Mwahui Kamanza Mwayela v State Law Office & 1 other

4. The statutory statement is accompanied by a verifying affidavit of the ex-parte applicant Mwahui Kamanza Mwayela sworn on 27th June 2025. He depose in the verifying affidavit that on 28th June 2023, he was attacked by elephants that had left their natural habitat and he sustained head injuries and multiple rib fractures. That he filed a claim compensation form issued on 29th January 2024 but since that time, the 1st respondent has failed to compensate him for the attack and injuries sustained. He therefore wants this court to compel the 1st respondent to submit the claim and recommendation it made to the 2nd respondent, if any, for compensation and secondly that the 1st respondent ought to be compelled to compensate him. He deposes further that the 1st respondent has deliberately failed to make recommendation, if at all, to the 2nd respondent in order to deny or frustrate the compensation due to me. He has annexed to the verifying affidavit various documents to support his claim namely; a copy of his P3 form, a copy of the claim compensation form, a copy of his medical discharge abstract, Chief's letter and copy of his national identification card as well as a letter of demand for compensation from his advocates to the 1st respondent. 5. Leave was granted on 1st July 2025 at the ex-parte stage as prayed for in the chamber summons. In furtherance thereof the ex-parte applicant filed a Notice of Motion application dated 2nd July 2025 seeking the following orders: a. an order of mandamus against the 1st respondent compelling it to pay compensation to the ex parte applicant in the sum of Kenya shillings Three Million (Ksh. 3, 000, 000/-) as contemplated under section 25(3)(b) of the Wildlife Conservation and Management Act. b. Costs of the suit to be borne by the 1st respondent. c. Interest be allowed on order (a) above at 12% from 28th June 2023 when the cause of action arose until payment in full. 6. The application is opposed by the 1st respondent KWS through a replying affidavit sworn by Derrick Karinga, its Legal Officer on 23rd September 2025. 7. He deposes that the claim does not lie against the KWS because KWS is not mandated by law to satisfy compensation claims by persons injured by wildlife. 8. He deposes further that the mandate to settle compensation for wildlife injuries is statutorily, under section 25(3) of the Wildlife Conservation and Management Act, placed upon the Cabinet Secretary, Ministry of Tourism and Wildlife, the 2nd respondent herein upon recommendation by the 2nd respondent and not KWS. That the payment of compensation by the Cabinet Secretary as contemplated by section 25(3) of the WCMA. For that reason, it is the 2nd respondent's contention that the application is fatally defective and ought to be dismissed with costs. 9. He deposes further that the ex-parte applicant's claim has been delayed processing due to the inaction of the ex-parte applicant who failed to take the compensation form to the relevant OCS at Vigurugani police station or the Kinango Sub-County police commander for completion and return to the Kwale County Wildlife Conservation Committee. 10. However, the 2nd respondent took up the matter, followed up on the issue and now the hard copy of the compensation form is currently in the office of the Warden, Kinango Outpost, awaiting completion by the County Warden in readiness for presentation during the next County Compensation Meeting. 11. The 1st respondent deposes that if the ex parte applicant had returned the duly filled compensation form to the 1st respondent, then the same would have been deliberated by the Kwale County Wildlife Compensation Committee and an award made. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4512/eng@2026-01-27 2

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12. The ex-parte applicant filed further affidavit sworn on 26th September 2025 in response to the replying affidavit by the KWS. The ex-parte applicant deposes that he duly lodged his compensation claim form with KWS on 29th January 2024 after he had partially recovered from the injuries inflicted during the elephant attack. 13. The 2nd and 3rd respondents did not file a response to the application. I note from the application and the reliefs sought that they are not affected by that application and their inclusion is not explained. 14. The application was disposed of by way of written submissions filed by learned counsels for the exparte applicant and the 1st respondent. Learned counsel for the ex-parte applicant also filed authorities in support of the submissions. 15. The ex-parte applicant submits the following issues for determination: 16. a. Whether the ex parte applicant duly lodged the compensation claim form of serial No. 00915 in January 2024. b. Whether the orders of mandamus sought should be issued against the 1st respondent or the 2nd respondent. c. Whether the suit herein should be allowed as prayed for in the substantive notice of motion dated 2nd July 2025. On its part, the 1st respondent submits the issues for determination to be: a. Whether the compensation claim form submitted by the ex-parte applicant was incomplete and the effect of such incompleteness. b. Whether the 1st respondent is a proper party in these proceedings and if so, whether the orders sought against it are available to the ex-parte applicant. 17. The 1st issue, of whether the compensation claim form was duly lodged with the 1st respondent and if so whether it was properly filled, is common to both parties and this court will take it first. 18. In his submissions, learned counsel for the ex-parte applicant calls upon the court to note that these judicial review proceedings hinge squarely on the compensation claim form. 19. Learned counsel submits that if there were errors in the form submitted by the ex-parte applicant, the 1st respondent should have communicated with the ex parte applicant to fill the missing remarks if any. Learned counsel submits further that the ex parte applicant was categorical in his further affidavit that he was a stranger to the remarks of the OCS dated 20th September 2025 in the compensation claim form annexed to the 1st respondent's replying affidavit. Further that the remarks by the OCS confirm that indeed the accident subject of this suit occurred. More importantly, at Part II of the claim form an officer of KWS indeed clearly verified the claim on 28th June 2023. The 1st respondent has therefore all along been aware of this compensation claim form having been duly lodged with it. Further that the 1st respondent did not produce a separate claim compensation form, and in fact the form annexed to the 1st respondent's replying affidavit is a total replica of the form the ex parte applicant annexed to his verifying affidavit. According to learned counsel it would appear that once the ex parte applicant submitted his claim form in January 2024, it was left idle to gather dust at the 1st respondent's office without being acted upon and it is only until the filing of these proceedings that the 1st respondent retrieved the claim form and started looking into it. 20. Learned counsel submits that the law is settled under regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations 2017 that once a claim is lodged with the 1st respondent, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4512/eng@2026-01-27 3

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the compensation committee is to deliberate on it within 30 days and forward the recommendation for payment to the 2nd respondent who should make the payment within another 30 days. Indeed, the law contemplates that payment of compensation should be done within 60 days of lodging the claim under the WCMA and that was not the case in this matter. Learned counsel has referred to Regulation 27 which provides that: 21. 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. Further learned counsel has referred this court to its decision in Republic vs State law office and Kenya Wildlife Service and another, Mlongo Tsuma (ex parte applicant), Kwale High court Judicial Review Misc Application No. E006 of 2024 where the court while considering the provisions of Regulation 27 of the Compensation Regulations 2017 observed that:“ The statutory timeline to make payment is therefore within thirty days of the Cabinet Secretary receiving the claim. The 1st respondent did not state the date that the Cabinet Secretary approved the ex-parte applicant's claim for payment. But certainly, it must be beyond thirty days by the time the application was filed in court. 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." 22. Learned counsel therefore maintains that the ex parte applicant duly lodged his claim with the 1st respondent in January 2024. 23. Learned counsel for the 1st respondent on his part submits that in his the ex-parte applicant acknowledges in his replying affidavit, that indeed the form submitted by himself in January 2024 was incomplete having not been filled and/or verified by the Officer Commanding Station (OCS) as required. Further that it is not the duty of the 1st respondent to compel the applicant to give all the information required for his claim to be processed. The duty of the 1st respondent is to verify a claim that has been reported then upon such verification, to forward the said form to the Compensation Committee for deliberations. Upon reaching the Compensation Committee, where the 1st respondent appears as a secretary, any compensation claims with incomplete documentations including incomplete forms are deferred until such compliance is met by the complainant. 24. According to learned counsel this explains why the claim by the ex-parte applicant has never been deliberated upon. That the 1st respondent went out of its way to assist the ex-parte applicant in having the form completed in the section that was not filled in the spirit of furthering its duty of service to humanity and wildlife, a gesture that the ex-parte applicant ought to appreciate instead of criticizing it. 25. That owing to the foregoing circumstances, the said Compensation Claim form had never been submitted to the Compensation Committee by the 1st respondent or the ex-parte applicant until compliance was met through the help of the 1st respondent and the form was filled by the OCS on 20th September 2025. 26. Learned counsel submits that, the laxity was on the part of the ex-parte applicant, failing to provide a duly filled form complete with all the requisite information, thus limiting further actions of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4512/eng@2026-01-27 4

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1st respondent, and therefore the same should not be visited upon the 1st respondent but should be entirely blamed on the ex-parte applicant. That the purpose of Judicial Review is to provide a remedy where there is maladministration. 27. I do not find the charge by the ex-parte applicant that the 1st respondent has conveniently evaded rebutting his contention that his claim was lodged with them to be true. In fact, the 1st respondent has conceded that indeed the form was lodged with them. However, its position is clear that the form had not been fully completed as the part for the OCS/Sub-County Police Commander had not been filled. They have referred to the form annexed to the ex-parte applicant's verifying affidavit which clearly is not completed in the section for "comments from O.C.S/Sub-County Commander (Officer in charge). It took them time trying to get the ex-parte applicant to have the form fully completed and returned to their offices at the Kinango Outpost but his promises to do so were not forthcoming until 20th September 2025 when this case was already in court. The ex-parte applicant contends that he was never contacted by officers of the 1st respondent as alleged in the replying affidavit. However, he does not respond to the fact that when he submitted his form initially, the same one attached to his verifying affidavit, it had not been duly completed as indicated above. The 1st respondent has now provided the duly completed form in its replying affidavit showing that the OCS Vigurugani police station completed his part on 20th September 2025 when this matter was already in court. 28. There are internal inconsistencies and contradictions in these submissions that need pointing out. The -.ex-parte applicant submits that he is a total stranger to the entry by the OCS in the compensation claim form annexed to the 1st respondent's replying affidavit. That simply means that those remarks were not contained in the form he submitted to the 1st respondent. Indeed, that is the position because, looking at the two forms, that from the ex-parte applicant is not filled in the space for the OSC/SubCounty police commander while that annexed to the replying affidavit is duly filled in that space. In one breathe, the ex-parte applicant denies knowledge of those entries, and in another breathe he submits that the contents in that section are in his favour. So, would he wish to disassociate himself with the contents in that section of the form or to adopt them as being in his favour? The bottom line is that whichever position he takes; it reinforces the position by the 1st respondent that the form submitted by the ex-parte applicant was incomplete as that section was not filled. 29. I think the ex-parte applicant should bite the bullet and concede that it submitted an incomplete claim compensation form to the 1st respondent's offices. Perhaps, this escaped his attention. The consequence of failing to complete that section was that the 1st respondent could as well have rejected the claim because there must have been good reason for the Legislature to find that it was important to be included in the form. The 1st respondent could not act on an incomplete form and so had to look for the ex-parte applicant and ensure that the missing information was made available. The form has now been placed before the County Wildlife Compensation Committee and is awaiting a decision. The case of Mlongo Tsuma referred to by the ex-parte applicant is therefore not applicable in this case because in that case, the compensation form had been duly completed and presented but no word was forthcoming from KWS on why the compensation was not forthcoming. In that case, KWS had conceded that the ex-parte applicant had properly lodged a claim for compensation it 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 applicant in the amount of Kshs. 3,000,000. The Cabinet Secretary considered the recommendation and approved the same, but there was no payment forthcoming thus the order of mandamus that was issued by this court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4512/eng@2026-01-27 5

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30. That is not the case herein where the ex-parte applicant's issue could not even be taken up for consideration in the first place due to his own error of omission to have his claim compensation form fully filled. 31. The parameters of judicial review orders of mandamus were explained by the Court of Appeal in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) "An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done..." 32. In this case, I find that whereas the 1st respondent is under a legal duty to consider the form submitted to it by the ex-parte applicant, it can only do so if the form is properly completed. This court cannot, however, by way of an order of mandamus compel the 1st respondent to make available the recommendation for claim for compensation lodged via claim form No. 00915 of KWS OB No. 03/28/06/2023 and to pay compensation to the ex parte applicant in the sum of Kenya shillings Three Million (KShs 3, 000, 000/=), when in the first place, there was no proper claim before it. The 1st respondent has deposed and I believe it that, it did inform the ex-parte applicant of the incompleteness of his form and had him have it fully completed in the section for the OCS/County Police Commander that had been left unfilled. This Court can only compel the 1st respondent to consider the same and make a decision one way or the other where the form was properly completed. 33. For that reason alone, I find that the application has no merit and as a result the same is dismissed. That issue alone disposes of the entire application. It follows that there will be no need to consider the rest of the issues raised by the parties. 34. However, I am compelled to comment on the second issue raised by the 1st respondent on whether the 1st respondent can be compelled by an order of mandamus to pay the compensation where the same is established. It has been the refrain by the 1st respondent in these types of claims that an order of mandamus cannot issue against it as it is does not have the statutory mandate to pay such compensation. That the mandate having been statutorily placed upon the 3rd respondent, the Cabinet Secretary for Tourism and Wildlife, KWS does not owe a statutory duty to pay compensation to the ex parte applicant. In the Mlongo Tsuma case referred to above and several others, this court determined the issues thus: “ However, he (learned counsel for KWS) 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 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4512/eng@2026-01-27 6

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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.." 35. I therefore reiterate that 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. 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). 36. 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. 37. Consequently, I find that the application by the ex-parte applicant has not met the threshold for grant of an order of mandamus as prayed. The applicant has to wait for his application to go through the processes established under the WCMA since the 1st respondent says that it is now in the pipeline. 38. The application is dismissed with costs to the 1st respondent 39. Orders accordingly. RULING DELIVERED, DATED AND SIGNED IN OPEN COURT ON THE VIRTUAL PLATFROM TEAMS THIS 27TH DAY OF JANUARY 2026. 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 SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4512/eng@2026-01-27 7

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