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Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 11 of 2015

Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited

Supreme Court of Kenya
27 April 2018
6,704 words in judgment
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AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya Wildlife Service must pay farmers for crop damage by wildlife, even if law doesn't explicitly say so.

What this practically means

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The Supreme Court confirmed that Kenya Wildlife Service (KWS) is liable for crop destruction by wildlife, even though the Wildlife Act doesn't expressly state compensation. The duty to protect agriculture under section 3A(1) creates a legal obligation that can be enforced through a negligence claim. Wildlife migration is a predictable annual event, not an act of God. KWS cannot escape this duty by delegating it or claiming the government is responsible.

Executive summary

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The Supreme Court dismissed an appeal by the Kenya Wildlife Service (KWS) against a Court of Appeal decision that had upheld a High Court judgment awarding Kshs 31,500,000 in special damages to Rift Valley Agricultural Contractors Limited for crops destroyed by wildlife from the Maasai Mara Game Reserve. The central issue was whether KWS was liable for the loss. The Supreme Court held that section 3A(l) of the Wildlife (Conservation and Management) Act imposes a statutory duty on KWS to render services necessary for the protection of agriculture against destruction by wildlife. Although the Act does not expressly provide a remedy for breach, the court found that this duty is actionable under the common law tort of negligence. The court distinguished the rule in Rylands v Fletcher, finding it inapplicable because the presence of wildlife is not a non-natural use of land, KWS did not bring the animals onto the land, and KWS was not in occupation or control of the land. The court also rejected the defence of 'act of God', holding that the annual migration of wildlife is foreseeable and therefore not an act of God. The court further held that KWS could not abdicate its statutory duty to the Narok County Government, and that KWS, not the national government, was liable as the entity with the duty of control over the wildlife. The court made obiter recommendations for legislative intervention to address the disjointed compensation framework where KWS manages the Maasai Mara but does not collect its revenue, and suggested that Parliament consider mandatory insurance for farmers near game reserves. The final orders upheld the Court of Appeal and High Court judgments, with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether section 3A(l) of the Wildlife (Conservation and Management) Act, Chapter 376 of the Laws of Kenya as amended, and any breach thereof of the said section imposes a liability on the part of the appellant, the Kenya Wildlife Service, to compensate any person for loss or destruction to crops caused by wildlife?
  2. 2.Whether there is a common law obligation under the principle in Donoghue v. Stevenson and the rule in Ryland v. Fletcher on the part of Kenya Wildlife Service to compensate any person for damage or destruction caused by wildlife?
  3. 3.Whether damage caused by migrating wildlife is an act of God and the loss lies where it falls?
  4. 4.Whether the Government ought to be liable for destruction by wildlife?
  5. 5.Whether the respondent is liable for contributory negligence?

Key legal issues

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01

Whether section 3A(l) of the Wildlife Act imposes a liability on KWS to compensate for loss or destruction of crops by wildlife.

Holding

Yes, a breach of the statutory duty under section 3A(l) imposes liability on KWS to compensate for destruction of crops by wildlife, actionable under the common law tort of negligence.

Reasoning

The court held that section 3A(l) imposes an unequivocal duty on KWS to render services necessary for the protection of agriculture against destruction by wildlife. Although the Act does not expressly provide for a remedy for breach, the court found that the duty is actionable under common law. The court relied on the principle that where a statute creates a duty but imposes no remedy, there is a presumption that an injured person has a right of action. The court also found that the respondent fell within the class of persons the statute was designed to protect, and that the loss suffered was a direct result of the breach.

02

Whether the rule in Rylands v Fletcher applies to impose liability on KWS for damage caused by wildlife.

Holding

No, the rule in Rylands v Fletcher is not applicable.

Reasoning

The court distinguished the case from Rylands v Fletcher on three grounds. First, the presence of wildlife on the land is not a 'non-natural use' of the land. Second, KWS did not bring the wild animals onto the land. Third, the escape must be from land in occupation or under the control of the defendant, but KWS was not in occupation or control of the land in question, which was owned and managed by the Narok County Government.

03

Whether damage caused by migrating wildlife is an 'act of God'.

Holding

No, damage caused by migrating wildlife is not an 'act of God'.

Reasoning

The court adopted the definition of 'act of God' as an event that is natural, unforeseeable, exclusively caused by nature, and not preventable by reasonable due care. The court found that the migration of wildlife in the region is an annual occurrence and therefore foreseeable. Similarly, drought in the region is reasonably foreseeable. Consequently, the appellant's claim of 'act of God' failed.

04

Whether the Government of Kenya, rather than KWS, ought to be liable for destruction by wildlife.

Holding

No, KWS is liable, not the Government.

Reasoning

The court held that although the Government would ideally be expected to have control of wildlife, factually it was KWS which had the duty of control by dint of section 3A of the Wildlife Act. The court cited the principle that the 'owner' of an animal for the purposes of tort liability is the person who has control of it or whose duty it is to have such control. Therefore, liability falls on KWS.

Legal principles established

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  • A statutory duty to protect agriculture from wildlife is actionable in negligence even without an express remedy in the Act.
  • The rule in Rylands v Fletcher does not apply to wildlife damage because wildlife is a natural presence, not a non-natural use of land.
  • Damage caused by annually migrating wildlife is foreseeable and therefore not an act of God.
  • A statutory obligation cannot be abdicated by agreement or delegation to another party.
  • Liability for wildlife damage falls on the entity with statutory control (KWS), not the national government generally.

Court orders

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  1. 1.The judgement of the Court of Appeal dated October 10, 2014 is hereby upheld.
  2. 2.For the avoidance of doubt, the judgement of the High Court delivered on July 27, 2011 awarding the respondent Kshs 31,500,000 is hereby affirmed.
  3. 3.Each party will bear its own costs.

The bench

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

majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
S. N. NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nakuru
Civil Appeal No 212 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010 (certified as a matter of general public importance by the Court of Appeal)

Relief refused

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Setting aside the decision of the Court of Appeal and substituting it with an order allowing the appeal and dismissing the respondent's case in the High Court

The Supreme Court found that the Court of Appeal correctly upheld the High Court's finding of liability against KWS.

Costs of the present appeal, the appeal in the Court of Appeal and the High Court case

The court ordered each party to bear its own costs.

Costs

Each party will bear its own 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.

We are persuaded that though there is no obligation expressly imposed on the appellant under the Wildlife Act to compensate for destruction of crops by wildlife, the statutory duty imposed under section 3A(l) is actionable under common law.
p. 12 Breach of statutory duty and common law remedy
It is our considered view that the principle in Rylands v Fletcher is not applicable in the case before us; firstly, because the presence of the wildlife on the land is not a non-natural use of the land in question
p. 14 Inapplicability of Rylands v Fletcher to wildlife damage
We agree with this finding, for the reason that migration of wildlife, especially within the land in question is an annual occurrence, hence foreseeable to any reasonable person.
p. 16 Wildlife migration not an act of God
where a statutory obligation is imposed on a person, such obligation cannot be abdicated by that person even if it is expressly permissible under the Constitution or statute to do so.
p. 13 Non-abdication of statutory duty

Key timeline

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2011-07-27
High Court awarded Kshs 31,500,000 to Rift Valley Agricultural Contractors Ltd for crops destroyed by wildlife from Maasai Mara.
2014-10-10
Court of Appeal upheld the High Court judgment against Kenya Wildlife Service.
Decision date not specified
Supreme Court dismissed KWS's appeal, affirming the lower courts' decisions.

Practical implications

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For lawyers

Plead alternative bases for liability

When suing KWS for wildlife damage, plead both breach of statutory duty under section 3A(1) and common law negligence. The court confirmed the duty is actionable even without an express remedy. Do not rely on Rylands v Fletcher; it will fail. Also, anticipate and rebut 'act of God' defences by showing the wildlife migration is predictable.

For businesses

Claim compensation for wildlife losses

If your farm or agricultural business suffers crop loss from wildlife, you can sue KWS directly. Document the damage and the annual migration patterns to defeat the 'act of God' defence. The judgment confirms KWS cannot avoid liability by arguing the government is responsible or that you signed away rights – the statutory duty is mandatory.

For individuals

Know your rights against KWS

You are entitled to compensation if wildlife destroys your crops, even though the Wildlife Act doesn't say so in plain words. KWS has a legal duty to protect your agriculture. If they fail, you can sue them for negligence. The court made clear that wildlife migration is foreseeable, so KWS cannot claim it was an unavoidable disaster.

Frequently asked questions

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Can I sue Kenya Wildlife Service for crop damage by wildlife in Kenya?+

Yes. The Supreme Court confirmed that KWS has a statutory duty to protect agriculture from wildlife. Even though the Wildlife Act doesn't explicitly say they must pay for losses, you can sue them for negligence if they breach that duty.

Is wildlife damage considered an act of God in Kenya?+

No. The court ruled that annual wildlife migration is foreseeable, not an act of God. KWS cannot avoid liability by claiming the damage was caused by an unforeseeable natural event.

Does the rule in Rylands v Fletcher apply to wildlife damage in Kenya?+

No. The Supreme Court said the rule does not apply because wildlife is a natural presence on land, not a 'non-natural use'. KWS also did not bring the animals onto the land or control the land from which they escaped.

Can KWS delegate its duty to protect crops from wildlife to someone else?+

No. The court held that a statutory obligation cannot be abdicated. Even if the Constitution or another law allows delegation, the express duty under section 3A(1) remains with KWS.

Later judgments citing this (7)

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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 Rift Valley Agricultural Contractors Limited", Case Analysis (2018). Petition 11 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/48/eng@2018-04-27

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