Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited [2014] KECA 330 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of KWS's statutory duty under section 3A of Cap 376
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
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.
Whether wildlife migration causing crop destruction is an act of God
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
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.
Proof of special damages
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
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.
Distinguishing Joseph Boro Ngera
The appellant's attempt to distinguish Joseph Boro Ngera failed; the court adopted its holdings as applicable to the present case
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.
Duties of a first appellate court
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
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.
Legal principles established
#- 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
#- 1.Dismissal of the appeal
- 2.Costs of the appeal and of the High Court awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- 217 Petitioners (Retirees of Co-operative Bank of Kenya Limited, Housing Finance Company of Kenya Limited, Kenya Post and Telecommunications Corporation, National Museum of Kenya and Nairobi Water and Sewerage Company Ltd) v Attorney General & Cabinet Secretary in-charge of Finance[2019] KEHC 10885 (KLR)13 Sept 2019
- Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR)[2017] KECA 234 (KLR)19 Oct 2017
- Simba Colt Motors Limited v James Gitahi Mwangi [2015] KECA 385 (KLR)[2015] KECA 385 (KLR)25 Sept 2015
Cite this brief
#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.