Republic v Kenya Wildlife Service & 2 others

that the elephants were contained in their habitat. They lodged her the with the KWS through the County Wildlife Compensation Committee, Kwale County which is an office under the supervision of the KWS in November 2021 by filling and filing the necessary compensation form as provided for under section 25 of the Wildlife Conservation and Management Act. There has been no response to the claim ever since. 3. Alongside the chamber summons application, the ex-parte applicant filed a statutory statement dated 4/11/2024 reiterating the above facts, the legal foundation of the application, and the reliefs sought. 4. Leave was granted as prayed and in furtherance thereof the ex-parte applicants filed a Notice of Motion dated 23/12/2024 seeking an order of mandamus to compel the 1st respondent to pay the ex parte applicants the sum of KShs. 5 million as contemplated under section 25(3)(a) of the Wildlife Conservation and Management Act (Cap. 376) Laws of Kenya. The claim arises out of the death of Umazi Nguzo as a result of an attack by elephants on 13/9/2021. It is their contention that despite filing their claim on time, the 1st respondent has failed and/or ignored to make good the compensation. 5. The application is opposed by the 1st respondent KWS through a replying affidavit sworn by Derrick Karinga, its Legal Officer on 18/2/2025. 6. He deposes that the claim by the ex-parte applicants was heard and determined by the Kwale County Wildlife Compensation Committee on 7/12/2021 and by the Ministerial Wildlife Compensation Committee on 21/11/2022 whereby the ex-parte applicants were awarded KShs 5 million in compensation for their daughter's death. He has annexed to the replying affidavit the ex- parte applicants' status report. 7. He deposes further that the mandate to pay compensation for wildlife injuries is statutorily placed upon the Cabinet Secretary, Ministry of Tourism and Wildlife and not KWS. For that reason, it is KWS' contention that the application is fatally defective and ought to be dismissed with costs. 8. The Honourable Attorney General filed a notice of appointment dated 11/3/2025 to appear on behalf of the 2nd and 3rd respondents but did not file any response to the application. 9. The application was disposed of by way of written submissions filed by learned counsels for the ex-parte applicants and the 1st respondent. Learned counsel for the ex-parte applicant also filed authorities in support of the application. 10. In his submissions, learned counsel for the ex-parte applicant deposes that there is no evidence that the compensation committee ever made any recommendation for payment to the 2nd respondent who is mandated under the Act and compensation regulations to make payment within 30 days of being given the green light by the compensation committee. Learned counsel submits that the Wildlife Conservation and Management (Compensation) Regulations 2017 contemplate that a claim for bodily injury or death should be paid at least within 60 days of verifying the claim. In view of the non-action by the WMCC the only option available to the ex parte applicant to get compensation for the personal injury sustained is to compel the 1st respondent through a judicial review order of mandamus. Learned counsel has cited the case KWS vs Purity Kanini (suing as the next friend to EDWARD KOOME) Nyeri Civil Appeal No. 30 of 2020. 11. Learned counsel further submits that the mandate to pay the compensation is upon KWS, the 1st respondent as the Cabinet Secretary only pays the money on behalf of the KWS as was held by the Court of Appeal in the case of Kenya Wildlife Service vs Joseph Musyoki Kalonzo [2017] eKLR. 12. Learned counsel for the 1st respondent KWS submits that it is not disputed that the ex parte applicants made their report of the incident of death caused by an elephant attack on 13th September 2021. They https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19640/eng@2025-06-04 2

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properly lodged a claim for compensation with the 2nd Respondent through the County Wildlife Compensation Committee, who upon reviewing and considering the claim as required under section 19(1) of the Wildlife Conservation and Management Act, 2013 (WCMA), made a recommendation to the Cabinet Secretary, Ministry of Tourism and Wildlife under section 25(2) of the WCMA for compensation of the ex parte applicants in the amount of KShs. 5,000,000. The Cabinet Secretary considered the recommendation and approved the same. Learned counsel submits that to that extent, the 1st respondent has discharged its statutory mandate as regards the ex parte applicant's claim. Learned counsel therefore submits that the 1st respondent is not a proper party to the application herein and the reliefs sought against it should not be granted. 13. With respect to the prayer that the 1st respondent be compelled by an order of mandamus to pay the compensation, learned counsel submits that the same cannot issue as it is not the statutory mandate of KWS to pay such compensation, the mandate having been statutorily placed upon the 3rd respondent as the 1st respondent does not owe a statutory duty to pay compensation to the ex parte applicants. Learned counsel refers to sections 6 and 7 of the WCMA for the establishment and functions of the KWS respectively and submits that there is no duty placed upon the KWS to compensate or pay compensation on claims resulting from loss or damage caused by wildlife. He has cited the case of Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] eKLR to support the submission that the order of mandamus must command no more than the party against whom the application is made is legally bound to perform and further that a party in a judicial review seeking an order of mandamus must show the existence of a statutory duty conferred or invested by statute upon some person, body of persons or tribunal which such person, body of persons or tribunal has failed to perform. 14. He has also cited the case of Republic v County Government of Nairobi & 2 others Ex-Parte Kingpost Limited [2021] eKLR the court in declining to grant orders of mandamus against the 3rd Respondent (County Executive Member, Lands and Urban Planning) stated that the 3rd Respondent not being the accounting officer (who was statutorily bound to satisfy a court decree) had no role in the proceedings and had been improperly enjoined. The Court stated: “ Whereas the Ex-parte Applicant is correct that the 3rd Respondent is the line minister in matters land, it is apparent that he has no role in these proceedings. This is a case of misjoinder." 15. Learned counsel submits that it will be arbitrary and unlawful for this court to order that the 1st respondent should take up the role of the 2nd respondent, and compensate the ex-parte applicant, 16. I have considered the statutory statement filed alongside the chamber summons and which I trust was served after the order for leave was granted, the reliefs sought therein and the grounds in support thereof and the affidavit supporting the notice of motion and the submissions by learned counsels for the ex-parte applicant and the 1st respondent. 17. Learned counsel for the 1st respondent submits that the issue for determination is whether the 1st respondent is a proper party in these proceedings and if so, whether the orders sought against them are available to the ex-parte applicant. His answer is in the negative. Learned counsel for the ex-parte applicant did not pause any issue for the court's determination. 18. For the court, the issue for determination is whether an order of mandamus should issue from this court to compel the 1st respondent to pay the ex parte applicants the sum of KShs. 5 million for the death of their daughter as a result of an attack by elephants on 13/9/2021. The issue raised by the 1st respondent is subsumed within the issue framed by the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19640/eng@2025-06-04 3

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19. Compensation for personal injury or death or damage to property under the Act is provided for in section 25 as follows: 1. Where any person sufiers any bodily injury or is killed by any wildlife listed under the Third Schedule, the person injured, or in the case of a deceased person, the personal representative or successor or assign, may launch a claim to the County Wildlife Conservation and Compensation Committee within the jurisdiction established under this Act. 2. The County Wildlife Conservation and Compensation Committee established under section 18 shall verify a claim made under subsection (1) and upon verification, submit the claim to the Cabinet Secretary together with its recommendations thereon. 3. The Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate, pay compensation to the claimant as followsa. in the case of death, five million shillings; b. in the case of injury occasioning permanent disability, three million shillings; c. in the case of any other injury, a maximum of two million shillings, depending on the extent of injury. (4) . (5) . (6) A person who is dissatisfied with the award of compensation by either the County Wildlife Conservation and Compensation Committee or the Service may within thirty days after being notified of the decision and award, file an appeal to the National Environment Tribunal and on a second appeal to the Environment and Land Court. (7) . 20. In the Chamber Summons application for leave the ex-parte applicant had made two prayers, namely, orders of mandamus to issue against the 1st respondent (KWS) compelling it to avail the recommendation for claim compensation lodged via claim form No. 00854 of KWS OB No. 04/13/9/2021 and similar order of mandamus against the 2nd respondent (Cabinet Secretary for Tourism and Wildlife) compelling it to pay compensation to the ex parte applicants in the sum of Kenya shillings Five Million (KShs 5, 000, 000/=) as contemplated under section 25(3)(c) of the Wildlife Conservation and Management Act. However, in the statutory statement which is in consonance with the Notice of Motion filed after leave was granted, the prayer is for an order of mandamus to issue from this court to compel the 1st respondent to pay the ex parte applicant the sum of KShs. 5 million for the death of the daughter of the ex-parte applicants. Considering that in a judicial review application the main pleading is the statutory statement and since the 1st respondent has not raised any issue thereon, I find that there is no prejudice occasioned from that disparity. 21. The 1st respondent's response to the application is primarily based on the argument that the statutory mandate to pay compensation is not upon KWS but the Cabinet Secretary for Tourism and Wildlife. Learned counsel for the KWS has made very extensive submissions on the same. However, he never addressed the decision of the Court of Appeal in Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR) which was cited by learned counsel for the ex-parte applicant and which has https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19640/eng@2025-06-04 4

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since been applied by the High Court in several cases across the country where KWS has raised the same defence and it has been found to be without merit. The Court of Appeal addressed the issue as follows: “ Before we conclude, we would like to observe that the appellant has dwelt at length in its submission on an issue that was not raised before the High Court at all. This is the question as to whether it has the duty to pay compensation or not. We must admit we found this submission self- defeating. The appellant admits the duty to manage and conserve wildlife. That duty comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty. The law on this point as succinctly pronounced in Joseph Boru Ngera & Another vs Kenya Wildlife Service vs Rift Valley Agricultural Contractors Limited [2014] eKLR among others is still good law on this point. The cabinet secretary referred to in the Act pays the money on behalf of the appellant. 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. If there is any conflict of responsibilities or performance of duty between the CEO and the cabinet secretary, that is upon the two to sort out, but that should not be used to deny a party compensation duly owed to it. 22. This holding by the Court of Appeal settled the issue of who between the KWS and the Cabinet Secretary is responsible for making the compensation. For me, the Court of Appeal found that when it comes to the issue of compensation, KWS and the Cabinet Secretary play the same role. They are conjoined and will not be separated, so that a claim against the Cabinet Secretary is a claim against the KWS. The decision has been applied in the High Court decisions in Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte Applicant) [2024] KEHC 8086 (KLR), I am bound by the said decision and I do not know whether learned counsel wants this court to depart from that holding which is not possible. I will therefore not belabour that point any more other than to find that the response by the 1st respondent to the application is without merit. 23. Both parties are agreed that the ex-parte applicant properly lodged a claim for compensation with the 2nd Respondent through the Kwale County Wildlife Compensation Committee sometime in 2021. The ex-parte applicant appears not to have been informed that the Kwale CWCC who upon reviewing and considering the claim as required under section 19(1) of the Wildlife Conservation and Management Act, 2013 (WCMA), made a recommendation to the Cabinet Secretary, Ministry of Tourism and Wildlife under section 25(2) of the WCMA for compensation of the ex parte Applicant in the sum of KShs. 5,000,000/=. The Cabinet Secretary considered the recommendation and approved the same. Apparently, the Kwale CWCC never made any communication to the ex-parte applicant that her claim had been considered and approved for payment. That is what caused her to file the present motion. 24. Section 106(2)(c) of the Wildlife Conservation and Management Act, provides that any person who has reason to believe that the provisions of this Act have been, are being, or are about to be violated, may petition the High Court for the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act. It is the ex-parte applicant's case that the respondents have failed to act on her claim. From the 1st respondent's replying affidavit, the ex- parte applicant's claim has since been approved for payment. What has not been done is to make the payment. Without communication from the respondents to the ex-parte applicants of what became of their claim since she launched it in 2021 and even after the approval for payment in November 2022, I am satisfied that they were right in filing the present application seeking an order of mandamus against the respondents as provided for under section 106 of the Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19640/eng@2025-06-04 5

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25. Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations provides the timelines for consideration and payment of claims as follows: 1. On receipt of a claim for bodily injury or death, the Committee shall within thirty days of such receipt verify the claim and submit it to the Cabinet Secretary together with its recommendations. 2. Upon receipt of a claim for bodily injury or death, the Cabinet Secretary shall consider the recommendation of the Committee and make payments within thirty days of receipt of the claim. 26. The statutory timeline to make payment is therefore within thirty days of the Cabinet Secretary receiving the claim. The 1st respondent deposed that the claim by the ex-parte applicant was heard and determined by the Kwale County Wildlife Compensation Committee on 7/12/2021 and by the Ministerial Wildlife Compensation Committee on 21/11/2022 whereby the ex-parte applicants were awarded KShs 5 million in compensation for their daughter's death Certainly that is beyond thirty days within which the payment for compensation ought to have been made. It follows that the respondents are in violation of the Act with respect to the timelines for payment of the claim and the ex-parte applicant is therefore properly before this court seeking the order of mandamus to compel the respondents to pay her the compensation. 27. Consequently, I find that the application by the ex-parte applicant has merit and the same is allowed in terms that the 1st respondent is hereby compelled by an order of Mandamus to pay KSh.5,000,000/ = to the ex-parte applicants as compensation for the death of their daughter Umazi Nguzo as a result of an attack by elephant. 28. The costs of this application are awarded to the ex-parte applicants. 29. Orders accordingly. RULING DELIVERED, DATED AND SIGNED IN OPEN COURT ON THE VIRTUAL PLATFROM TEAMS THIS 4TH DAY OF JUNE 2025. ANDAYI W.F. JUDGE In the presence of: Mwendwa for the Ex-parte applicant Nyaga for the 1st Respondent N/A for the 2nd and 3rd Respondents. Ummu - Court Assistant DATE: 2025-06-05 14:00:17 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19640/eng@2025-06-04 6

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