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 Respondents and especially the 1st Respondent to immediately release Kshs. 3,000,000 to the Applicant’s Advocate. b) Costs of this application be provided for. 2. The application is supported by the grounds stated in the Statutory Statements dated 19/08/2025 and the ex-parte Applicant’s Verifying Affidavit sworn on the same day. 3. It was deposed that on 22/08/2002, he was viciously attacked by a snake while at their home compound in Thange Sub-Location thus occasioning him serious injuries. That the attack was as a result of the 1st Respondent’s negligence and breach of statutory duty as governed by provisions of the Wildlife Conservation & Management Act (the Act). 4. That, he reported the matter at the Police Station and the Chief’s Post whereupon the 1st Respondent’s officers took details and promised to compensate him for the injuries. That, he applied for compensation by filling a claim form provided by the 1 st Respondent. That, the 1st Respondent 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 RULING: MAKUENI HC JR NO. E015 OF 2025 2

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validates and approves payment of awards and a sum of Kshs. 3,000,000/= was approved. 5. 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 forthcoming with feedback. 6. He averred that, he has now waited for close to twenty-three 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. 7. He deposed that, he is apprehensive 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. 8. The application is opposed through the Replying Affidavit sworn by Diana Sigei on 13/02/2025 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 1 st 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. RULING: MAKUENI HC JR NO. E015 OF 2025 3

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9. That, under Section 7 of the Act, it is not the 1st 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. 10. She deposed 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. 11. 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 from 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. 12. The 2nd Respondent did not file any response. 13. The application was canvassed through written submissions. 14. The issues for determination were identified to be; RULING: MAKUENI HC JR NO. E015 OF 2025 4

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a) Whether the 1st Respondent is statutorily bound to manage national parks and reserves. 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. 15. 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. 16. 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 therefore 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 RULING: MAKUENI HC JR NO. E015 OF 2025 parties should concern 5

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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.” 17. 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 for damage that the compensate occasioned by wild animals.” 18. 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. E015 OF 2025 6

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19. 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. E015 OF 2025 7

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20. It was submitted that various Judges of the High Court, faced with similar applications 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. 21. In conclusion, it was submitted that the ex-parte Applicant is entitled to an order of mandamus as well as costs. 22. The 1st Respondent identified the issues for determination to be; Whether the 1st Respondent is a proper party in these proceedings and if so, whether there was a decision to compensate and whether the orders sought against them are available to the ex-parte Applicant. 23. 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; “In determining these issues, it is crucial to first lay down the principles that guide the RULING: MAKUENI HC JR NO. E015 OF 2025 8

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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 directed to inferior tribunal or 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 issue in cases where although there is an alternative remedy, RULING: MAKUENI HC JR NO. E015 OF 2025 yet the mode of 9

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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 ex-Parte Kithinji Murugu M’agere; Nairobi High 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 invested by statute upon some person, body of persons or tribunal which such person, body of persons or tribunal has failed to perform…” RULING: MAKUENI HC JR NO. E015 OF 2025 10

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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.” 24. 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. 25. It was submitted that no decision has been made by the 2 nd Respondent compelling the 1st Respondent to pay the ex-parte Applicant the amount of Kshs. 3,000,000/=. 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 RULING: MAKUENI HC JR NO. E015 OF 2025 11

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compensation on claims resulting from loss or damage caused by wildlife. 26. 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. 27. That, this court has a duty to interpret the law as it 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 no role in these proceedings. This is a case of mis-joinder.” 28. 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 RULING: MAKUENI HC JR NO. E015 OF 2025 12

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in claims of damage and loss caused by wildlife is clearly set out in Sections 24 and 25 of the Act. 29. 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. 30. The 2nd Respondents did not file submissions. 31. Having looked at the application, Replying Affidavit and the rival submissions, it is my considered view that the following issues arise for determination; a) Whether the 1st Respondent is a proper party in these proceedings. b) Whether the order of mandamus should be issued. 32. 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. RULING: MAKUENI HC JR NO. E015 OF 2025 13

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33. 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. 34. The procedure for compensation is provided for under Section 25 of the Act. 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. 35. Consequently, the duty of KWS is limited to verifying a claim and submitting it to the RULING: MAKUENI HC JR NO. E015 OF 2025 Cabinet Secretary together with 14

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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. 36. 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) to the extent that both have responsibility to honour compensation claims and that that is an internal issue between the two. Therefore, the 1st Respondent cannot isolate itself from compensation claim. 37. An order of mandamus is codified under Order 53 of the Civil Procedure Rules. It is trite that the purpose of the order is to compel 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; “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 RULING: MAKUENI HC JR NO. E015 OF 2025 15

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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.” 38. In this case, the ex-parte Applicant attached a claim compensation form issued by the 1 st Respondent indicating that he was bitten by a snake(cobra) while at his home in the compound. The exact date in the form is not clear but it has a stamp showing the year 2002 and an indication that the ex-parte Applicant was 6 years old. The P3 form indicates that the exparte Applicant suffered a snake bite on 08/11/2001. Consequently, it is clear that the ex-parte Applicant sustained injuries as a result of attacks by wildlife namely cobra snake. 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 RULING: MAKUENI HC JR NO. E015 OF 2025 16

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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. (4)……………………………………… (5)……………………………………… (6)……………………………………… (7)……………………………………… 39. The claim compensation form dated 2002 does not have a recommendation from the 1st Respondent but the P3 form confirms that the ex-Parte Applicant was bitten by a snake. The 1st Respondent acknowledged that indeed the claim compensation form was filled, on behalf of the ex-parte Applicant who was a child at the time of the incident, and returned to the 1st Respondent for processing thus lodging the claim for compensation under the Act. It is evident that the 1 st Respondent did not deny receiving and processing the compensation claim. The only logical conclusion was that the claim was admitted but compensation was not made. RULING: MAKUENI HC JR NO. E015 OF 2025 17

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40. The 1st Respondent’s main bone of contention is that it is not their duty to compensate the ex-parte Applicant. 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 as follows’…. (emphasis mine). 41. 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. 42. Having held as above, it is my holding that the 1 st Respondent being the sole Manager and custodian of wild life in the country, it owed the ex parte Applicant a duty of care from being attacked by wildlife. In this case, I am satisfied that the Applicant has RULING: MAKUENI HC JR NO. E015 OF 2025 18

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proved his case to the required degree hence the Respondents are directed to jointly and severally honour the compensation claim. As costs follow the event, I do award the same 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. E015 OF 2025 19

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