Republic v Kenya Wildlife Service & 2 others

tort of negligence. Under section 25(6), the Act has provided for mechanisms through which claims for compensation such as the present one should be channeled and the ex-parte applicant had already invoked the statutory route to compensation. Under the said section, the Environment and Land Court is specifically given appellate jurisdiction in such cases. 3. Learned counsel for the ex-parte applicant filed submissions but learned counsels for the respondents did not. 4. Learned counsel submits that the proceedings herein are brought under sections 4, 7, 8, and 9 of the Fair Administrative Action Act ("FAA"). That section 9(1) of the FAA contemplates the filing of judicial review at the High Court. He submits further that the provisions of section 25(6) of the Wildlife Conservation and Management Act on the appellate jurisdiction of the Environment and Land Court come into operation only where compensation has been proposed by the relevant County Wildlife Conservation and Compensation Committee or the Service. Therefore, according to learned counsel, in this case, section 25(6) of the Act does not apply because there was no award of compensation made to the ex parte applicant to form a basis for her appealing that award. 5. Section 25(6) of the Wildlife Conservation and Management Act provides that: “ 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." 6. Learned counsel submits further that section 106(2)(c) of the Wildlife Conservation and Management Act, contemplates that a person may apply to the High Court for a writ of mandamus. The section 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. 7. Learned counsel has cited the case of Kenya Wildlife Service v Awuor (Civil Appeal E013 of 2022) [2023] KEHC 3721 (KLR) where the Court held that: “ The respondent may have opted to pursue her claim for compensation in negligence for damages for personal injury in the civil court as an alternative to the statutory compensation mechanism. Without deciding, I would consider that the respondent may also have pursed judicial review remedy in the High Court, if so advised by her advocates, for the award of the full award of compensation prescribed under the Act. The respondent may also, as she may be advised by her legal advisors, file an application for extension of time to pursue the appeal process set out in section 25 (6) of the Act." 8. Learned counsel also relies on the case of Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR where the Court of Appeal addressed the issue of jurisdiction of the High Court to hear matters arising under the Wildlife Conservation and Management Act thus: “ Does the High Court have jurisdiction to deal with matters arising from the Wildlife Conservation and Management Act? Has Section 25 of the Act ousted the jurisdiction of the Court? (after citing the provisions of section 25(6) of the Act, the Court of Appeal went on) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19659/eng@2025-05-23 2

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In our view, even from a literal interpretation, this provision does not oust the jurisdiction of the High Court to hear any matters raised under that Act. If the Act meant to remove those matters from the realm of the High Court or the other courts, then it would have expressly stated so." 9. I have considered the submissions herein by learned counsel and several other cases in which the HC has taken up jurisdiction in this type of cases such as (i). Republic v Kenya Wildlife Service & 2 others; Oguna (Suing as the Legal Representative of the Estate of Peter Ouma Ogola) (Exparte Applicant) [2025] KEHC 2019 (KLR); (ii). Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte Applicant) [2024] KEHC 8086 (KLR); (iii). Republic v Kenya Wildlife Service & 2 others; Ouma (Exparte Applicant) [2025] KEHC 5759 (KLR). I note that the issue of jurisdiction specific to the High Court and the Environment and Land court handling the cases of compensation for injuries or death caused to a human being by a wild animal under the Act has not been addressed in any of these. Even in the case cited by learned counsel of Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR) decided by the Court of Appeal, the issue was not specifically on the jurisdiction between the High Court and the Environment and Land Court on the issue of compensation for injuries or death caused to a human being and by a wild animal. 10. It is however clear that the Act gives both the High Court and the ELC jurisdiction in certain specific instances depending on whether one is filing an appeal from an award of compensation or seeking an order of mandamus against an officer or a person who has failed to perform a duty imposed by or under the Act if the person has reason to believe that the provisions of the Act have been, are being, or are about to be violated. In the former, the position would be that the ELC has the specific jurisdiction while in the later, it is the High Court that has jurisdiction. Perhaps, it could also be that that in terms of the later both courts have co-ordinate and concurrent jurisdiction. I am inclined to think so because under section 13(2) of the Environment and Land Court Act (Cap. 8D) the ELC has jurisdiction to deal with disputes concerning the environment, land use and title to land while section 13(5)(b), (c), and (d) gives it authority to issue prerogative orders, award damages and compensation. I do not doubt that wildlife management and conservation would properly fall under rubric of environmental management over which the ELC is conferred with jurisdiction. 11. The issue of concurrent and coordinate jurisdiction was addressed by the court in the case of Patrick Musimba v. National Land Commission & 4 Others [2015] eKLR with the holding that where there is concurrent and coordinate jurisdiction in both the specialized court and the High Court either court may determine the Petition or case before it. The court concluded after analyzing the case of United States International University [USIU] & 3 others v Attorney General & 13 others [2016] KEELRC 1725 (KLR) as well as the case of Daniel Mugendi v Kenyatta University [2013] eKLR and two foreign decisions of SIM v Robinson [1892] 12 LR 665 and The Spiliada [1987] AC 460, that where two courts have jurisdiction over a matter jurisdiction is deemed concurrent and coordinate. In such a case either court may exercise jurisdiction but a determination as to the more appropriate forum ought to be made by considering which of the two is more suitable in the interest of the parties and for the ends of justice. 12. At this time, I will go by the provisions of section 106 of the Act which confers this court with jurisdiction to issue orders of mandamus where appropriate and the decision of the Court of Appeal as held in the case Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR that the jurisdiction of the High Court to deal with this issue has not been specifically ousted by section 25 of the Act. Perhaps at a later date and in a proper case, the issue may need to be canvassed and considered fully and finally determined. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19659/eng@2025-05-23 3

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13. This court therefore will take up the application for judicial review and proceed to consider and make a determination thereon. 14. Orders accordingly. RULING DELIVERED, DATED AND SIGNED IN OPEN COURT ON THE VIRTUAL PLATFORM TEAMS THIS 23RD DAY OF MAY 2025. HON. JUSTICE 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. Johnson - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19659/eng@2025-05-23 4

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