https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8217

M’Tuara v County Wildlife Compensation Committee Meru & 2 others (Judicial Review E014 of 2025) [2026] KEHC 8217 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEHC 8217 (KLR) Republic of Kenya In the High Court at Meru Judicial Review E014 of 2025 HM Nyaga, J June 8, 2026 Between Anatacia Mwenjaru M’Tuara Applicant and County Wildlife Compensation Committee Meru 1st Respondent Cabinet Secretary Ministry Of Tourism & Wildlife 2nd Respondent Kenya Wildlife Service 3rd Respondent Ruling 1.By an application dated 24th April, 2025, the ex-parte applicant sought the following orders: -a.That this Honouable court do an order of Mandamus by way of Judicial Review compelling the respondents to settle the claim as per the provisions of section 25 rule 4 of the Wildlife Conservation and Management Act No. 46 of 2013 plus costs and interest thereon calculated at court rates from the date of judgment.b.Cost of this Application be provided for. 2.The application is supported by the grounds set out on its face and the affidavit of the ex-parte applicant. 3.In a nutshell, the ex-parte applicant’s case is that he is the registered owner of the land parcel known as 766/Ngaremara /Gambela Adjudication Section, on which he had planted crops including maize, beans, green grams and dolichos. That on or about 2nd January, 2022, elephants from the Meru National Park invaded his farm and destroyed his entire crop, which was mature for harvesting. That he reported the incident to the 3rd respondent by filling the requisite Claim Form, attaching the requisite documents. That despite numerous follow ups, the respondent have failed/neglected to compensate him for his loss. That the respondents are statutory bodies, who have failed in their duty to his detriment. 4.The 1st and 2nd respondents opposed the application through ground of opposition dated 10th October 2025. The following grounds have been set out:a.That the application dated 22nd July 2025 has not met the threshold for the grant of the orders sought.b.That the application is misdirected since the 1st respondent has neither failed nor refused to deliberate, verify and/or recommend the compensation of the applicant since the strict procedures stipulated in the Wildlife Conservation and Management Act, 2013 and the Wildlife conservation and Management (Compensation) Regulations, 2017 are ongoing.c.That as it stands, the exparte applicant has no claim pending before the County Compensation committee and her claim has never been deliberated upon by the County Wildlife Conservation and Compensation Committee.d.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 unreasonable delay by the public body. The 1st respondent has not refused and/or delayed in complying with the law in the instant matter.e.That the application fails to demonstrate any specific breach of statutory duty or wrongdoing on the part of the 1st respondent and there is no evidence establishing neglect, refusal or failure to perform any duty as required by the law.f.That the 1st respondent has not abdicated their statutory roles as alleged by the applicant and no evidence has been adduced to support those wild allegations.g.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.h.That the application is misconceived and full of untrue allegations which are not supported by any evidence and therefore should be dismissed forthwith. 5.The 3rd respondent opposed the application vide a replying affidavit sworn by John Ngalia Mwakima, the County Warden, Meru County. 6.He deponed that at the time the application was brought the 1st Respondent had not deliberated on the ex parte Applicant’s claim. That the 1st Respondent has since deliberated on the ex parte Applicant’s claim and awarded Kshs. 64,948.40 which this Honourable Court can only enforce payment for and not Kshs. 137,150/- as sought. 7.Parties filed submissions which I have considered. I find that the following issues arise for determination:a.The nature of an order of mandamus,b.Whether the application offends the determine of ripeness,c.Whether the ex-parte applicant is entitled to the orders sought. 8.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 him or them to do some particular thing therein specified which appertains to his or their office and is in 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 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.” 9.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. 10.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; 11.Section 106 (2) of the Wildlife Conservation and Management Act provides as follows: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. 12.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. This has been confirmed in Republic vs Kenya Vision 2030 Delivery Board (supra) where it was held as follows:“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.” 13.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. In the same case, it was held as follows:“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. In matters involving exercise of judgement and discretion the public officer or public agency can only be directed to take action; it cannot directed in the manner or the particular way the discretion is to be exercised.” 14.From the affidavit by the 3rd respondent, it is apparent that the ex parte applicant’s claim has already been deliberated on by the 1st respondent which is by the body mandated to do so. The ex parte applicant’s claim has been assessed at Ksh. 64,948/=. It was not clear if that amount has been paid. 15.I agree with the 3rd respondent that it is the 1st respondent which has the mandate to assess the claim and recommend payment. This has already happened, meaning that it is the 2nd respondent which now has a mandate to make any payment, as set out under the Act. 16.This court has power i to compel the 2nd respondent to make payment of Ksh. 64,948/= to the ex parte applicant. 17.The applicant sought KSh. 137,150/= but that is not the amount assessed. If not satisfied with the award, the applicant has the right of appeal as set out under section 25(6) of the Act, that is to the National Environment Tribunal and on a second appeal to the Environment and Land Court. 18.Therefore, after considering the application. I grant the following orders:-a.Orders of mandamus against the 2nd respondent to pay the ex parte applicant Ksh, 64,948/=.b.Costs to the ex parte applicant. DATED, SIGNED & DELIVERED AT MERU THIS 8TH DAY OF JUNE, 2026.H.M. NYAGAJUDGE