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Court of AppealDismissedCivil Appeal No. 306 of 2015· [2017] KECA 234 (KLR)

Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR)

Court of Appeal
19 October 2017
2,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that wildlife attack victims can sue KWS directly in the High Court instead of using the statutory compensation committee.

What this practically means

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Executive summary

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The respondent, father and legal representative of the estate of 13-year-old Mwende Musyoki, who was killed by a crocodile while fetching water at Tana River, claimed the statutory maximum compensation of Kshs 5 million from Kenya Wildlife Service under the Wildlife Conservation and Management Act, 2013 after the Service failed to process his claim. The High Court at Garissa (Dulu, J.) dismissed a preliminary objection on jurisdiction, entered liability by consent at 80:20, and awarded Kshs 4,032,000 with costs. The Service appealed on two grounds: that the High Court lacked jurisdiction, compensation being the preserve of the statutory committee under Section 25 of the Act, and that the award was excessive. On appeal, counsel for the Service abandoned the quantum ground, leaving jurisdiction as the sole issue. The Court of Appeal held that Section 25(1), using the permissive word 'MAY' and containing no ouster clause, does not divest the High Court of jurisdiction; the statutory committee route is an option designed to ease access to justice for rural claimants, not an exclusive forum. Decisions under the identically worded repealed Cap 376 remained applicable. The court also reiterated, applying Mercy Kirito Mutegi, that parties cannot confer jurisdiction by consent, though the High Court had jurisdiction independently of the consent order. The appeal was dismissed with costs to the respondent, affirming the judgment below.

Key legal issues

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01

Whether Section 25 of the Wildlife Conservation and Management Act, 2013 ousts the jurisdiction of the High Court over human-wildlife conflict claims

Holding

Section 25 does not oust the High Court's jurisdiction; it is permissive and provides an optional first avenue for aggrieved parties, who remain free to pursue remedies in the conventional courts.

Reasoning

The court applied a literal interpretation of Section 25(1), noting the use of 'MAY' rather than mandatory language and the absence of any express ouster provision. The committee route was designed to ease access to justice for rural claimants far from courts, not to shut out those preferring the conventional courts. The equivalent provision in the repealed Cap 376 was likewise permissive, so prior decisions under that Act remained relevant. Every person has a right to pursue a common law remedy for a wrong, and ubi jus ibi remedium applies.

p. 3
02

Whether a consent order on liability between the parties can confer jurisdiction on the High Court

Holding

Parties cannot confer jurisdiction on a court by consent where none exists; however, the High Court had jurisdiction in any event, so the consent order was not the basis of its jurisdiction.

Reasoning

Relying on its prior decision in Mercy Kirito Mutegi vs Beatrice Nkatha Nyaga & 2 Others, the court reiterated that jurisdiction flows only from the Constitution or statute. The respondent's submission that the consent on liability conferred jurisdiction was therefore wrong as a matter of principle, but immaterial to the outcome because the High Court independently had jurisdiction over the claim.

p. 4
03

Whether decisions under the repealed Cap 376 remain applicable to the current Wildlife Conservation and Management Act, 2013

Holding

Yes; because Section 25 of the current Act is couched in exactly the same permissive words as Section 62(1) of the repealed Cap 376, prior decisions remain relevant.

Reasoning

The appellant's counsel had sought to distinguish the authorities cited on the ground that they were determined under the repealed statute. The court rejected this, observing that the wording of the permissive provision is identical in both statutes, so the jurisprudence on jurisdiction developed under Cap 376 carries over to the 2013 Act.

p. 3

Legal principles established

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  • Section 25 of the Wildlife Conservation and Management Act, 2013 does not oust the jurisdiction of the High Court; it merely offers a claimant an optional, more accessible statutory avenue for compensation, and a claimant may pursue a common law remedy in court instead.
  • Parties cannot confer jurisdiction on a court by consent where none exists; jurisdiction is conferred only by the Constitution or statute.
  • Where a statute intends to remove matters from the jurisdiction of the courts, it must expressly state so; permissive language such as 'may' does not amount to an ouster of the High Court's jurisdiction.
  • Internal arrangements within a public body as to which officer or cabinet secretary disburses compensation cannot be used to deny a party compensation duly owed.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
High Court of Kenya at Garissa
HCCC No. 5 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Constitution over appeals from the High Court; appeal against the dismissal of the appellant's preliminary objection on jurisdiction and the award of compensation under the Wildlife Conservation and Management Act, 2013

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 Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR)", Case Analysis (2017). Civil Appeal No. 306 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/234/eng@2017-10-19

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