Republic v Kenya Wildlife Service & 2 others

statement and the verifying affidavit support the same. The Court is thus called upon to mandate the payment of this specific amount legally. 2. The Court did not see on record any reply in opposition to the Application. However, on directions to the Cavass application via Submissions, the parties have complied. 3. The Applicant Submissions: 4. The Applicant, a victim of an elephant attack, seeks recognition of their suffering and the urgent need for justice and compensation. 5. On 8th March 2020, the Applicant was viciously attacked and seriously injured by a lion as a result of the 1st Respondent's negligence and/or breach of Statutory duty as governed by the provisions of the Wildlife Conservation and Management Act, No. 47 of 2013 (hereinafter referred to as the Act). 6. The Ex Parte Applicant reported the incident to the 1st Respondent, whose Officers arrived, took the details, and promised to compensate them for the loss of their son. 7. Since the Applicants reported the incident in 2020, the Respondents have refused to convene a meeting to consider the claim as required under the Wildlife Conservation and Management Act, No. 47 of 2013, and Section 27 of the Wildlife Conservation and Management (Compensation) Regulations, 2017, which mandate that wildlife claims be considered and concluded within 60 days from reporting. The delay exceeds this statutory period significantly. 8. The Respondents have delayed action for over two years without any plausible explanation, despite their statutory Obligation to process claims within 60 days. This inaction warrants the Court's intervention to enforce compliance and ensure timely compensation. 9. The Ex-parte Applicant is apprehensive that unless this Court intervenes and compels the Respondents to make good their promise for compensation and or act on their decision for the same, the Respondents will continue to ignore their demands for compensation and thus corrode and erode the confidence of the Ex Parte Applicant and the general public in the efficiency of the administrative process in Kenya. 10. Section 7(a) provides that one of the functions of the 1st Respondent is to conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction; 11. It is the Applicant's submission that this function is broad and includes facilitating and handling the Claims process, which culminates in the compensation of the Claimants. 12. As had been expounded in the Supreme Court in Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No II of 2015 (2018) e KLR. 13. As part of the conservation and management function, the Respondent, who is referred to as "the Service" in the Act, has the statutory duty to set up and instruct County and Community Wildlife Committees to perform certain functions that are in line with its mandate. 14. Section 7, 18 and 19 of the Wildlife Conservation and Management Act, 2013 (the Act) respectively. Under Section 7 of the Act, the 1st Respondent is established to perform the following functions inter alia: “ 7 The function of the service shall be to: I. Conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1722/eng@2026-01-29 2

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II. Provide security for wildlife and visitors in national parks, wildlife conservation areas, and sanctuaries. III. Set up a County Wildlife Conservation Committee in respect of each County." 15. The legal capacity and mandate of the 1st Respondent with regard to the case at hand are clear from the above provisions. Amongst them is the establishment of the Community and County Wildlife Committees and the assignment of specific duties as per Section 19 (d) of the Act, which, in this case, includes verifying claims and making recommendations to the Cabinet Secretary for purposes of compensation. 16. The said County Committee, through the Community Wildlife Committee, is mandated with the responsibility to review and recommend payment on claims resulting from loss or damage caused by Section 19 of the Act, which provides as follows: ….…. Functions on Community Wildlife Conservation Committees 17. The functions of the Community Wildlife Conservation Committees shall be to: review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife, 18. It is submitted that the Applicants are not asking the Court to order the 1st Respondent to carry out an illegality. On matters of wildlife injury claims, the buck stops with the 1st Respondent herein, as was held in Republic vrs Kenya Wildlife Service & 3 Others; Musau (Interested Party) (Judicial Review Miscellaneous Application 54 of 2020) (2022) KEHC 102 (KLR) (7th February 2022) (Ruling). 19. The timelines within which wildlife claims should be considered and settled are 60 days from the date of reporting. The timelines are laid out under Section 27 of the Wildlife Conservation and Management (Compensation) Regulations, 2017. 20. Procedural fairness requires the Court to ensure claims are settled within the 60-day timeline, emphasizing the Court's role in upholding justice for the Applicant. 21. A delay of over 5 years in considering the Applicant's claim is not excusable in whatever circumstances, considering that the 1st Respondent has been collecting park fees, which are intended for the management and conservation of wildlife. 22. 1st Respondents' Submissions: - 23. Indeed, the statutory mandate to constitute and direct the Committee to sit and deliberate on claims arising from human wildlife conflict is vested with the Cabinet Secretary. The 1st Respondent is only a Secretary to the said Committee as per Section 18 of the Act. 24. Further, the 1st Respondent submits that it is not statutorily mandated to constitute and direct the County Wildlife Compensation Committee to sit and deliberate on claims arising from Human Wildlife Conflict. 25. In light of the provisions of Section 18 of Act, it is the 1st Respondent's submission that the orders compelling the 1st Respondent to sit and deliberate on the Exparte Applicant's claim is unwarranted and cannot issue as against the 1st Respondent, as the duty to constitute and direct the said Committee to sit and subsequently pay compensation is squarely vested with the Cabinet Secretary, Ministry of Tourism and Wildlife. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1722/eng@2026-01-29 3

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26. Reliance is made on the case of Republic v Kenya Vision 2030 Delivery Board & another Ex parte Eng Judah Abekah [2015] eKLR, where the Court cited with authority the case of Republic v The Commissioner of Lands and Another ex parte Kithinji Murugu M'agere, Nairobi High Court Misc. Application No. 395 of 2012, where G.V. Odunga, J, explored the circumstances under which an order of mandamus can issue as follows: “ 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. See Republic vs. Registrar of Societies & 5 Others ex parte Kenyatta & 6 Others Nairobi HCMCA No. 747 of 2006 [2008] 3 KLR (EP) 521." 27. Also, in Republic v Kenya Vision 2030 Delivery Board & another Ex parte Eng Judah Abekah [2015] eKLR (Supra), the Court stated: “ From the cited decisions, it is apparent that an order of mandamus will issue to compel the performance of a statutory duty owed to an applicant. Therefore, the fulcrum of an order of mandamus is that a statutory duty must be owed to an applicant and the public officer or public body, after being asked to perform the duty, has refused or failed to discharge that duty. There is no other adequate remedy." 28. Further, it is submitted that the orders for mandamus compelling the 1st Respondent to pay Kshs.3,000,000/= as compensation are premature, as Section 25 of the Act has laid down the procedure for compensation and who is responsible to pay. 29. In accordance with Section 25 (2) and (3) read together with Part V, Rule 27 (2) of Wildlife Conservation and Management (Compensation) Regulations 2017. Section 9 (1) and (2) of the Fair Administrative Actions Act provides as follows: 1. Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. 2. The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms, including internal mechanisms for appeal or review and all remedies available under any other written law, are first exhausted." 30. The 1st Respondent submissions is that pursuant to the provisions of section 25 (2) and (3) of the Act, Part V, Rule 27 (2) of Wildlife Conservation and Management (Compensation) Regulations 2017 and section 9 (1) and (2) of the Fair Administrative Actions Act, the Cabinet secretary, Ministry of Tourism and Wildlife is the proper party responsible to constitute the Committee and pay the Ex-Parte Applicant's claim and not the 1st Respondent herein. 31. Further, seeking an order for mandamus for the payment of Kshs.3,000,000/= prior to deliberation by the Committee is premature and against the doctrine of exhaustion. The Ex parte Applicant is required to exhaust the alternative mechanism provided by statute prior to seeking this order. This doctrine was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1722/eng@2026-01-29 4

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aptly set forth in Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others (2019) eKLR, where the Supreme Court held that: “ …..Even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals of any other quasijudicial authorities and organs to deal with the dispute as provided for in the relevant parent statute." 32. Additionally, in the case of NGO's Coordination Board -vs- E.G. & 4 Others; Katiba Institute (Amicus Curiae) (Petition No. 16 of 2019) [2023] KESC 17 (KLR), the Supreme Court observed that the exhaustion of administrative remedies aids in protecting administrative autonomy, preserving the separation of powers, gaining judicial economy, avoiding administrative inefficiency, and permitting courts to benefit from own administrative body's determination of facts and exercise of discretion. 33. The Court of Appeal, while addressing itself to the issue of exhaustion of statutory remedies in Peter Muturi Njuguna v Kenya Wildlife Service [2017] eKLR, stated: 34. "Nevertheless, and again we agree, there was compulsion to exhaust the procedure provided under the section before going to Court. To that extent, therefore, whereas the appellant was under no compulsion to make any claim, once he chose to do so, as he might, he was compelled to lodge it at the appointed forum, being the District Committee." “ …From the foregoing, it is abundantly clear to us that where there is a specific procedure as to the redress of grievances, the same ought to be strictly followed." 35. Issues Analysis And Determination 36. After going through the pleadings and parties' submissions, the issues emerging are: whether the Applicant has exhausted the procedure for redressing the grievances; and who ought to be compelled to facilitate the payment of the compensation awarded and costs. 37. Responsibility for compensation for injuries or death caused by wildlife is governed primarily by the Wildlife Conservation and Management Act, 2013 (as amended), and related regulations. 38. Who is responsible for paying compensation? The Government of Kenya, through funds allocated under the Wildlife Compensation Scheme, is ultimately responsible for paying compensation for injuries, death, and property damage caused by wild animals. The funds are managed through the State Department for Wildlife in the Ministry of Tourism and Wildlife. 39. The Cabinet Secretary responsible for wildlife (in the Ministry of Tourism & Wildlife) considers verified claims and approves payments. The Kenya Wildlife Service (KWS) plays a central administrative and operational role. 40. It helps process claims through the County Wildlife Conservation and Compensation Committees and has historically been linked to compensation obligations because it manages wildlife and coordinates reporting and verification. The Courts have reinforced that KWS, charged with managing parks and reserves, cannot evade liability when compensation is approved but payments are made from government-allocated compensation funds. 41. The County Wildlife Conservation and Compensation Committees, at the local level, receive and verify claims (from persons injured or next of kin if deceased), then recommend them to the Cabinet Secretary for payment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1722/eng@2026-01-29 5

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42. The Compensation Works (Procedure); Incident occurs: A person suffers injury or death caused by wildlife listed under the law. Claim submitted: The injured person (or heir/representative) files a claim with the County Wildlife Conservation and Compensation Committee. Verification: The Committee verifies and forwards the claim, along with recommendations, to the Cabinet Secretary. 43. The Payment: The Cabinet Secretary approves and authorizes compensation from the government's Wildlife Compensation Scheme. The Standard Compensation Amounts (Under the Current Law) As per the Wildlife Conservation and Management Act: i. Death due to wildlife: up to KES 5 million ii. Permanent disability: up to KES 3 million iii. Other injuries: up to KES 2 million (based on severity) 44. Important Notes: Compensation funds are budgeted by the national government and disbursed through the wildlife compensation mechanism; KWS itself does not pay from its operating budget but facilitates the process. 45. If a claimant is dissatisfied with the Committee's or service's award decision, they may appeal to the National Environment Tribunal and then to the Environment and Land Court. 46. In the instant case, the Applicant is not dissatisfied with the award and does not seek to impugn it, but seeks to recover the award as made; thus, the issue of exhaustion of procedure, as suggested by the respondent No 1 on the theory of exhaustion, does not obtain in the circumstances. 47. Regarding payment issues, Compensation funds are budgeted by the national government and disbursed through the wildlife compensation mechanism; KWS itself does not pay from its operating budget but facilitates the process. 48. Thus, the Court finds that it is the duty of the respondents to facilitate the process and payment of the award of Ksh 3,000,000 plus costs. 49. Final orders are that: i. The orders for mandamus to compel Respondents to facilitate the payments of Kshs.3,000,000/= as compensation caused by wildlife plus costs are hereby issued. DATED AND DELIVERED IN NAROK VIA MICROSOFT TEAMS THIS 29TH JANUARY, 2026 …………………………………. CHARLES KARIUKI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1722/eng@2026-01-29 6

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