L.R. 1 Ex 265
  • Joseph Boro Ngera & Supaduka Nakuru Limited v Kenya Wildlife Services
    Civil Appeal No. 171 of 1997
  • Selle v Associated Motor Boat Co Ltd
    (1968) EA 123
  • Kenya Ports Authority v Kuston (Kenya) Ltd
    (2009) 2 EA 212
  • Pil Kenya Ltd v Oppong
    (2009) KLR 442
  • Coast Bus Service Ltd v Murunga & 2 Others
    CA 92 of 1992
  • Ouma v Nairobi City Council
    (1976) KR 304
  • Ratcliffe v Evans
    (1892) 2 Q.B. 524
On appeal from
High Court of Kenya at Nakuru
HCCC No. 256 of 2002
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act (appeal from the High Court as of right on facts and law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited [2014] KECA 330 (KLR)", Case Analysis (2014). Civil Appeal No. 212 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/330/eng@2014-10-10

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