High Court 11205 of 2026

are provided for under section 7 of the Act. 6. The 2nd respondent is the Cabinet Secretary for the Ministry of Tourism and Wildlife, mandated to pay compensation under section 25(3) of the Wildlife Conservation and Management Act upon recommendation from the County Wildlife Conservation Compensation Committee. 7. The 3rd respondent is sued as the legal advisor to the government and in particular the legal counsel to the 2nd respondent in the context of this matter. 8. The facts in brief are that the ex parte applicant is wife and legal representative of the late Jefa Nyanje Nyoro who was attacked by elephants and succumbed to the injuries on 1st February 2023. The ex-parte applicant is therefore before this court seeking orders to compel the 1st respondent to pay compensation for the death of Jefa Nyanje Nyoro. 9. The ex-parte applicant sets out the following statutory scheme as as the basis of the application: a. Section 4(1) of the Fair Administrative Action Act (Cap. 7L) Laws of Kenya, (FAAA) which provides that every person has a right to administrative action that is inter alia expeditious and efficient. An administrative action is defined under section 2 of the FAAA to include (a) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or (b) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. b. Where a person is affected by an administrative action, he or she has a right to apply for appeal or review under section 6(1) (this should be 5(2), (3) and section 7 of the FAAA before a court of competent jurisdiction. c. Section 7 (a), (b), (c) and (g) of the Wildlife Conservation and Management Act which mandates the 1st respondent (KWS) to conserve national parks, provide security for wildlife and wildlife conservation areas, set up the County Wildlife Conservation Compensation Committee as well as advice the 2nd respondent on matters pertaining to wildlife policy, strategy and legislation. d. Section 25(1), (2), (3)(a) of the Wildlife Conservation and Management Act, under which the 1st respondent through the County Wildlife Conservation Compensation Committee is obligated to receive a compensation claim, verify the claim and forward the claim with recommendations to the 2nd respondent for compensation payment, which in the case of death is capped under the Act at KShs, 5,000,000/-. e. Regulation 12(1) of the Wildlife Conservation and Management (Compensation) Regulations 2017 which provides for the eligibility of persons to raise claims for compensation under the Act. f. Regulation 27 of the Regulations rehashes the emphasis for compensation wherein the County Wildlife Conservation Compensation Committee is required to verify the claim within 30 days and submit it to the 2nd respondent who should make payment within 30 days. 2/11

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10. The ex-parte applicant avers that based on the timelines provided for under the law as set out above, the cause of action in this matter arose on 13th September 2021 (sic), it is now more than 3 years of non-compliance of Regulation 27 of the 2017 Compensation Regulations by the 1st and 2nd respondent. 11. For those reasons the ex-parte applicant prays that the court issues the orders prayed for above. 12. Leave was granted on 2nd July 2025 with directions that the main Notice of Motion be filed within 21 days and served upon the respondents and for the respondents to file their responses within 14 days of service. The main Notice of Motion was filed as directed and it is what is under consideration herein. 13. The grounds in support of the motion are contained as set out in the Statutory Statement dated 1st July 2025 and the verifying affidavit and further affidavit of Nzara Mtezo Beja sworn on 1st July 2025 and 25th September 2025 are as follows: a. The ex parte applicant is the wife and the legal representative of the late Jefa Nyanje Beja who was attacked by elephants on 1st February 2023 and died instantly as a result thereof. b. The ex parte applicant blames the 1st respondent for its negligence in failing to ensure that the elephants were contained in their habitats. Upon the death of the deceased, the 1st respondent gave the ex-parte applicant KShs 30, 000/= for the burial arrangements. c. On 20th March 2023, the ex-parte applicant filed a compensation claim form and lodged the same with the 1st respondent as required in law. d. That since lodging the claim, the 1st and 2nd respondents have not paid out the compensation to the ex-parte applicant as provided for under the WCMA. 14. The ex-parte applicant has annexed to her verifying affidavit the following documents to support her claim herein namely a copy of the Death certificate, a copy of chief’s letter dated 19th March 2024 and a copy of her national identification card, a copy of the compensation form, a copy of receipt by the 1st respondent releasing KShs. 30,000/- to the ex-parte applicant for burial permit of the deceased and a copy of his national identity card, a copy of the certificate of grant of letters of administration Ad litem and a copy of the demand letter. 15. In the Statutory Statement, the order of mandamus sought is indicated to be directed at the 1st respondent, the Kenya Wildlife Service (KWS) compelling it to pay compensation to the ex parte applicant in the sum of Kenya shillings Five Million (KShs. 5,000,000/=) as contemplated under section 25(3)(a) of the Wildlife Conservation and Management Act. The application is supported by the verifying affidavit of Nzara Mtezo Beja sworn on 1st July 2025 in which she has expounded on the grounds in support of the motion. 16. In response to the application, the 1st respondent KWS filed a replying affidavit sworn by Derrick Karinga, its Legal Officer on 23rd September 2025. 17. He deposes that it is not the duty of the 1st Respondent under section 7 of the Wildlife Conservation and Management Act, 2013 and it is not within the Respondent's statutory 3/11

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mandate to compensate the ex parte applicant. 18. He deposes that Kwale County Wildlife Conservation Committee is established under section 18 of the Wildlife Conservation and Management Act, (Cap. 376) Laws of Kenya (WCMA). It is 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 and that the 1st respondent KWS is only the secretary to the County Wildlife Conservation Committee as provided for under section 18(2) of the Act. 19. He acknowledges that the ex parte applicant reported to the Kwale County Wildlife Conservation Committee at Kisite/Mpunguti Lunga Lunga Outpost Station, an incident of alleged attack by elephants on 1st February 2023 causing death. She was issued with a claim compensation form from the Ministry of Tourism and Wildlife which she filled and returned to the CWCC for processing and forwarding to the 1st Respondent (KWS). She thereby lodged the claim for compensation under section 25(1) of the WCMA. 20. He deposes further that the ex parte applicant’s claim for compensation, was considered and deliberated upon by the Kwale County Wildlife Conservation and Compensation Committee (the compensation committee) pursuant to section 19(a) of the WCMA on 16th July 2025 which recommended payment of KShs. 5,000,000. He has annexed to the affidavit a copy of the extract of the minutes of the committee. 21. He deposes further that upon being deliberated over by the CWCCC, the matter is now before the 2nd respondent’s Ministerial Wildlife Conservation Committee for purposes of processing the payment as provided for in Section 24(2) of the WCMA. 22. The legal officer deposes further that section 25(3) of the Wildlife Conservation and Management Act places the role of payment of compensation squarely on the Cabinet Secretary, Ministry of Tourism and Wildlife. That in effect, the ex parte applicant is asking this court to be the 2nd respondent, perform the 2nd respondent's functions under section 19 of the WCMA by reviewing the claim and recommending the same for compensation and further for this court to take over the function of the Cabinet Secretary under section 25(3) of the Act by considering recommendations and approving the same and thereby effectively asking this court to ignore the strict provisions of section 25(3) of the WCMA and in total contravention of this provision, compel the 1st Respondent to pay compensation. 23. Further that it is not the 1st respondent's duty to compensate the ex-parte applicant and by the ex-parte applicant moving this court to compel the 1st respondent to make such payments, the ex parte applicant is asking the court to act beyond its powers. Consequently, such reliefs if granted, would amount to an illegality. 24. Further that the ex-parte applicant is asking the court to impose upon the 1st respondent a duty which has not only not been statutorily bestowed upon the 1st respondent but is in fact a preserve of another entity, the Cabinet Secretary, Ministry of Tourism and Wildlife. That therefore, what the ex-parte applicant is asking of the court is tantamount to amendment of legislation through imposition of a duty. 4/11

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25. For those reasons, it is the contention by KWS that the application is not merited and ought to be dismissed with costs. 26. The application was disposed of by way of written submissions filed by learned counsels for the ex-parte applicants and the 1st respondent. The 2nd and 3rd respondents did not respondent to the application at all. Learned counsels for both parties also filed authorities in support of their respective submissions. 27. The ex-parte applicant raised the following issues for determination by this court: a. Whether the orders of mandamus sought should be issued against the 1st respondent or the 2nd respondent. b. Whether the suit herein should be allowed as prayed for in the substantive notice of motion dated 2nd July 2025. 28. Learned counsel for the 1st respondent on his part submits the following issues for the court’s determination: a. Whether the 1st respondent is a proper party in these proceedings and if so, whether the orders sought against them are available to the ex-parte Applicant b. Whether the 1st respondent is a government agent subject to the provisions of the Government Proceedings Act. c. Whether the 1st respondent holds an account holding funds defrayed for the purpose of payment of compensation. 29. Learned counsel for the ex-parte applicant submits that the mandate to pay the compensation is upon KWS, the 1st respondent as the Cabinet Secretary only pays the money on behalf of the KWS as was held by the Court of Appeal in the case of Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR). To support his submissions further, learned counsel also cited this court’s decision in the case of Kwale High Court Judicial Review Misc. Application No. E009 of 2024; Nguzo Mriphe Mashudi & Mlongo Tsuma Mrisa (suing as legal representatives of the estate of Umazi Nguzo (deceased) v State Law Office and Kenya Wildlife Service and another where this court made reference to the case of Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] KESC 48 (KLR). 30. Learned counsel submits further that even if it was to be assumed as deposed in the replying affidavit that the 1st respondent through the Kwale WCCC made recommendation for payment of compensation to the ex-parte applicant on 16th July 2025, no evidence was placed before the court to suggest that the recommendation was forwarded to the 2nd respondent. I will dispose of that contention immediately that this being a deposition under oath and more particularly made by an officer of the court, the Legal Officer of the KWS, the 1st respondent should not only be believed on its word but will be held accountable to it. I therefore have no doubt that what is expressed in the replying affidavit is the correct position. 31. Learned counsel for the 1st respondent KWS submits that it is not disputed that the ex 5/11

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parte applicant duly made her report of the incident of death caused by an elephant attack upon the deceased to the Kwale WCCC as required by law. She therefore properly lodged a claim for compensation with the Respondents through the Kwale County Wildlife Conservation Compensation Committee, 32. With respect to the prayer that the 1st respondent be compelled by an order of mandamus to pay the compensation, learned counsel submits that the same cannot issue as, the 1st respondent is not a proper party to the proceedings herein. Learned counsel, submits that it is not the statutory mandate of KWS to pay such compensation, the mandate having been statutorily placed upon the 2nd respondent and as such the 1st respondent does not owe a statutory duty to pay compensation to the ex-parte applicant. Learned counsel refers to sections 6 and 7 of the WCMA on the establishment and functions of the KWS respectively and submits that there is no duty placed upon the KWS to compensate or pay compensation on claims resulting from loss or damage caused by wildlife. He has cited the case of Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] KEHC 7078 (KLR) to support the submission that the order of mandamus must command no more than the party against whom the application is made is legally bound to perform and further that 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. 33. He has also cited the case of Republic v County Government of Nairobi & 2 others ExParte Kingpost Limited [2021] KEELC 1084 (KLR) the court in declining to grant orders of mandamus against the 3rd Respondent (County Executive Member, Lands and Urban Planning) stated that the 3rd Respondent not being the accounting officer (who was statutorily bound to satisfy a court decree) had no role in the proceedings and had been improperly enjoined. The Court stated: “Whereas the Ex-parte Applicant is correct that the 3rd Respondent is the line minister in matters land, it is apparent that he has no role in these proceedings. This is a case of misjoinder.” 34. Learned counsel submits further that the Cabinet Secretary who has the mandate to pay the compensation considered the recommendations and approved the claim for compensation. That what is left is the payment of compensation provided for under section 25(3) of the WCMA which duty falls on the Cabinet Secretary. 35. Learned counsel submits that it will be arbitrary and unlawful for this court to order that the 1st respondent should take up the role of the 2nd respondent, and compensate the exparte applicants, 36. The 1st respondent submits further that it is a statutorily created government agency whose mandate revolves around wildlife conservation and management which is a public function. That in discharging its functions as outlined under the WCMA the Ministry of 6/11

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Tourism and Wildlife plays an oversight function over it. It therefore relies on the government through the ministry especially in matters to do with compensation for claims resulting from human–wildlife conflicts. That the service is dependent on the government for funding in order to undertake their public function of wildlife conservation. 37. Learned counsel cites the case of Five Star Agencies Limited v National Land Commission; Kenya National Highways Authority (Intended Respondent); National Bank of Kenya (Garnishee) [2023] KEELC 16631 (KLR) for the position that the 1st respondent is subject to Section 21 of the Government Proceedings Act in relation to execution proceedings. I think this submission is not well taken at this point because the considerations in execution proceedings against the government or its agency are different from the reliefs sought herein. When the time of execution comes, if at all, that decision could be relevant. 38. The 1st respondent submits that the law provides that the issue of payment of compensation claims is the preserve of the government through the Ministry of Tourism and Wildlife and therefore the ex-parte applicant’s application cannot and should not be allowed. 39. I have considered the statutory statement filed alongside the chamber summons and the reliefs sought therein and the grounds in support thereof the verifying affidavit and the submissions by learned counsels for the ex-parte applicant and the 1st respondent. 40. For the court, the issue for determination is whether the ex-parte applicant has been able to demonstrate that an order of mandamus should issue from this court to compel the 1st respondent to pay the ex parte applicant the sum of KShs. 5 million for the death of her husband as a result of an attack by the elephant. The issues raised by the ex-parte applicant and the 1st respondent are subsumed within the issue framed by the court. 41. Compensation for personal injury or death or damage to property under the WCM Act is provided for in section 25 as follows: (1) Where any person suffers any bodily injury or is killed by any wildlife listed under the Third Schedule, the person injured, or in the case of a deceased person, the personal representative or successor or assign, may launch a claim to the County Wildlife Conservation and Compensation Committee within the jurisdiction established under this Act. (2) The County Wildlife Conservation and Compensation Committee established under section 18 shall verify a claim made under subsection (1) and upon verification, submit the claim to the Cabinet Secretary together with its recommendations thereon. (3) The Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate, pay compensation to the claimant as follows— a. in the case of death, five million shillings; b. in the case of injury occasioning permanent disability, three million shillings; c. in the case of any other injury, a maximum of two million shillings, depending on the extent of injury. 7/11

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(4) … (5) … (6) A person who is dissatisfied with the award of compensation by either the County Wildlife Conservation and Compensation Committee or the Service may within thirty days after being notified of the decision and award, file an appeal to the National Environment Tribunal and on a second appeal to the Environment and Land Court. (7) … 42. The 1st respondent’s response to the application is primarily based on the argument that the statutory mandate to pay compensation is not upon KWS but the Cabinet Secretary for Tourism and Wildlife. Learned counsel for the KWS has made very extensive submissions on the same. However, the Supreme Court has dealt with this argument in the case of Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] KESC 48 (KLR) which in relation to the issue he raises observed as follows at paragraph 66:“A global comparison of laws and jurisprudence relating to animal and wildlife management normally provide that an entity charged with such a management task also collects the revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation for damage made by animals and wildlife...The Wildlife Act gives responsibility to Kenya Wildlife Service as the park revenue collector to compensate for damage occasioned by wild animals." 43. Earlier the Court of Appeal succinctly deal with the issue in Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR). The court 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 Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited [2014] KECA 330 (KLR) 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.” 44. These holdings by the superior courts have settled the issue of who between the KWS and the Cabinet Secretary is responsible for making the compensation. For me, the Court of 8/11

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Appeal found that when it comes to the issue of compensation, KWS and the Cabinet Secretary play the same role. They are conjoined and will not be separated, so that a claim against the Cabinet Secretary is a claim against the KWS. 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) among others. 45. I am bound by the said decisions of the superior courts and I do not know whether learned counsel for the 1st respondent wishes this court to depart from that holding which is not possible. I will therefore not belabour that point any more other than to find that the response by the 1st respondent to the application that KWS has no statutory mandate to pay compensation to victims of wildlife damage is without merit. From the decisions of the superior courts above, it is not difficult to see that the Ministry’s role in administering the Wildlife Compensation Scheme is only facilitative but the entity that bears the responsibility to make the compensation is the agency responsible for wildlife conservation and management, the KWS, the 1st respondent herein. 46. Both parties are agreed that the ex-parte applicant properly lodged a claim for compensation with the Kwale County Wildlife Compensation Committee sometime in 2023. The ex-parte applicant had not been informed of the outcome of their claim as the time of filing this action. However, the 1st respondent says that payment for compensation was approved and forwarded to the 2nd respondent for action the Cabinet Secretary who has the mandate to pay the compensation considered the recommendations and has since approved the claim for compensation. Hoe however falls short of giving the possible date when the compensation is going to be paid out. 47. Section 106(2)(c) of the Wildlife Conservation and Management Act, provides that 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 the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act. It is the ex-parte applicants’ case that the respondents have failed to act on her claim. Without communication from the respondents to the ex-parte applicant of what became of her claim since she launched it (this is the word used in the Act), I am satisfied that the ex-parte applicant was right in filing the present application seeking an order of mandamus against the respondents as provided for under section 106 of the Act. 48. Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations provides the timelines for consideration and payment of claims as follows: 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. 9/11

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49. There are statutory timelines for the Cabinet Secretary to act as provided above. The Cabinet Secretary is required to make a decision within thirty days of receipt of a claim for death. Certainly, the timelines within which the Cabinet secretary is required to act have long passed. 50. It is about three years since the ex-parte applicant lunched her claim. It follows that 2nd respondent is in violation of the provisions of the Act with respect to the timelines for making payment of the claim. and the ex-parte applicant is properly before this court to seek orders to compel the respondents to pay her the compensation because she has reason to believe that the provisions of this Act have been and are being violated. She is right to petition this court for the writ of mandamus against the respondents who have failed to perform their duties imposed by the Act and the compensation regulations. 51. In view of the non-action by the Cabinet Secretary, the 2nd respondent herein, the only option available to the ex parte applicant to get compensation for the death of her husband is to compel the 1st respondent being facilitated by the 2nd respondent through a judicial review order of mandamus to act accordingly as was held in the case of KWS vs Purity Kanini (suing as the next friend to EDWARD KOOME) Nyeri Civil Appeal No. 30 of 2020. 52. Consequently, I find that the application by the ex-parte applicant has merit and the same is allowed in terms that the 1st respondent and 2nd respondents jointly and severally are hereby compelled by an order of Mandamus to fulfill their statutory obligation to pay KShs 5,000,000/= to the ex-parte applicant as compensation for the death of her husband Jefa Nyanje Nyoro as a result of an attack by an elephant. 53. The costs of this application are awarded to the ex-parte applicant. 54. Orders accordingly. Ruling delivered, dated and signed on the Virtual Platform Teams this 25th day of February 2026. ANDAYI W.F. JUDGE In the presence of: Mwendwa for the ex-parte applicant No appearance for the 1st and 2nd N/A for the 3rd Respondent. Ummu - Court Assistant 10/11

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