Republic v Kenya Wildlife Service & 1 other

contemplated under section 25(4) &(5) of the Wildlife Conservation and Management Act No. 47. b) That the costs of this application be borne by the 1 st respondent. 2. The application is supported by the affidavit sworn by the exparte applicant on even date. She avers that leave has been obtained to file the application. 3. It is the ex-parte applicant’s case that on 24 th June 2016, rogue elephants managed by the 1st respondent raided her farm at Rwanyange, Imenti North Sub-County and wantonly ate, trampled uprooted and damaged her crops of pawpaws, maize, mango trees and blue gum trees causing her economic loss. That she reported the incident to the 1 st respondent’s office on 27th June 2016 and filled the requisite claim form attaching the necessary documentation. 4. The ex-parte applicant avers that he has made follow up visits but the 1st respondent has neglected, failed, refused or ignored to finalize the compensation which was assessed by the Agricultural Officer at Kshs. 2,157,750/=. That she thus seeks the orders sought. MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 2 of 16

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5. The 1st respondent opposed the application vide a replying affidavit sworn by Gedion Mutai, advocate. It is averred that the Applicant seeks orders of mandamus for the payment of Kshs. 2,157,750/= which amount was not awarded by the County Compensation Committee and therefore the orders as sought cannot lie. That the Application seeks to compel the 1st Respondent to do that which is not within the 1st Respondent’s mandate. That it is not the duty of the 1st Respondent and is not within its statutory mandate to compensate the Applicant’s claim. That the Meru County Wildlife Conservation Committee as established under section 18 of the Wildlife Conservation and Management Act, 2013 (WCMA) is the body mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under sections 19(1) and 25(2) of the WCMA. That the 1st Respondent is only the secretary to the County Wildlife Conservation Committee established under Section 18 of the Wildlife Conservation and Management Act, 2013. That the 1st Respondent has duly performed their statutory duty as secretary fully as MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 3 of 16

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regards the Applicant’s claim for compensation by receiving the Claimant’s claim form. That the Meru county Wildlife Conservation Committee considered the Applicant’s claim for compensation as per Section 19(1) and 25(2) of the Wildlife Conservation and Management Act, 2013 and the claimant was awarded Kshs. 194,197/=. That the claim was forwarded to the Ministry of Tourism and Wildlife for payment as per Section (25(2) of the WMCA. That the responsibility to compensate for human wildlife conflict matters lies with the Cabinet Secretary Tourism and Wildlife under the Ministry of Tourism and Wildlife. That the 1st Respondent is the go between of the Applicant and the Cabinet Secretary Tourism and Wildlife. 6. The 2nd and 3rd respondents opposed the application through ground of opposition dated 6th October 2025. The following grounds have been set out: a) That the application has not met the threshold for the grant of the orders sought. b) That the application is misdirected since the 2 nd and 3rd respondents have neither MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 failed nor refused to Page 4 of 16

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deliberate, verify and/or recommend the compensation of the applicant since the strict procedures stipulated in the Wildlife Conservation and Management Act, 2013 and the Wildlife Conservation and Management (Compensation) Regulations, 2017 are ongoing. c) That it is trite law that for a court to grant an order for Mandamus, the applicant must prove that there is an express refusal, or an implied refusal through unreasonable delay by the public body. The 2 nd and 3rd respondents have not refused and/or delayed in complying with the law in the instant matter. d) That the application fails to demonstrate any specific breach of statutory duty or wrongdoing on the part of the 2nd and 3rd respondents and there is no evidence establishing neglect, refusal or failure to perform any duty as required by the law. e) That the 2nd and 3rd respondents have not abdicated their statutory roles as alleged by the applicant and no evidence has been adduced to support those wild allegations. MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 5 of 16

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f) That this application is misadvised as it seeks to circumvent the prescribed legal and administrative mechanisms expressly established by the law to handle allegations of crop damage by wildlife and the resultant compensation if the claim is proved as required by the law. g) That the application is misconceived and full of untrue allegations which are not supported by any evidence and therefore should be dismissed forthwith. 7. Parties filed their respective submissions, which I shall not rehash, but will refer to them where necessary. 8. Having considered the application, the responses thereto and the parties’ submissions, I find that the following issues arise for determination: a. The nature of an order of mandamus, b. Whether the application is properly directed at the 1 st respondent. c. Whether the application offends the determine of ripeness, MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 6 of 16

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d. Whether the ex-parte applicant is entitled to the orders sought. 9. An order of mandamus is a writ issued by this court to compel the performance of a statutory duty owed to an applicant. In the case of Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No. 266 of 1996 the purpose and scope of an order of mandamus was described as follows: “The next issue we must deal with is this: What is the scope and efficacy of an order of mandamus? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says:“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 or inferior tribunal, Page 7 of 16

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requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.” At paragraph 90 headed “the mandate” it is stated: “The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 8 of 16

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the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.” What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.” 10. The order of mandamus is issued pursuant to the provisions of Article 165(6) which states as follows: The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasijudicial function, but not over a superior court. 11. The Fair Administrative Action Act at section 11 provides as follows: Orders in proceedings for judicial review MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 9 of 16

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(1) In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order– …. (f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right; 12. Section 106 (2) of the Wildlife Conservation and Management Act provides as follows: 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— (a) a declaration that the provisions of this Act are being, have been, or are about to be contravened; (b) an injunction restraining any specified person from carrying out the contravention; MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 10 of 16

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(c)the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act; or any remedy at law or equity for preventing or enforcing the provisions of this Act. 13. From the foregoing, provisions of the law, it is abundantly clear that this court has the requisite jurisdiction, where appropriate, to issue a writ of mandamus compelling any person or body to undertake an act that it is by law required to so undertake. This has been confirmed in Republic vs Kenya Vision 2030 Delivery Board (supra) where it was held as follows: “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.” 14. For the court to issue an order of mandamus, it has to be satisfied that the person to whom the writ is directed has a statutory duty to undertake certain action and has failed or MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 11 of 16

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neglected to undertake such action. In the same case, it was held as follows: “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 and there is no other adequate remedy. In matters involving exercise of judgement and discretion the public officer or public agency can only be directed to take action; it cannot directed in the manner or the particular way the discretion is to be exercised.” 15. From the application as drawn, the order sought is directed at the 1st respondent only. One cannot tell if this was an oversight or not. 16. The 1st respondent’s case is that it is not the body mandated to compensate the ex parte applicant. That its duty is to act as a secretary to the Committee. MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 12 of 16

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17. From a look at the documents presented by the ex-parte applicant, it is clear that the compensation claim forms were duly issued and were filled as required by the relevant parties, including the agents of the 1 st respondent. 18. The task of the 1st respondent is as directed under Section 25(4)as read with 25 (5) of the Act which provide as follows: (4)“Any person who suffers loss or damage to crops, livestock or other property from wildlife specified in the Seventh Schedule hereof and subject to the rules made by the Cabinet Secretary, may submit a claim to the County Wildlife Conservation and Compensation Committee who shall verify the claim and make recommendations as appropriate and submit it to the Service for due consideration”. (5) The County Wildlife Conservation and Compensation Committee shall review the claim and award and pay a compensation valued at the ruling market rates: MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 13 of 16

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19. The Regulations under the Act provide the procedure to be followed. Regulation 28 provides as follows; ‘On receipt of a claim for loss or damage to crops, livestock or other property, the Committee shall within thirty days of such receipt verify the claim and make recommendations.’ 20. It is thus clear that the onus of paying the ex parte applicant does not lie with the 1st respondent. 21. The 1st respondent’s position is that it carried out its duty and the Committee subsequently assessed and awarded the ex parte applicant a sum of Kshs 194,197/= which amount awaits payments by the 2nd Respondent, through the Ministry of Tourism and Wildlife. 22. Given the manner in which the application is drawn, the orders sought cannot be implemented against the 1 st respondent. It did its part under the law. It was also the duty of the Committee to assess the claim and make a recommendation, which it did. The payment is due from the Minister, the 2nd respondent. MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 14 of 16

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23. In my view, and in agreement with the 1st respondent, the court cannot issue orders as against it. 24. Having stated the above and noting that the other respondents were duly represented, this court cannot shut its eyes on the fact that it is the 2 nd respondent who is liable to pay the assessed award. It would not be in the interest of justice to shut out the ex parte applicant from the seat of justice. It is noted that the claim arose in 2016. Ten (10) year down the line, no payment has been made. The arguments by the 2nd and respondents that they are processing the claim cannot hold. 25. Although the ex parte applicant sought an order for payment of Ksh. 2,157,750/= this Court is only empowered to compel the 2nd respondent to pay the assessed amount. If the ex parte applicant was dissatisfied by the award then she had the option to appeal as set out under section 25(6) of the Act, that is to the National Environment Tribunal and on a second appeal to the Environment and Land Court. MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 15 of 16

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26. Therefore, the following orders shall issue as against the 2 nd respondent; a) Orders of mandamus are issued against the 2nd respondent to pay the ex parte applicant Ksh194,197/=. b) Costs to the ex parte applicant to be borne by the 2nd respondent. Dated, Signed & Delivered at Meru this 8th day of June, 2026. H.M. NYAGA JUDGE MERU. JUDICIAL REVIEW APPLICATION E017 OF 2025 Page 16 of 16

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