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ELCDismissedMiscellaneous Application arising from Siakago CMCC No. 17 of 2018· [2019] KEELC 2073 (KLR)

Charles Kimeu Mwikyuvya v Kenya Wildlife Service [2019] KEELC 2073 (KLR)

Environment and Land Court
18 July 2019
YAY.M. Angima
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Wildlife injury or death claims in Kenya must start with the County Wildlife Compensation Committee, not the courts, before any appeal is possible.

What this practically means

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Executive summary

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The applicant, whose son died in a crocodile attack along Tana River near Masinga Dam in 2015, sought transfer of Siakago CMCC No. 17 of 2018, a compensation claim against Kenya Wildlife Service, from the Chief Magistrate's Court to the Environment and Land Court at Embu under section 18 of the Civil Procedure Act, contending the magistrate's court had no jurisdiction. The application was unopposed; the respondent did not file a response or appear despite service, but the court reserved ruling to examine the propriety of the transfer. The court identified the sole question as whether the ELC has original jurisdiction over the claim. Examining section 25 of the Wildlife Conservation and Management Act, 2013, and the Third Schedule (which lists crocodiles), the court held that such claims must first be launched before the County Wildlife Conservation and Compensation Committee, with appeals lying to the National Environment Tribunal and a second appeal to the ELC. The court therefore has only appellate jurisdiction, and transferring the suit would be futile, as it would merely move it between courts both lacking jurisdiction. Although the claim was also grounded on the Law Reform Act and Fatal Accidents Act, the court applied the canon that specific statutes prevail over general ones, reinforced by the Court of Appeal's decision in Peter Muturi Njuguna v Kenya Wildlife Service, which held that specific statutory redress procedures must be strictly followed. The notice of motion was dismissed with no order as to costs.

Key legal issues

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01

Original jurisdiction of the ELC over wildlife compensation claims

Holding

The ELC has no original jurisdiction; claims under section 25 of WCMA 2013 begin at the County Wildlife Conservation and Compensation Committee, with appeals to the NET and then the ELC

Reasoning

Section 25(1) requires claims for death or injury by wildlife listed in the Third Schedule (which includes crocodiles) to be launched before the County Wildlife Conservation and Compensation Committee, which verifies and forwards claims to the Cabinet Secretary for compensation. Section 25(5) provides appeals to the NET and a second appeal to the ELC. The court therefore holds only appellate jurisdiction.

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02

Interaction of WCMA 2013 with the Law Reform Act and Fatal Accidents Act

Holding

The specific statutory regime under WCMA 2013 takes precedence over the general statutes; the applicant cannot bypass the statutory procedure by framing the claim under the Law Reform Act and Fatal Accidents Act

Reasoning

Parliament enacted section 25 of WCMA 2013 knowing the general statutes existed, and the canon of interpretation that specific statutes prevail over general ones applies. The Court of Appeal in Peter Muturi Njuguna v Kenya Wildlife Service, dealing with the repealed Act's analogous procedure, confirmed that specific redress procedures must be strictly followed.

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03

Propriety of the transfer application under section 18 of the Civil Procedure Act

Holding

The transfer application lacks merit because it would move the suit from a court without jurisdiction to another court equally without jurisdiction

Reasoning

Since the ELC itself lacks original jurisdiction over the claim, granting the transfer would be an exercise in futility. The application was unopposed but the court reserved ruling to consider the propriety of the application, and dismissed it.

p. 2

Legal principles established

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  • The Environment and Land Court has no original jurisdiction over compensation claims under section 25 of the Wildlife Conservation and Management Act, 2013; it has only appellate jurisdiction from the National Environment Tribunal
  • A specific statutory remedy takes precedence over general statutes such as the Law Reform Act and the Fatal Accidents Act
  • Where a specific procedure for redress of grievances exists, it must be strictly followed

Court orders

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  1. 1.The applicant's notice of motion dated 6th February 2019 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Section 18(1)(b)(ii) & (2) of the Civil Procedure Act (transfer of suits); jurisdictional inquiry under section 25 of the Wildlife Conservation and Management Act, 2013; Article 159 of the Constitution

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, "Charles Kimeu Mwikyuvya v Kenya Wildlife Service [2019] KEELC 2073 (KLR)", Case Analysis (2019). Miscellaneous Application arising from Siakago CMCC No. 17 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2073/eng@2019-07-18

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