Republic v Kenya Wildlife Service & 2 others

2. c). An order of Mandamus be issued to compel the respondents and specifically 1st respondent to pay the exparte applicant the sum of Kshs. 2,000,000/= recommended, verified by the 2nd respondent and approved by the 3rd respondent as compensation for the injuries sustained by the ex-parte applicant in compliance with Regulations 27(1) (2). d). That the 1st respondent be and is hereby ordered comply with by paying the ex-parte applicant the said approved sum within 14 days from the date of issuance of the order of mandamus. e). Costs of and incidental to the application be provided for. f). Such further and/or other reliefs that this Honourable court may deem just and expedient to grant. The Notice of Motion was filed pursuant to leave granted on 17th December, 2024 The Applicant’s case 3. It is the applicant’s case that she was attacked by an Elephant on 11/9/2023 while herding her goats at Attan Area within Isiolo County and he sustained injuries; that she reported the incident to the Chief at Attan location and to Isiolo police station; that she was given a compensation form by the 1st respondent which she filled and return to them which he filed and returned to it to them. 4. He further states that pursuant to Regulation 27 (1) of the Wildlife Conservation and Management Compensation Regulations of 2017, the 2nd respondent is obligated to verify and recommend compensation for the applicant for the sum of Kshs. 2,000,000/= within 30 days of the submission of claim form. 5. That the 1st Respondent has been reluctant, and is uncooperative in compelling the 2nd respondent to do the verification and recommendation as aforesaid. That several visits to the office of the 1st respondent has not borne any fruits. He therefore seeks for an order of mandamus directed at the respondents and particularly the 1st respondent to verify the applicant’s claim and effect payment of ksh. 2,000,000. The compensation form ,medical records and police abstract are attached to the verifying Affidavit. The 1st Respondent’s case 6. It is the respondent’s case that it should not be compelled to do that which it has not been mandated to do.; that it is the Isiolo County wildlife conservation committee ( The committee) that is mandated to review and make recommendation for such claims; that the said committee is yet to consider the Applicant’s claim; that the responsibility to compensate the claimants belongs to the cabinet secretary in charge of Tourism and wildlife as represented by the 3rd respondent herein.; that the 1st respondent simply acts as the intermediary between the cabinet; that it is merely a secretary to the said committee and that it received the Applicant’s claim in its capacity as such. 7. The other two respondents did not file any response. Appellant’s submissions 8. It is the appellant submissions that it is the mandate of the 1st respondent to set up a County Wildlife Conservation Committee in respect to each county. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10820/eng@2025-07-17 2

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9. On the relationship between the 1st , 2nd and 3rd respondents, it is pointed out that the 2nd respondent is the Agent of the 1st respondent and therefore the court should compel the 1st respondent who is the principal, to order the 2nd respondent to verify his claim and make appropriate recommendations. 10. On whether the 1st respondent is a necessary party to the suit, the applicant has relied on the case of K W S -Vs- Joseph Musyoki Kalonzo (2017) eKLR where it was held interalia that the “Neither the Court nor the parties should concern themselves with the internal arrangements of the appellant as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.” Respondent’s submission 11. It is the 1st respondent submissions that it has got no statutory mandate to direct the 2nd respondent to sit and deliberate on claims arising from Human-wildlife conflict; That the mandate belongs to the Cabinet Secretary who for the time is in charge of wildlife; that the Cabinet secretary is the appointing authority of the majority members of the 2nd respondent; that it merely offers secretarial services to the 2nd respondent in terms of section 18 of the wildlife management and conservation Act( The Act) 12. It is further submitted that as per Section 18(3) of the Act ,it is the Cabinet Secretary who can direct the 2nd respondent to verify claims. It is submitted that in any event, it is the Cabinet Secretary who compensates the claimant, following recommendation of the 2nd respondent. 13. The 1st respondent further submits that the Applicant has not demonstrated that the 1st respondent has a statutory obligation to compensate him; That an order of mandamus can only issue where the applicant establishes a statutory duty on the part of the respondent. In this regard the decision in the case of Republic – Vrs – Kenya Vision 2030 Delivery Board & Another Exparte. Eng. Judah Abekah (2015) 7078 ( KLR) 14. On the plea of payment of Kshs. 2,000,000/= as compensation, it is submitted that the clam is premature as the applicant is yet to exhaust the procedural steps under Section 25 of the Act and Regulation 27(2); that consequently, the demand violates the exhaustion principle and in breach of the section 9 (1) (2) of the Fair Administrative Actions Act. Thus, it is argued, the applicant must first exhaust the available remedies provided under statute before resorting to the court. The case of Peter Muturi Njuguna - Vs- Kenya Wildlife Service (2017) KECA 42 ( KLR) has been relied on , in this regard. 15. The parties have relied on other various Authorities which I have considered. Analysis and determination** 16. I have considered the pleadings as well as the rival submissions of the parties.In my view the following issues arise for determination 1. Whether the respondent have statutory obligation to review and make appropriate recommendations. 2. Whether an order for compensation should be made. 3. What appropriate orders should issue. Respondent’s statutory obligations to the applicant 17. The facts and circumstances giving rise to the applicant’s claim are not in dispute. The applicant was attacked by a Elephant on 11/9/2023 at Attana Area within Isiolo County. He lodged a claim for https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10820/eng@2025-07-17 3

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compensation and submitted the claim form to the 1st respondent. The claim form together with Treatment notes ,a police abstract and P3 form were also submitted. The first respondent admits that it received the claim form.The process of compensation is set out under section 25 of the Act. It begins with the claimant submitting the claim documents to the committee. The committee is supposed to consider the claim within 30 days of receipt of documents and make recommendation to the Cabinet Secretary in charge of Tourism and wildlife. The Cabinet Secretary is supposed to make payments within 30 days of receiving the advice from the committee. 18. It is the applicant’s case that despite having dully submitted his claim , the 2nd respondent has not verified or reviewed it so as to facilitate payment. That, it is the role of the 1st respondent to direct the 2nd respondent to initiate the verification process. On the other hand the 1st respondent insists that it has no mandate to direct the 2nd respondent to do its work. 19. It is true that under Section 25 of the Act, the work of verifying the claims and making recommendation to the cabinet secretary , who for the time being responsible for matters relating to the wildlife, is the County compensation committee established under section 18 of the Act. 20. The imperative question is, whether the Compensation Committee established under Section 18, is a body independent of the 1st respondent. In other words, does the 2nd respondent have a personality of his own aside that of the 1st Respondent? 21. I have looked at Section 7 of the Act. It sets out the functions of the 1st Respondent. One of those functions is to set up County Wildlife Conservation Committee in respect of each county. ( see Section 7 ( c ).) Under Section 2 of the Act “County Wildlife Conservation Committee “means “the compensation committee established under section 18 of this Act”. Section 18 establishes the Community Wildlife Conservation Committee and although the word “compensation” is missing in Section 18 , I believe this was a drafting error, but it certainly refers to the same committee. 22. It is the therefore evident that the committee established under section 18 is a creature of the 1st respondent, established pursuant to the provisions of section 7(c ).Further pursuant to regulation 15 of the 2017, the 1st respondent is responsible for the declaration of vacancy in any of the committees established under section 18, either at the first establishment of a particular committee of a particular county or whenever a vacancy arises. 23. It is therefore evident that the compensation committee is a creature of the 1st Respondent. It is its Agent bestowed with the function of vetting the compensation claims and making recommendation to the minister. The 1st respondent cannot set up an Agent then purports to keep its hands off from the performance or liability of the same Agent. Iam therefore in agreement with the Applicant’s submissions that the 2nd respondent is an Agent of the 1st respondent. In my view , suing the committee is inconsequential as it does not have a legal personality of its own. 24. In regard to the relationship between the 1st respondent , the committee and the Cabinet Secretary, I associate myself with the findings of the court in Joseph Boru & Ano vs KWS &Ano( 2014) e KLR as cited in Kenya Wildlife service vs Joseph Musyoki( supra) that courts should not be concerned with the internal arrangements between the respondents, as the business of wildlife whether the benefits derived therefrom or the liabilities attended to it, is primarily the work of the 1st Respondent. It is my finding therefore that in as far as the applicant claim has not been acted on , the 1st respondent had failed in its statutory duty. Prayer one of the Application is therefore warranted. 25. I have considered prayer 2 of the application. The applicant seeks that the 1st respondent be compelled to report to this court on compliance of the court’s orders. I need to point out that Regulation 29 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10820/eng@2025-07-17 4

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of the Regulations set out the timelines for compliance by the committee and the cabinet secretary. Consequently, once the 1st respondent complies with the order to verify the claims , then process should take a life of its own. There is no need therefore for this court to issue what appears to me to be a structural interdict. In any case, in the event of default the usual remedies are available to the Applicant. whether an order for compensation for kshs. 2,000, 000 should be made. 26. In accordance with the Act any payment to be made is subject to an assessment by the Compensation Committee. This court therefore does not have jurisdiction to compel payment of a particular amount. Further, the amount payable, in the event of an injury is not cast on stone. Section 25(3) provides:The Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate pay compensation”. The amount that the applicant is asking the court to order has not been determined by the Committee therefore. 27. Further, Kshs. 2,000,000 is the maximum amount payable. Section 25 (3) (a) and (b) sets out the amount payable in respect of death and permanent disability respectively, while 25 (3) (c) sets payments in respect of “other “injuries. Subsection (3) (c) states in the case of any other injures “a maximum of two million shillings, depending on the extent of the injury”. Thus, there is therefore no Guarantee that the applicant would be entitled to the Kshs. 2,000,000/= he is asking. The work of verifying the claim brought under the Act is the work of the respondents not the courts. 28. Further, ordering the Respondent to pay the amount proposed by the Appellant , defeats the purpose of the prayer (a). This court cannot direct the respondents to carry out its statutory duty and at the same time, proceed to usurp their work by making an order of a specific amount to be paid. 29. Nevertheless, under the Act, the work of setting payment is not the work of the Court. To this extent, I agree with the 1st respondent that this prayer is premature. 30. The 1st respondent has brought up the issue of exhaustion principle, which principle is also embodied in Section 9 (2) of the Fair Administration Actions Act. It is argued that the applicant ought to exhaust the alternative mechanism under the statute. Although the Respondent’s counsel has not made specific reference to the relevant sections of the Act, he Must have been referring to the procedure prescribed for under section 25(1) to (6) of the Act. 31. However, a reading of the entire section 25 shows that it presupposes that the respondents would have set in motion the process of compensation. Section 25 (6) of the Act provides “a person who is dissatisfied with award on compensation by cited County Wildlife Conservation Committee of the service may within thirty days after being notified of the decision and award, file an appeal to the National Environment Tribunal and or second Appeal to the Environment and Land Court”. 32. Thus it is evident that the “alternative remedy” the 1st respondent is referring to only applies once the award has been made. In this case the respondent are yet to commence the process. The applicant therefore is entitled to seek for an order of Mandamus to compel the respondents to set in motion the process of compensation. 33. In view of the all the aforegoing, I hereby proceed to make orders as follows: a). An order of mandamus is hereby issued directing the Respondents to verify and make a determination of the ex-parte applicant’s claim lodged on 12.4.24 within 30 days of this order and thereafter, make payment or convey the decision arrived at, to the exparte applicant, within 30 days following the said decision. b). The costs of the suit is awarded to the applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10820/eng@2025-07-17 5

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DATED, SIGNED AND DELIVERED AT ISIOLO THIS 17TH JULY DAY OF JULY, 2025. SOPHIE CHIRCHIR JUDGE. In the presence of: Roba Katelo- Court Assistant. Mr. Amule for the Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10820/eng@2025-07-17 6

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