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Court of AppealDismissedNot stated in the judgment

Njuguna v Kenya Wildlife Service (Civil Appeal 260 of 2013) [2017] KECA 42 (KLR)

Court of Appeal of Kenya
22 November 2017
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
2,804 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A farmer injured by a wild pig lost his case against Kenya Wildlife Services because he bypassed the statutory compensation committee and went straight to court.

What this practically means

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Executive summary

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This is an appeal from the High Court (Ouko, J) which had upheld a magistrate's decision dismissing a claim by a farmer injured by a wild pig in February 2000. The claimant sued the Kenya Wildlife Services (KWS) in negligence and/or breach of statutory duty. KWS raised a preliminary objection grounded on section 62 of the then-repealed Wildlife (Conservation and Management) Act, which prescribed a district committee procedure for compensation for bodily injury or death caused by wildlife. Both courts below upheld the objection and dismissed the suit. The Court of Appeal framed two issues: whether section 62(1) ousts the jurisdiction of the court, and whether the preliminary objection was properly upheld. The Court held that the word 'may' in section 62(1) does not oust the court's jurisdiction because the committee's decision remains amenable to judicial review; however, once a claimant elects to claim compensation, he is compelled to use the statutory forum first. Relying on its established exhaustion jurisprudence (Speaker of the National Assembly v Karume; Kimani Wanyoike), the Court held that the specific statutory procedure must be strictly followed, and that pursuing the claim simultaneously before the District Committee and the court was an abuse of process. The appeal was dismissed with no order as to costs, but the Court corrected the consequential order: since the suit was disposed of on a preliminary objection, dismissal was inappropriate and was set aside and substituted with an order of striking out.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the provisions of Section 62 (1) of the Wildlife (Conservation and Management) Act, Cap 376, Laws of Kenya, oust the jurisdiction of court.
  2. 2.Whether the preliminary objection was properly upheld.

Key legal issues

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01

Whether the word 'may' in section 62(1) of the Wildlife (Conservation and Management) Act ousts the jurisdiction of the court

Holding

The word 'may' does not oust the court's jurisdiction, since the committee's decision is amenable to judicial review; but the statutory procedure must first be exhausted, so the claimant must go to the District Committee before approaching the court.

Reasoning

The Court held that the meaning of 'may' depends on context and legislative intention, drawing on Sony Holdings and Johnson's Tyne Foundry. The High Court correctly found that the committee's decision was challengeable by judicial review, so jurisdiction was not ousted. Nevertheless, there was compulsion to exhaust the statutory procedure before going to court.

p. 4
02

Whether the preliminary objection was properly upheld

Holding

Yes. The suit should have been lodged with the District Committee first; the trial court and the High Court were right to reject the suit, though the correct order was striking out rather than dismissal.

Reasoning

Section 62(1) explicitly prescribes the District Committee as the first port of call for bodily injury claims from wild animals. Following the exhaustion doctrine in Speaker of the National Assembly v Karume and Kimani Wanyoike, the Court held that the specific statutory procedure must be strictly followed, and that simultaneous pursuit of the claim in court and before the committee was an abuse of process.

p. 6

Legal principles established

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  • Where there is a specific procedure provided by statute for redress of a particular grievance, that procedure must be strictly followed and exhausted before resort to the courts, though decisions of the statutory forum remain amenable to judicial review.
  • Once a claimant elects to make a claim under a statutory compensation scheme, he is compelled to lodge it at the appointed forum.
  • Pursuing a claim simultaneously before a statutory committee and a court of law based on the same facts constitutes an abuse of court process.
  • Where a suit is disposed of on a preliminary objection without hearing it on the merits, the correct consequential order is striking out rather than dismissal.

Court orders

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  1. 1.The order for dismissal of the suit by the two courts below is set aside and substituted with an order striking out the suit.
  2. 2.The appeal is dismissed.
  3. 3.No order as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
RN
majority
PK
majority
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal (not stated with a specific constitutional/statutory provision in the judgment)

Relief refused

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The appellant's appeal in its entirety

The Court found that the specific statutory procedure under section 62(1) of the Act ought to have been exhausted before going to court, and that filing a claim before the District Committee and a suit for negligence on the same facts was an abuse of court process.

p. 6

Costs

We make no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For those reasons we find no merit in this appeal and we order that it be and is hereby dismissed. We make no order as to costs.
p. 6Final orders - dismissal of appeal
The order for dismissal shall thus be set aside and substituted accordingly.
p. 6Final orders - substitution of dismissal with striking out
where there is a specific procedure as to the redress of grievances, the same ought to be strictly followed.
p. 5Exhaustion of statutory remedies
Filing the claim before the District committee as the appellant appears to have done and filing a suit for negligence based on the same facts is certainly in abuse of court process.
p. 6Abuse of court process
Jurisdiction is everything.
p. 5Jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Njuguna v Kenya Wildlife Service (Civil Appeal 260 of 2013) [2017] KECA 42 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/42/eng@2017-11-22

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