Judicial Review Misc.application No. E017 of v Kenya Wildlife Service & 1 other

b) That the 1st Respondent do report to this Honorable Court it's decision and/or deliberation under Prayer (1) above on or before the Expiry of 30 days from the date of issuance of this Order. c) Costs of and incidental to the application be provided for; d) Such further and other reliefs that this Honourable Court may deem just and expedient to grant. 2. The application is supported by the affidavit sworn by the ex-parte applicant on even date. He avers that leave has been obtained to file the application. 3. It is the ex-parte applicant’s case that on 30 th August 2022, his farm was invaded by rogue elephants which uprooted, trampled on and ate his tomato crop. That he reported the incident to the 1st respondent’s office and he filled the requisite claim forms attaching the necessary documentation. 4. The ex-parte applicant avers that he has made follow up visits but the 1st respondent has neglected, failed, refused or ignored to finalize the compensation process. Thus, he seeks the orders set out in his application. 5. The 2nd respondent opposed the application through a replying affidavit sworn by Ali Chimwaga, its Warden, Meru National Park. MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 2 of 14

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6. He avers that the ex-parte applicant initiated the statutory compensation by reporting the alleged crop damage. 7. That he was issued with a claim form which he failed to return for deliberation by the 1st respondent. 8. It is further deposed that having failed to present the claim form, there is no award made hence there is nothing for this court to enforce or compel payment for. That the exparte applicant should first return the claim form and seek for orders compelling the 1st respondent to deliberate the claim within the statutory 30 days. 9. The 2nd respondent opposed the application through ground of opposition dated 18th March 2026. The following grounds have been set out: a) That the application has not met the threshold for the grant of the orders sought. b) That the application is misdirected since the 2 nd respondent has neither failed deliberate, verify compensation of the applicant since the strict and/or nor refused recommend to the procedures stipulated in the Wildlife Conservation and Management Conservation and Act, 2013 and Management the Wildlife (Compensation) Regulations, 2017 are ongoing. c) That 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 MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 3 of 14

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unreasonable delay by the public body. The 2 nd respondent has not refused and/or delayed in complying with the law in the instant matter. d) That the application fails to demonstrate any specific breach of statutory duty or wrongdoing on the part of the 2nd respondent and there is no evidence establishing neglect, refusal or failure to perform any duty as required by the law. e) That the 2nd respondent has not abdicated its statutory roles as alleged by the applicant and no evidence has been adduced to support those wild allegations. f) That this application is 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. g) That the application is misconceived and full of untrue allegations which are not supported by any evidence and therefore should be dismissed forthwith. 10. Parties filed their respective submissions, which I shall not rehash, but will refer to them where necessary. 11. Having considered the application, the responses thereto and the parties’ submissions, I find that the following issues arise for determination: MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 4 of 14

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a. The nature of an order of mandamus, b. Whether the application is properly directed at the respondents. c. Whether the application offends the determine of ripeness, d. Whether the ex-parte applicant is entitled to the orders sought. 12. An order of mandamus is a writ issued by this court to compel the performance of a statutory duty owed to an applicant. In the case of Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No. 266 of 1996 the purpose and scope of an order of mandamus was described as as follows: “The next issue we must deal with is this: What is the scope and efficacy of an order of mandamus? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says:“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring or them do him to some particular thing therein specified which appertains to his or their office and is in MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 5 of 14

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the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.” At paragraph 90 headed “the mandate” it is stated: “The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.” What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 6 of 14

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persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.” 13. The order of mandamus is issued pursuant to the provisions of Article 165(6) which states as follows: The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. 14. The Fair Administrative Action Act at section 11 provides as follows: Orders in proceedings for judicial review (1) In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order– …. (f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right; 15. Section 106 (2) of the Wildlife Conservation and Management Act provides as follows: MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 7 of 14

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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— (a) a declaration that the provisions of this Act are being, have been, or are about to be contravened; (b) an injunction restraining any specified person from carrying out the contravention; (c)the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act; or any remedy at law or equity for preventing or enforcing the provisions of this Act. 16. From the foregoing, provisions of the law, it is abundantly clear that this court has the requisite jurisdiction, where appropriate, to issue a writ of mandamus compelling any person or body to undertake an act that it is by law required to so undertake. 17. For the court to issue an order of mandamus, it has to be satisfied that the person to whom the writ is directed has a statutory duty to undertake certain action and has failed or neglected to undertake such action. MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 8 of 14

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18. The respondents’ case is that the ex-parte applicants’ application is not ripe for determination as there has been no failure of statutory duty on their part for the reason that the ex-parte applicant failed to submit the compensation claim form as required in order to initiate the deliberation by the 1st respondent. 19. The Ripeness doctrine is one facet of the broader principle of non-justiciability. It is a jurisdictional issue that bars a court from considering a dispute whose resolution has not crystallized enough as to warrant the court’s intervention. Its operation is informed by the idea that there exist other fora with the capacity to resolve the dispute other than court process. 20. The said doctrine stipulates that a court ought not to engage in premature adjudication of matters. While the court retains the discretion to determine whether on the circumstances of any matter before it ought to be determined by it, it ought not to determine issues which are not yet ready for determination or are only of academic interest. 21. These principles were clearly set out by The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR where it held: “The doctrine focuses on the time when a dispute is presented MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 for adjudication. Page 9 of 14

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The Black’s Law Dictionary 10th Edition, [supra] at page 1524 defines ripeness as: The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies.” 22. In Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others [2016] eKLR the court reiterated the same principles. It held that; “The extensive quotations were deliberate. It is clear from a review of the above case law that there is now a distinct and coherent jurisprudence within our jurisdiction on the justiciability dogma. There is settled policy with clear arguments as well as out of repetitive precedent that courts and judges are not advise-givers. The court ought not to determine issues which are not yet ready for determination or is only of academic interest having been overtaken by events. The court ought not to engage in premature adjudication of matters through either the MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 10 of 14

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doctrine of ripeness or of avoidance. It must not decide on what the future holds either. It is however to be noted that the court retains the discretion to determine whether on the circumstances of any matter before it still ought to be determined.” 23. From a look at the documents presented by the ex-parte applicant, it is clear that the compensation claim forms serial number 10971 was duly issued and was filled in as required including the agents of the 2 nd respondent. The 2nd respondent was thus required to act as directed under Section 25(4) of the Act which provides as follows regarding loss of crops: “Any person who suffers loss or damage to crops, livestock or other property from wildlife specified in the Seventh Schedule hereof and subject to the rules made by the Cabinet Secretary, may submit a claim to the County Wildlife Conservation and Compensation Committee who shall verify the recommendations submit it to claim and make as appropriate and Service due the for consideration.” 24. The Regulations under the Act provide the procedure to be followed. Regulation 28 provides as follows; MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 11 of 14

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Claims for loss or damage to crops, livestock, or other property On receipt of a claim for loss or damage to crops, livestock or other property, the Committee shall within thirty days of such receipt verify the claim and make recommendations. 25. It is clear from the material before me that that the exparte applicant duly complied with the law and regulations and lodged the compensation claim form. It was thus upon the 2nd respondent to show that it acted on the claim within the timelines set by the law. The 2 nd respondent has failed to demonstrate that. It is years since the claim was lodged. 26. I am thus of the view that the ex-parte applicant is properly before this court as there was no action taken within the timelines set out by the law. 27. The ex-parte applicant has asked the court to order the payment of Kshs. 900,000/= being the value assessed by the Agricultural Officer. 28. In my view, the court cannot issue such an order. Doing so would be to wade into the statutory mandate and functions duty of the 2nd respondent to verify the claim and make recommendations. What this court ought to do is to ensure that the statutory body empowered to act, does so. MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 12 of 14

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29. In the instant case, the 2nd respondent has not acted despite being made aware of the claim. 30. Having considered the matter, I am of the opinion that the applicant has made out a case against the respondents, but only to the extent that; a) The 2nd respondent ought to be compelled to consider the ex-parte applicant’s claim, verify it and make appropriate recommendation. b) Upon receipt of the recommendation, the 1 st respondent ought to proceed to make payment as required. 31. Therefore, after considering the application, I grant the following orders: a) An order of mandamus is hereby issued to the 2 nd respondent to review the ex parte applicant’s claim, and make an award within 30 days of order (b). b) The ex parte applicant is to re-submit the compensation claim forms to the 2 nd respondent within the next 14 days. c) An order of mandamus against the 1st respondent compelling it that upon receipt of the recommendation from the 2nd respondent, to make payment to the ex parte applicant within 90 days. MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 13 of 14

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d) In default of action on the part of the respondents, the ex-parte applicant is at liberty to move this court for appropriate orders. e) The respondents shall bear the costs of this application. Dated, Signed & Delivered at Meru this 5th day of August 2026. H.M. NYAGA JUDGE MERU. JUDICIAL REVIEW APPLICATION E010 OF 2025 Page 14 of 14

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