Republic v County Wildlife Conservation & Compensation Committee, Meru & 1 other

LINET KATHURE…………………………………..4TH APPLICANT DENIS MWITI APPLICANT MBAKA……………………….……..5TH EX-PARTE EX-PARTE AGNES KINYA……………………………………..6TH APPLICANT EX-PARTE ROSE KINYA………………………………….……7TH APPLICANT EX-PARTE KIMATHI………………………….…..8TH EX-PARTE VICTORIA MBITHE…………………………………9TH APPLICANT EX-PARTE PATRICK KIBURI……………………………………10TH APPLICANT EX-PARTE NICHOLAS APPLICANT RULING 1. For determination is the Chamber Summons dated 5/8/2025 pursuant to Order 53 Rule 1 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, seeking that; 1. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 1st exparte Applicant the MISC. JR NO. E019 OF 2025 2

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amounts assessed and indicated in the agricultural report of Kshs. 3,900,000/= being compensation for crop damaged from an elephant attack. 2. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 2nd exparte Applicant the amounts assessed and indicated in the Agricultural report of Kshs. 4,200,000/= being compensation for crop damaged from an elephant attack. 3. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 3rd exparte Applicant the amounts MISC. JR NO. E019 OF 2025 assessed and indicated in the 3

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Agricultural report of Kshs. 3,228,000/= being compensation for crop damaged from an elephant attack. 4. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 4th exparte Applicant the amounts assessed and indicated in the Agricultural report of Kshs. 3,706,000/= being compensation for crop damaged from an elephant attack. 5. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 5th exparte Applicant the amounts MISC. JR NO. E019 OF 2025 assessed and indicated in the 4

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Agricultural report of Kshs. 3,694,000/= being compensation for crop damaged from an elephant attack. 6. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 6th exparte Applicant the amounts assessed and indicated in the Agricultural report of Kshs. 4,400,000/= being compensation for crop damaged from an elephant attack. 7. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 7th exparte Applicant the amounts assessed and indicated in the Agricultural report of Kshs. 4,650,000/= being MISC. JR NO. E019 OF 2025 5

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compensation for crop damaged from an elephant attack. 8. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 8th exparte Applicant the amounts assessed and indicated in the Agricultural report of Kshs. 11,050,000/= being compensation for crop damaged from an elephant attack. 9. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 9th exparte Applicant the amounts assessed and indicated in the Agricultural report of Kshs. 4,995,000/= being MISC. JR NO. E019 OF 2025 6

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compensation for crop damaged from an elephant attack. 10. This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, Cabinet Secretary Ministry of Tourism and Wildlife, Kenya Wildlife Service compelling the Respondents to pay the 10th exparte Applicant the amounts assessed and indicated in the Agricultural report of Kshs. 4,850,000/= being compensation for crop damaged from an elephant attack. 11. The Respondents be ordered to comply by paying the exparte Applicant the said statutory sum within 14 days from the date of service of the order of mandamus. 12. MISC. JR NO. E019 OF 2025 Cost of the application be in the cause. 7

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2. The application is premised on the grounds on the face of it and supported by a Verifying Affidavit sworn by Faviano Nkonge M’Mwamba, the 1st exparte Applicant on even date. He averred that on diverse dates between 19/1/2023 and 4/3/2024, their respective parcels of land were invaded by elephants, as a result of the 3 rd Respondent’s negligence and breach of statutory duty under Section 7 of the Wildlife Conservation and Management Act. They reported the incidences to the 3rd Respondent’s offices at Meru National Park, Murera gate, and filled out the requisite claim forms, attaching all required supporting documents. They have on various occasions visited the 3 rd Respondent’s offices to follow up on the compensation process, to no avail, thus necessitating this application, and it is fair and equitable that the orders sought are granted. 3. The 1st Respondent filed grounds of opposition dated 27/4/2026 that; MISC. JR NO. E019 OF 2025 8

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1. The Application has not met the threshold for the grant of the orders sought. 2. Section 25 of the Wildlife Conservation and Management Act Cap. 376 establishes the 1 st Respondent as an exclusive statutory mechanism for the lodging, verification and recommendation of compensation claims arising from property damage caused by wildlife. 3. The Applicants have not followed the dispute resolution mechanism provided in the Wildlife Conservation and Management Act Cap. 376, and therefore the application seeking to compel the 1st Respondent to pay compensation for crop damage is legally untenable. 4. This Honorable Court, therefore, ought not to assume jurisdiction to hear and determine this matter under the Wildlife Conservation and Management Act (CAP 376) before the Statutory Dispute Resolution Mechanisms as provided under section 25 (6) of MISC. JR NO. E019 OF 2025 9

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the Act have been utilized by the ex-Parte Applicants. 5. 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. 6. The 1st Respondent has not refused to issue any recommendation on the claims in question as alleged by the Applicants, as no such claim forms were ever lodged with/ received by their offices. 7. There is no evidence before this Court to show that the 1st Respondent received the ex-Parte Applicants’ claims for verification and determination of sums payable, and therefore there is no basis in law for payment of any sums sought. 8. Orders of mandamus for payment of compensation under the Wildlife Conservation and Management Act (CAP 376) can only lie against the Cabinet Secretary for Tourism and Wildlife and not the 1st Respondent. MISC. JR NO. E019 OF 2025 10

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9. This Application is, therefore, 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. 10. The Application fails to demonstrate any specific breach of statutory duty or wrongdoing on the part of the 1st Respondent, and there is no evidence establishing neglect, refusal, or failure to perform any duty as required by the law. 4. The 2nd Respondent opposed the application vide a replying affidavit sworn by Asha Churo, its Senior Warden at Meru National Park on 10/4/2026. She faulted the ex parte Applicants for failing to return the compensation claim forms for deliberation by the 1st Respondent, and therefore, the application was premature. Counsel verily advised her that this court has no jurisdiction to compel the 2 nd Respondent to MISC. JR NO. E019 OF 2025 11

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make payment for claims that the 1 st Respondent has not determined. Counsel further advised her that the application offends the doctrine of ripeness in that there are no awards issued by the 1st Respondent for this Court to compel the 2nd Respondent for payment. In any event, the ex parte Applicants have not demonstrated how the 2 nd Respondent breached its statutory duty, and the 2 nd Respondent is not a proper party to the proceedings as the orders sought can only lie against the Cabinet Secretary for Tourism and Wildlife, who is statutorily mandated to pay the ex parte Applicants’ compensation. Submissions 5. The Ex-Parte Applicants, through the Firm of Vivian Loice Aketch & Co. Advocates, filed submissions dated 18/5/2026. Counsel contended that Judicial Review remedies issue where there is illegality, irrationality and procedural impropriety, and cited Pastoli v Kabale District Local Government Council & Others (2008) EA 300. Counsel MISC. JR NO. E019 OF 2025 12

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submitted that mandamus exists specifically to compel performance where a public body has failed or refused to discharge a statutory duty, and cited Kenya National Examinations Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others (1997) KECA 58 (KLR), Republic v Kenya Revenue Authority Ex Parte Yaya Towers Limited (2008) KEHC 489 (KLR), Republic v Commissioner of Customs Services Ex Parte Africa KLink International Limited (2012) KEHC 1274 (KLR), Republic v Principal Secretary Ministry of Internal Security Ex Parte Schon Noorani & Another (2018) 9433 (KLR), Vijay Morjaria v Nansingh Madhusingh Darbar & Another (2000) KECA 223 (KLR) and Republic v Attorney General & Another Ex Parte James Alfred Koroso (2013) KEHC 90 (KLR). Counsel argued that the Applicants indeed invoked the Statutory Mechanism of reporting the incidents, filling compensation forms and submitting supporting documents, and the argument on MISC. JR NO. E019 OF 2025 13

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failure to exhaust statutory mechanisms was thus misconceived. Counsel maintained that a public body cannot frustrate a statutory process and later rely on its own inaction to defeat Judicial intervention, and cited Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others (2015) eKLR and Republic v Independent Electoral and Boundaries Commission Ex Parte National Super Alliance (NASA) Kenya & 6 Others (2017) eKLR. 6. The Respondents did not file any submissions. Analysis and Determination 7. After critical consideration of the application, the responses thereto and the submissions on record together with the cited authorities, the issue for determination is whether the threshold for grant of leave to apply for Judicial Review order of mandamus has been met. MISC. JR NO. E019 OF 2025 14

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8. Order 53 of the Civil Procedure Rules provides that leave must mandatorily be sought before Judicial Review proceedings can be commenced. 9. The principles which guide our Courts when exercising jurisdiction to grant leave under Order 53 of the Civil Procedure Rules were settled in Republic v County Council of Kwale & Another; Kondo & 57 others (Ex parte) [1998] KEHC 2 (KLR) where Waki J (as he then was) enunciated that: “The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration…Leave may only be granted therefore if on the material available the MISC. JR NO. E019 OF 2025 15

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Court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.” 10. In Meixner & another v Attorney General (Civil Appeal 131 of 2005) [2005] KECA 292 (KLR) (16 September 2005) (Judgment), the Court of Appeal held that; “The leave of the Court was a prerequisite to making a substantive application for Judicial Review. The purpose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion. The Court of Appeal can only interfere with the discretion of the Judge denying the Appellants leave to apply for MISC. JR NO. E019 OF 2025 16

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Judicial Review on the firmly established principles stated in Mbogo v Shah [1968] EA 93.” 11. Evidently, the gist of the ex-parte Applicant’s claim is predicated under Section 25 of the Wildlife Conservation and Management Act and Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations 2017. 12. Without going into the merits of the substantive motion so as not to pre-empt the outcome thereof at this interlocutory stage, I find that the Ex-parte Applicants have demonstrated to the satisfaction of the Court that they have an arguable case warranting grant of leave. 13. The upshot from the foregoing is that the application is merited and its hereby ordered that:- MISC. JR NO. E019 OF 2025 17

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1) Leave be and is hereby granted to the Applicant to institute Judicial Review proceedings for an order of Mandamus. 2) The substantive Notice of Motion shall be filed and served within 30 days from the date hereof. 3) Upon filing, the Applicant shall serve the Respondents with the Notice of Motion together with all the documents relied upon. 4) The Respondents shall be at liberty to file and serve response within 14 days upon service. 5) The matter be mentioned for further directions on the hearing of the Substantive Motion before High Court No. 3 on 23rd September, 2026. 6) Costs of the application for leave shall abide the outcome of the Substantive Notice of Motion. DATED AND DELIVERED AT MERU THIS 16 TH DAY OF JULY, 2026. MISC. JR NO. E019 OF 2025 18

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S.M. GITHINJI –JUDGE 16/7/2026 In the presence of:Ms. Aketch for the Applicant Miss Wanjiru for 2nd Respondent (absent) Mr. Wafula for the 1st Respondent (absent) MISC. JR NO. E019 OF 2025 19

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