Republic v Kenya Wildlife Service & 1 other

Act, Order 53 Rule 3 of the Civil Procedure Rules and all enabling laws seeking; a) An order of mandamus be issued to compel the 1st & 2nd Respondents to pay the ex-parte Applicant the sum of Kshs. 5,000,000 to the Applicant’s Advocate. b) Costs and further incidentals to this application be provided for by the Respondents. c) Such further or other relief as the honorable court may deem just and expedient to grant. 2. The application is supported by the grounds stated in the statutory statement dated 23/09/2025 and the ex-parte Applicant’s Verifying Affidavit sworn on the same day. 3. It was deposed that on 12/12/2023, the deceased was viciously attacked by a hippo/crocodile within Kikumbulyu Location thus occasioning him fatal injuries. That the attack was caused by the Respondents’ negligence and breach of statutory duty as governed by provisions of the Wildlife Conservation & Management Act (the Act). 4. That, they reported the matter at Kibwezi Police Station and at the area Chief whereupon the 1st Respondent’s officers took details and promised to compensate the deceased’s family for RULING: MAKUENI HC JR NO. E016 OF 2025 2

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the loss suffered. That, he applied for compensation by filling a Claim Form provided by the 1st Respondent. That, the Respondents convened a meeting of the Community Wildlife Conservation Committee (CWCC), a function which it is tasked with, together with making recommendations to the Ministerial Wildlife Compensation Committee (MWCC) that validates and approves payment of awards. 5. He averred that, upon following up at the Kenya Wildlife Offices in 2025, he was informed that the MWCC approved the award of Kshs. 5,000,000/= for settlement of this claim. 6. That, in spite of the foregoing, he is yet to receive the compensation and has on various occasions made follow up but the 1st Respondent has not been responsive. 7. That, he has now waited for close to two (2) years and the Respondents are yet to make good the compensation even after the requisite meetings and approval of the claim by relevant committees. That, compensation continues to be delayed without any plausible explanation. 8. He expressed his apprehension that unless this court intervenes and compels the Respondents to act on their decision and settle the claim, the Respondents will continue to ignore his demands hence corrode and erode his confidence and that of the general public in the efficiency of administrative processes in Kenya. RULING: MAKUENI HC JR NO. E016 OF 2025 3

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9. The Application was opposed through the Replying Affidavit sworn on 13/02/2025 by Diana Sigei the 1 st Respondent’s Legal Officer who deposed that the application is fatally defective and bad in law as it seeks to compel the 1st Respondent to do that which is not within its mandate. That, the 1 st Respondent is established under Section 6 of the Act and its functions are provided for under Section 7 of the Act. 10. That, under Section 7 of the Act, it is not within the 1 st Respondent’s mandate to constitute, sit, deliberate on the claim and compensate the ex-parte Applicant. That, the 2nd Respondent, as per Section 25(3) of the Act, is mandated to consider recommendations made by the County Wildlife Compensation Committee, as per Section 25(2), and where appropriate, pay compensation to the Claimant. That, the 1st Respondent is only a Secretary to the County Wildlife Compensation Committee established under Section 18 of the Act. 11. She further averred that, the ex-parte Applicant was issued with Claim Compensation Forms from the Ministry of Tourism and Wildlife which he filled and returned to the 1 st Respondent for processing thus lodging the claim for compensation under the Act. 12. That, Section 25 of the Act places the role of payment of compensation squarely on the Cabinet Secretary, Ministry of Tourism & Wildlife. That, what the ex-parte Applicant is asking of RULING: MAKUENI HC JR NO. E016 OF 2025 4

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this Honorable Court, through the reliefs sought, is to go beyond its powers which is an illegality and tantamount to amendment of legislation through imposition of duty. 13. The 2nd Respondent filed the following Grounds of Opposition dated 08/04/2026; a) That, the Notice of Motion application is bad in law and the orders sought are untenable as the Applicants have failed to demonstrate any efforts whatsoever to have the compensation award settled by the 2nd Respondent. b) That the application as well as Statement of Facts and Verifying Affidavit are jumbled up with extraneous and incoherent matters that on the face of it merely bring out speculative and emotive conclusions based on the Applicant’s misconceived belief that he was awarded Kshs. 3,000,000 by the Respondents. c) That the Notice of Motion lacks any merit as it falls short of meeting the threshold of judicial review as adumbrated in the celebrated case of Republic -vsPublic Procurement Administrative Review Board & 2 Others Ex-Parte Sanitam Services (E.A) Limited (2013) eKLR. RULING: MAKUENI HC JR NO. E016 OF 2025 5

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d) That the Notice of Motion is a mere grope in the dark and the Applicant is merely attempting to evoke the court’s humanitarian nature to be awarded the said orders. e) That the Notice of Motion is a non-starter, abuse of court and justice as the orders sought are not supported by evidence of any decision by the Respondents to compensate the ex-parte Applicant. f) The ex-parte Applicant is guilty of laches hence their claim against the Respondents cannot be granted in the circumstances for being time barred. g) That on the basis of Halsbury’s Laws of England 4 th Edition, Vol 1, mandamus cannot issue to compel exercise of statutory discretion in a particular way to achieve particular results. h) The Notice of Motion is misconceived, without merit and an abuse of the court process. 14. The application was canvassed through written submissions. 15. The issues for determination were identified to be; a) Whether the 1st Respondent is statutorily bound to manage National Parks and Reserves? RULING: MAKUENI HC JR NO. E016 OF 2025 6

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b) Whether the 1st Respondent is mandated to compensate the ex-parte Applicant. c) Whether the ex-parte Applicant is entitled to the orders of mandamus. 16. As to whether the 1st Respondent is statutorily bound to manage National Parks and Reserves, reliance was placed on Sections 6 & 7 of the Act for the submission that the 1 st Respondent has a statutory mandate to control wildlife. 17. As to whether the 1st Respondent is mandated to compensate the ex-parte Applicant, it was submitted that the procedure to be followed for payment of damages is outlined in Section 25 of the Act and reliance placed on the case of Kenya Wildlife Services -vs- Joseph Musyoki Kalonzo (2017) eKLR where the Court of Appeal stated; “The Appellant admits duty to manage and conserve wildlife. The duty comes with attendant responsibility to shoulder any claims of loss or damage caused by breach of that duty……the Cabinet Secretary referred to in the Act pays the money on behalf of the appellant (KWS). Neither the court nor the parties should concern themselves with the internal arrangements of the appellant as to whether it is the CEO RULING: MAKUENI HC JR NO. E016 OF 2025 7

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of the appellant or the Cabinet Secretary who should disburse the money.” 18. Further reliance was placed on the case of Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Ltd (2018) eKLR where the Supreme Court of Kenya stated; “A global comparison jurisprudence relating of to laws and 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 cost of management and any related outcomes, including compensation for damage made by animals and wildlife…the Wildlife Act gives responsibility to Kenya Wildlife Service collector to as the park revenue compensate for damage that the occasioned by wild animals.” 19. Consequently, it was submitted duty to pay compensation has been positively determined by the Court of Appeal and Supreme Court. That, the 1st Respondent is liable to compensate the ex-parte Applicant’s claim which has been approved pursuant to the laid down procedure. RULING: MAKUENI HC JR NO. E016 OF 2025 8

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20. As to whether the ex-parte Applicant is entitled to orders of mandamus, reliance was placed, inter alia, on the case of Kenya Wildlife Service -vs- Abraham M’ngai M’itumitu [2021] KEHC 7105 (KLR) where the Court (Muriithi J), stated; “[11] Clearly, the appellant having awarded an amount under the Act, further intervention in court could only have been by the appeal process following upon the provision of the section, that is to say through the mechanism of a first appeal to the tribunal and thereafter a second appeal to the Environment and Land Court. The respondent may have opted to pursue its claim for compensation in negligence for damages for personal injury in the civil court as an alternative to the statutory compensation deciding, I mechanism. would consider Without that the respondent may also have pursed judicial review remedy in the High Court, if so advised by his advocates, for the award of the full award of compensation prescribed under the Act. The respondent may also, as he may be advised by his legal advisors, file an application for extension of time to pursue the appeal process set out in section 25 (6) of the Act.” RULING: MAKUENI HC JR NO. E016 OF 2025 9

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21. It was submitted that various Judges of the High Court, faced with a similar application as the present one, have held that an ex-parte Applicant is within his/her right to file a judicial review Application e.g. in Republic -vs- Kenya Wildlife Service & 2 Others; Muhia (ex-parte Applicant) (Judicial Review Application E003 of 2024) [2024] KEHC 8086 KLR where the Court held that the ex-parte Applicant was within her right to file the Judicial Review Application. 22. In conclusion, it was submitted that the ex-parte Applicant is entitled to an order of mandamus as well as costs. 23. The 1st Respondent identified the issues for determination to be; whether the 1st Respondent is a proper party in these proceedings: whether there was a decision to compensate and; whether the orders sought against them are available to the ex-parte Applicant. 24. It was submitted that the 1st Respondent is an improper party in these proceedings and the reliefs sought against them cannot be granted. Reliance was placed on the following; a) Republic -vs- County Government of Nairobi & 2 Others Ex-Parte Kingpost Limited [2021] eKLR where the court stated; RULING: MAKUENI HC JR NO. E016 OF 2025 10

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“In determining these issues, it is crucial to first lay down the principles that guide the Court when dealing with the judicial review remedy of mandamus, which the Ex-parte Applicant is seeking. The Court of Appeal in Commission on Administrative Justice vs Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR stated as follows: “As observed by the Judge and correctly so in our view, the principle that guides the High Court when dealing with the scope and efficacy of an order of mandamus was crystalized by the Court in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others (supra) namely: “The order of mandamus is of most extensive remedial nature and is in the form of a command issuing from the High Court person, of Justice corporation requiring him or or directed to inferior tribunal them particular thing therein to do any some specified which appertains to his or their office and is of 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 it may RULING: MAKUENI HC JR NO. E016 OF 2025 11

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issue in cases where although there is an alternative remedy, yet the mode of redress is not convenient, beneficial and effectual.” b) Paragraph 90 Halsbury’s Law of England 4th Edition Volume 1 at 111; “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 the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.” c) Republic -vs- The Commissioner of Lands and Another M’agere; ex-Parte Nairobi Kithinji High Murugu Court Misc. Application No. 395 of 2012; “A party in a judicial review seeking an order of mandamus must show the existence of a statutory duty conferred or RULING: MAKUENI HC JR NO. E016 OF 2025 12

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invested by statute upon some person, body of persons or tribunal which such person, body of persons or tribunal has failed to perform…” d) Republic -vs- Kenya Vision 2030 Delivery Board & Another Ex- parte Eng Judah Abekah [2015] eKLR; “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. 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.” 25. Consequently, it was submitted that an order of mandamus cannot issue to compel the 1 st Respondent to perform a statutory duty owed to an Applicant by another institution totally different from the 1st Respondent. 26. It was submitted that no decision has been made by the 2 nd Respondent compelling the 1st Respondent to pay the ex-parte RULING: MAKUENI HC JR NO. E016 OF 2025 13

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Applicant the amount of Kshs 5,000,000/=. That, there is no law providing that where such an incident as this occurs, the 1 st Respondent is mandated to settle such an amount with or without the existence of the decision of the 2nd Respondents. Reference was made to Section 7 of the Act for the submission that the 1st Respondent has no duty to compensate or pay compensation on claims resulting from loss or damage caused by wildlife. 27. It was submitted that the evidence annexed in the application and relied upon by the ex-parte Applicant is inconclusive. That, there is also no evidence that the 2nd Respondent has approved the said claim hence the submissions by the ex-parte Applicant are unsubstantiated and cannot be verified by this Honourable Court. That, the submission by the Applicant that the 1 st Respondent should take up the role of the 2 nd Respondent, and compensate the Applicant, is arbitrary and unlawful. 28. That, this court has a duty to interpret the law as is without any modifications whatsoever as well as a duty to examine the evidence adduced before it makes a determination based on the same. Reliance was placed on the case of Republic -vs- County Government of Nairobi & 2 Others Ex-Parte Kingpost Limited [2021] eKLR where 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 RULING: MAKUENI HC JR NO. E016 OF 2025 14

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no role in these proceedings. This is a case of mis-joinder.” 29. It was submitted that the 1st Respondent is improperly joined in these proceedings because the duty in question is the duty to compensate for losses and damage caused by wildlife and not the duty to manage wildlife. That, the process for compensation in claims of damage and loss caused by wildlife is clearly set out in Sections 24 and 25 of the Act. 30. In conclusion, it was submitted that an order of mandamus can only issue to compel performance of a statutory duty owed to an Applicant and the 1st Respondent has demonstrated that it has no statutory duty to compensate for claims of loss or damage caused by wildlife. 31. The issues for determination were stated to be; a) What are the grounds for Judicial Review Application? b) Whether this court has jurisdiction to determine issues in the Notice of Motion Application? c) Whether the court should grant the reliefs sought? 32. As for the grounds for Judicial Review Application, reliance was placed on the case of Council of Civil Service Unions -vsMinister for the Civil Service (1985) AC 374 for the submission that the grounds for reversing an administrative RULING: MAKUENI HC JR NO. E016 OF 2025 15

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decision by way of Judicial Review were summed up by Lord Diplock to be; illegality, irrationality and procedural impropriety. 33. It was submitted that the ex-Parte Applicant ought to have demonstrated that the process that led to the impugned decision was illegal, Applicant outrageous failed this and test improper. miserably That, as the they ex-Parte have not demonstrated that there was a decision to enforce. 34. As to whether the court has jurisdiction, it was submitted that Judicial Review is concerned with the decision-making process and not the merits of a decision. That, this court is being called upon to sit on the merits or otherwise of a purported decision by the Respondent. That, the facts pleaded by the Applicant are entirely disputed by the 2nd Respondent and the Applicant has not demonstrated that he was awarded the compensation or steps taken to ensure payment of the compensation. That, this raises a question as to whether the Applicant was indeed awarded the compensation. 35. As to whether the reliefs sought should be granted, it was submitted that mandamus cannot compel exercise of power or discretion and cannot compel the performance of a duty in a particular way or to achieve a particular outcome. Reliance was placed inter alia on the case of Republic -vs- Marshland and Fen District Commissioners (1910) 1KB 155 at 165 where the Court stated; RULING: MAKUENI HC JR NO. E016 OF 2025 16

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“It may be that the Act of Parliament has granted a power rather than imposed a duty, has conferred a discretion rather than an obligation. If a power or discretion only as distinct from a duty, exists then the prerogative writ of mandamus will not be issued by the court.” 36. It was submitted that in this case, the Applicant seeks to compel the Respondents to perform statutory duty and secretion in a particular way to achieve particular results. That, the Applicant is relying on a non-existent decision awarding the alleged compensation and has failed to demonstrate that he sought settlement from the 2nd Respondent and was denied. It was contended that the Applicant has failed to demonstrate that he is owed a duty by the 2nd Respondent. Reliance was placed on the case of Republic -vs-Kenya Vision 2030 Delivery Board & Anor Ex-Parte Eng Judah Abekah (2015) eKLR where the court stated; “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. 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 RULING: MAKUENI HC JR NO. E016 OF 2025 17

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duty, has refused or failed to discharge that duty and there is no adequate remedy.” 37. Further reliance was placed on the case of Republic -vs- The Commissioner of Lands & Anor Ex-Parte Kithinji Murugu M’agere; Nairobi High Court Misc Application No. 395 of 2012 where the Court (G.V Odunga J), as he then was) stated; “12. It is an order sought under sections 8 and 9 of the Law Reform Act, Cap 26 Laws of Kenya as read with Order 53 of the Civil Procedure Rules by person or body from the High Court of Kenya requiring any act to be done. In other words, mandamus would issue from the alternative remedy, requesting that a statutory body etc be compelled to fulfill its statutory obligation. So, mandamus order can issue from the High Court commanding a body or person to do that which it is its or his duty to do. It lies to secure that performance of a public duty, in the performance of which the applicant has a sufficient legal interest.” 38. Having looked at the application, Replying Affidavit and the rival submissions, it is my considered view that the following issues arise for determination; RULING: MAKUENI HC JR NO. E016 OF 2025 18

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a) Whether the Application is time barred. b) Whether the 1st Respondent is a proper party in these proceedings. c) Whether the order of mandamus should be issued. 39. The 2nd Respondent accused the ex-Parte Applicant of latches and argued that the claim cannot be granted for being time barred. The principle of latches was explained by the Court of Appeal in the case of James Kanyiita Nderitu -vs- Attorney General & Director of Public Prosecution (2019) KECA 1006 (KLR) as follows; “28. We have considered the appellant’s submission and the learned judge’s finding that there was inordinate delay in the filing of the petition. In this context, the learned judge invoked the principle of laches. Laches means the failure or neglect, for an unreasonable length of time, to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time…” RULING: MAKUENI HC JR NO. E016 OF 2025 19

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40. The application herein is brought under Order 53 of the Civil Procedure Rules and Sections 8 & 9 of the Law Reform Act. Order 53(1) and (2) which provide as follows: “53(1). No application for an order of Mandamus, Prohibition or Certiorari shall be made unless leave therefore has been granted in accordance with this rule. 53(2). Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.” 41. On the other hand, Section 9(2) and (3) of the Law Reform Act provides as follows: RULING: MAKUENI HC JR NO. E016 OF 2025 20

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“9(2). Subject to the subsection (3), rules subsection (1) may provisions of made under prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates. 9(3). In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.” RULING: MAKUENI HC JR NO. E016 OF 2025 21

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42. From the above provisions, it is evident that the 6-month rule applies when it is an order of certiorari being sought. In short, an application for the Judicial Review order of certiorari must be filed within six months from the date of the decision being challenged. 43. With regard to orders of mandamus and prohibition, there is no express provision giving a timeline within which they should be sought. I am in agreement with the reasoning in the persuasive case of Joseph Muriithi Nyaga -vs- Embu County Government [2021] eKLR where Section 9 of the Law Reform Act was interpreted as follows; “15. What is clear from Section 9(2) is that the rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates. My understanding of this section is that it is the rules which are made to govern court proceedings which can (discretionally) provide for the time limit within which an application for mandamus (as the case herein) can be made. The only instance when section 9 limits such time is where an applicant seeks for orders of certiorari. RULING: MAKUENI HC JR NO. E016 OF 2025 22

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16. The power to make rules as contemplated under section 9(1) is actually actualized by the provisions of Order 53 of the Civil Procedure Rules 2010. Indeed, there are no other rules besides Order 53 of the Civil Procedure Rules 2010. 17. I have clearly looked at the said Order 53 of the CPA and there is nowhere in that Rule is it stated that an application for the order of mandamus must be made within six months of the date of the act complained of. It is only in Order 53 Rule 2 that a specific timeline is given for the application for the order of certiorari. That particular Rule reads as follows: … 18. Further, from the reading of the said section 9(2), the prescription as to the time within which applications for an order of mandamus, prohibition or certiorari ought to be made is in regards to specified proceedings. There are no other which been made in regards have rules to execution against the government taking the same as specific proceedings as contemplated by the said section. RULING: MAKUENI HC JR NO. E016 OF 2025 23

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19. It is my view therefore, that the respondent herein misconstrued the law in raising the preliminary objection. It is clear that section 9(2) does not limit the time for filing an application for mandamus to six months but provides that rules made to provide for the procedure of the courts may limit such time. The procedural rules (CPR 2010) which are the only applicable rules do not provide for such a limitation on time in relation to an application for orders of mandamus but only when seeking for orders of certiorari.” 44. Similarly, in this case, there are no other rules which have been made in regards to compensation under the Wildlife Management & Conservation Act which are ‘specified proceedings’ as contemplated by Section 9(2) of the Act. 45. Further, this case is seeking to enforce the performance of alleged statutory duties hence there can be no prejudice on the Respondents due to unavailability of witnesses. Additionally, the ex-Parte Applicant’s deposition that he has been actively pursuing compensation from the Respondents over the course of two years has not attracted any rebuttal from the Respondents. RULING: MAKUENI HC JR NO. E016 OF 2025 24

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46. Consequently, it is my considered view that the application is not time barred. 47. The 1st Respondent (KWS) is established under Section 6 of the Act and its functions are outlined under Section 7. The Wildlife Compensation Scheme is established under Section 24 and according to Section 24(2), the scheme shall be used for financing compensation claims for human death or injury or crop and property damage caused by wildlife. 48. According to Section 18(2) of the Act, an officer of KWS for the county serves as the Secretary of the Community Wildlife Conservation Committee whose functions, under Section 19, are; (a)review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife; (b)develop and implement, in collaboration with the Service and Community Wildlife Associations, mechanisms for mitigation of human wildlife conflict; (c)bring together relevant stakeholders to harness participation in conservation and management programmes of wildlife; and (d)perform such other functions as the Service may require or delegate to it. RULING: MAKUENI HC JR NO. E016 OF 2025 25

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49. The procedure for compensation is provided for in Section 25 of the Act and according to Section 25(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.’ 50. Consequently, the duty of KWS is limited to verifying a claim and submitting it to the Cabinet Secretary together with recommendations thereon. It is therefore evident that KWS is a necessary party, in proceedings of compensation claims, for purposes of informing court whether it has discharged its mandate. 51. Additionally, the necessity of KWS as a party in these proceedings can be deduced from the holding of the Court of Appeal in KWS -vs- Joseph Musyoki Kalonzo (supra) in which the Respondents were held to hold joint responsibility in compensation claims. 52. An order of mandamus is codified in Order 53 of the Civil Procedure Rules. It is trite that the purpose of the order is to compel the performance of a public duty as stated by Nyamweya J (as she then was), in the case of Republic -vs- Jomo Kenyatta University of Agriculture and Technology ex parte Elijah Kamau Mwangi [2021] eKLR to wit; RULING: MAKUENI HC JR NO. E016 OF 2025 26

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“The purpose of mandamus is to compel the performance of a public duty or any act contrary to or evasive of the law. It therefore lies against a public officer when some specific act or thing, which the law requires to be done, has been omitted. The conditions for its grant are that it must be shown that the public officer has failed to perform his duty; the court will not grant mandamus where there is an alternative remedy available to the applicant; and that it may be refused if the enforcement of the order will pose implementation challenges that require the Court’s supervision.” 53. In this case, the ex-parte Applicant attached a claim compensation form issued by the 2nd Respondent, on 04/01/2023, indicating that; ‘The deceased’s whole body was found lying besides river Athi which was suspected to have died after the attack by a Hippopotamus or a crocodile.’ A Death Certificate was also attached showing the cause of death to be; ‘cardiopulmonary failure multiple injuries caused by a wild animal.’ A Post Mortem Report was also attached indicating the cause of death to be; ‘Cardiopulmonary failure caused by cervical vertebra dislocation with spinal cord injury and hemorrhage from wounds consistent with hippo bite marks.’ RULING: MAKUENI HC JR NO. E016 OF 2025 27

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54. Consequently, it is clear that the ex-parte Applicant sustained injuries as a result of attacks by wildlife namely Hippopotamus. Section 25 of the Act provides; (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 consider the recommendations thereon. (3) The Cabinet Secretary shall 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. (4)……………………………………… RULING: MAKUENI HC JR NO. E016 OF 2025 28

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(5)……………………………………… (6)……………………………………… (7)……………………………………… 55. The Claim Compensation Form does not have a recommendation from the 1st Respondent but the Death Certificate and Post Mortem Report confirm that the ex-Parte Applicant was bitten by a Hippopotamus. 56. Further, the 1st Respondent confirmed that the ex-parte Applicant’s next of kin was issued with Claim Compensation Form from the Ministry of Tourism and Wildlife which was filled and returned to the 1st Respondent for processing thus lodging the claim for compensation under the Act. The 1st Respondent’s main bone of contention is that it is not their duty to compensate the ex-parte Applicant. 57. The plain reading of the provisions highlighted in paragraph 37 above is that the 1st Respondent has a duty to verify a claim and submit it to the Cabinet Secretary together with its recommendations thereon. The duty to pay crystalizes once the amount payable is assessed and approved by KWS. The wording of Section 25(3) of the Act (Supra) is ‘The Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate, pay compensation to the Claimant. 58. In any event, the 1st Respondent in its Replying Affidavit admitted that a claim was lodged and it issued claim forms for RULING: MAKUENI HC JR NO. E016 OF 2025 29

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compensation to the Applicant thus acknowledging that the deceased died out of a wildlife attack. The 1 st Respondent did not claim that they investigated the claim and found it untenable. I have no doubt the claim was duly submitted and the relevant committee did make the approval for compensation. 59. Subsequent to discharge of the said duty by the 1 st Respondent, an Order of mandamus should be directed to the 2 nd Respondent to pay the verified and approved amount to the ex-parte Applicant through his Advocate. In the case of KWS -vs- Joseph Musyoki Kilonzo (supra) the Court of Appeal made a finding that; “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.” Consequently, the 1st Respondent should liaise with the 2nd Respondent and ensure that the approved amount is disbursed to the ex-parte Applicant. 60. Further, in line with the holding of the Supreme Court decision in the case of Kenya Wildlife Services vs Rift Valley Agricultural contractors LTD (supra), the KWS and Ministry in charge of Tourism and Wildlife have a joint responsibility of compensating victims of wildlife attack. The 1st Respondent cannot claim custodial power over wild life control and management yet run away from their animal’s damage to human life or peoples’ property. They owed the deceased a public duty of care for safety from being attacked by wildlife. RULING: MAKUENI HC JR NO. E016 OF 2025 30

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61. In view of the above finding, it is my holding that the 2 nd Respondent together with the 1st Respondent are duty bound to compensate the ex parte Applicant on behalf of the estate of the deceased. Accordingly, application is allowed as prayed with costs to the ex parte Applicant. Dated, signed and delivered virtually this 31st day of July 2026 .................................... J. N. ONYIEGO JUDGE RULING: MAKUENI HC JR NO. E016 OF 2025 31

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