Republic v County Wildlife Compensation Committee, Meru & 2 others

STEPHEN GITARI M’KIUNGA ……………………8TH EX PARTE APPLICANT ADAM MUTHOMI ……………………..…………9TH EX PARTE APPLICANT FRIDAH GAKII ………………………………..….10TH EX PARTE APPLICANT JUDGMENT 1. Coming up for determination is the ex-parte applicant’s application dated 25th October 2025 which sought the following orders: a) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 1ST exparte applicant the amounts assessed and indicated in the agricultural report of Kshs.4,960,000 being compensation for crop damaged from an elephant attack. b) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 2nd exparte applicant the amounts assessed and indicated in the agricultural report of Kshs.2,758,380 being compensation for crop damaged from an elephant attack. c) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 3rd exparte applicant the amounts assessed and indicated in the agricultural report of Kshs.3,944,000 being compensation for crop damaged from an elephant attack. MERU JR.MISC E022 OF 2025 Page 2 of 15

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d) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 4th exparte applicant the amounts assessed and indicated in the agricultural report of Kshs.3,767,000 being compensation for crop damaged from an elephant attack. e) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 5th exparte applicant the amounts assessed and indicated in the agricultural report of Kshs.3,794,000 being compensation for crop damaged from an elephant attack. f) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 6th exparte applicant the amounts assessed and indicated in the agricultural report of Kshs.4,084,000 being compensation for crop damaged from an elephant attack. g) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 7th exparte applicant the amounts assessed and indicated in the agricultural report of Kshs.3,489,000 being compensation for crop damaged from an elephant attack. h) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 8th exparte applicant the amounts assessed and indicated in the agricultural report of Kshs.4,392,000 being compensation for crop damaged from an elephant attack. MERU JR.MISC E022 OF 2025 Page 3 of 15

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i) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 9th exparte applicant the amounts assessed and indicated in the agricultural report of Kshs. 5,000,000 being compensation for crop damaged from an elephant attack. j) THAT this Honourable Court do Order Mandamus against the respondents compelling the Respondents to pay the 10th exparte applicant the amounts assessed and indicated in the agricultural report of Kshs. 5,072,000 being compensation for crop damaged from an elephant attack. k) THAT the Respondents be ordered to comply by paying the exparte applicants the said statutory sum within 14 days from the date of service of the order of mandamus. l) THAT cost of the application be given to each and every applicant. 2. The application is propped by the grounds set out on the face of it and the affidavit of Thiangeta Robert sworn on behalf of himself and the other ex-parte applicants. 3. In summary, the applicants state that they are farmers in various parcels of land, the particulars of which are set out in the application. That on diverse dates, their farms were invaded by elephants which emerged from Meru National Park, causing damages to their crops. MERU JR.MISC E022 OF 2025 Page 4 of 15

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4. The applicants further claim that they reported the damages to the management of Meru National Park and filled the requisite forms attaching all the requisite documents. That they have been making follow ups on the compensation process by visiting the 2nd respondent’s offices, but they have never received their compensation. 5. The applicants further aver that they obtained leave to file the application. 6. The 2nd respondent filed a replying affidavit sworn by Ali Chimwaga, the 3nd respondent’s warden at Meru National Park. 7. It was averred that the ex-parte applicants initiated the compensation process and were issued with the requisite claim forms but they never submitted them back for processing. That consequently, the 1 st respondent was not called upon to deliberate on the claims. 8. It was further averred that the 2nd respondent is not under any duty to compensate the ex-parte applicants. That the application offends the doctrine of ripeness in that no awards were made by the 1st respondent. 9. It was further averred that the 2nd respondent is not the proper party to the proceedings as the orders sought can MERU JR.MISC E022 OF 2025 Page 5 of 15

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only lie against the Cabinet Secretary, Tourism and Wildlife, who is statutorily mandated to pay compensation under the Act. 10. The1st respondent did not file any response. 11. Parties filed submissions which I have duly considered and will where necessary refer to them. 12. An order of mandamus is a writ issued by this court to compel the performance of a statutory duty owed to an applicant. 13. 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 MERU JR.MISC E022 OF 2025 Page 6 of 15

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any person, corporation or inferior tribunal, 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 MERU JR.MISC E022 OF 2025 Page 7 of 15

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imposes a duty leaves discretion as to the mode of performing the duty in the hands of 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.” 14. 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. MERU JR.MISC E022 OF 2025 Page 8 of 15

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15. The Fair Administrative Action Act at section 11 provides for such orders as follows: Orders in proceedings for judicial review (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; 16. Section 106 (2) of the Wildlife Conservation and Management Act also provides for the order of mandamus 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— MERU JR.MISC E022 OF 2025 Page 9 of 15

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(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; (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. 17. From the provisions of the law cited above, 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 (2015) KEHC 7078 (KLR) where it was held as follows: “From the cited decisions, it is apparent that an order of mandamus will issue to compel the MERU JR.MISC E022 OF 2025 Page 10 of 15

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performance of a statutory duty owed to an applicant.” 18. 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 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.” MERU JR.MISC E022 OF 2025 Page 11 of 15

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19. From the material before the court, it is admitted that the exparte applicants duly lodged their claims with the 2 nd respondent. 20. The 2nd respondent claim that the forms were never returned but it is apparent that they were duly received by the 2 nd respondent, who is by law mandated to receive them and forward them to the 2nd respondent for deliberation. It does not make any sense for the ex parte applicants to have gone to report the incidents, obtain the forms and then sit on them as alleged. 21. Although the applicants seek orders for payment of compensation, it is not clear if the process laid down by the law has been completed. Their claims are based on the assessment of loss prepared by the Agricultural Officer. 22. The law is quite clear as what happens once the claimants report the damage and are issued with compensation claim forms. The task of the respondents 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 MERU JR.MISC E022 OF 2025 Conservation and Compensation Page 12 of 15

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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: 23. 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.’ 24. The 1st respondent claims that the forms were not returned to them for processing, a claim that I have found hard to believe. 25. In my view, and in agreement with the 2 nd respondent, it is the 1st respondent that is meant to deliberate on the claims and make recommendations for payment as set out under section 25(2) of the Act. It is also the mandate of the Cabinet Secretary, through the Committee to make payment under. 26. From the material before the court it is not clear if the deliberation has taken place and therefore the prayer for compensation is premature. Payment is based on the deliberation of the Committee (1st respondent) and not the assessment by the Agricultural Officer. Any party who feels MERU JR.MISC E022 OF 2025 Page 13 of 15

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aggrieved by an award made by the committee has the right to appeal under section 25(6) of the Act. 27. Looking at the matter, I am unable to grant the orders sought. 28. That said, the court notes that the claimants have acted as provided under the law and they cannot be faulted for the non-compliance by the respondents with the law. The respondents have a duty to act as required. 29. Therefore, the following orders shall issue: a) An order of mandamus is issued against the 2 nd respondent to forward the compensation claims to the 1st respondent as required by the law. b) To avoid confusion, the ex-parte applicants are to re-submit their respective forms to the 2 nd respondent in the next 14 days. c) An order of mandamus is hereby issued compelling the 1st respondent, upon receipt of the ex parte applicants’ forms to consider the claim under section 25(2) of the Act and Regulation 28 thereof. d) To avoid a situation where these orders are not complied with, a mention date shall be set for full compliance. MERU JR.MISC E022 OF 2025 Page 14 of 15

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Dated, signed and delivered at Meru this 3 rd day of July 2026. H. M. NYAGA JUDGE. MERU JR.MISC E022 OF 2025 Page 15 of 15

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