[2022] KENET 760 (KLR)

HMH v Kenya Wildlife Service (Tribunal Appeal 010 of 2020) [2022] KENET 760 (KLR) (Civ) (12 October 2022) (Judgment)

Neutral citation: [2022] KENET 760 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 010 of 2020

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Vice Chair, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

October 12, 2022

Between

HMH

Appellant

and

Kenya Wildlife Service

Respondent

Judgment

1. This appeal is brought pursuant to the provisions of section 25(6) of the Wildlife Conservation and Management Act No.47 of 2013 (“the Act”) that confers jurisdiction on this Tribunal to hear appeals arising from the decision of the Respondent on claims made under section 25 of the Act with respect to injuries caused by any of the wild animals listed under the third schedule therein.

2. Following a snake bite incident on 22nd March 2015, the appellant, AHM, an eleven year old boy at the time of the snake-bite incident as per the Moyale Sub-County Referral Hospital form, filed a claim to the County Wildlife Conservation and Compensation Committee seeking compensation, in accordance with the procedure set out in law. The claim was rejected though a letter dated 7th October 2019 and the letter informed the Appellant that his claim was rejected due to the inconsistencies in the date of incident indicated in the various claim documentation as records show that victim was attended to in the hospital one month before the incident.

3. Consequently, the Appellant filed this appeal to the Tribunal on 2nd March 2020, through his father and next friend HMH.

4. The grounds of appeal alleged that the appellant had been bitten by poisonous snake and that the committee determining the matter failed to afford him a hearing on his claim or on assessment of damages.

5. The Respondent entered appearance on 3rd August 2020 through the firm of MS Mithega & Kariuki and filed their Reply to the Grounds of Appeal. They denied liability noting to state that their function/ role involves protection, conservation and management of wildlife and does not owe the Appellant any duty of care that is clothed with any right of action for compensation.

6. At the close of the case for the appellants and the respondents all parties were permitted to file written submissions and highlight on the same.

7. The fact that the appellant was bitten by a snake is uncontested. The only issues in dispute are that the Respondent is wrongly enjoined in this suit it does not play any part or role in the compensation process. The second issue being that the dispute resolution mechanisms were not followed.

8. The Respondent submitted that the claim by the Appellant was unfounded and merely asked for dismissal while suggesting that the suit is premature and fatally defective for failure to comply with the dispute settlement procedure under the Wildlife Conservation and Management Act, No.47 of 2013.

9. The Respondent also stated in the submissions that the statutory procedure for dispute settlement provided under the Wildlife Conservation and Management Act, No.47 of 2013 is mandatory and its limits court’s original jurisdiction to hear and determine disputes relating to management, protection and conservation of wildlife.

10. The Respondent’s submissions also urged the court to dismiss the appeal and introduced a new angle to the matter on a preliminary point. In its opinion, they are a separate entity from the Ministerial Wildlife Conservation Compensation Committee (MWCCC) and are erroneously joined in these proceedings.

Determination 11. We have carefully considered the submissions by both parties in this appeal as well as the District committees’ decision appealed from and the testimony of the witnesses during the hearing. In our view, the grounds of appeal raise the following key issues for determinationa.Whether the claim by the appellant against the decision of the committee was sustainable.b.Whether the appellant discharged the burden of proving liability to the required standard.c.If liable, what is the quantum of compensation to be awardedd.Who is to pay this compensatione.What orders should this court makef.Who should bear the costs of the appeal

12. The Kenya Wildlife Service pursuant to Section 25 of the Wildlife Conservation and Management Act of 2013 provides that: “25. Compensation for personal injury or death or damage to property(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.(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.”

13. Following the appellant’s snake bite encounter he filed an appeal to the Marsabit County Wildlife Conservation and Compensation Committee.

14. The Committees modus operandi in handling these claim did not involve giving any claimant an opportunity to be heard or to ventilate his claim.

15. The claimants have raised this as one of the issues in their appeal to show that the committee violated their right to a fair hearing.

16. The manner of proceeding by the Marsabit County Wildlife Conservation and Compensation Committee appears to be one adopted prior to the new Constitution of Kenya2010 or the passage of the Fair Administrative Act, 2015 and carried over to date. It does not meet the threshold for fairness as envisaged by law as the claimant is never given an opportunity to rebut any negative opinion.

17. The Compensation Committee declined the claim owing to reasons that there were inconsistencies in the date of the incident indicated in the various claim documentation as the records allegedly showed that the victim was attended to in hospital one month before the date of the incident.

18. Kenya’s wildlife resources are a valuable heritage for this country and its conservation is paramount. The Respondents and the institutions falling under the Wildlife (Conservation and Management) Act No.47 of 2013 are tasked, by law, to ensure the preservation and management of wildlife. With this responsibility is the rights bestowed on people injured or killed by wildlife. This right is also vital and given statutory backing by the compensation scheme under section 25 of the Act. The manner in which claims for injury or death are handled as a result of wildlife cannot be done causally by the mandated authorities. There must be respect for both wildlife and human life by the organs concerned. Claims have to be dealt with seriously and at the very least within the legal and constitutional threshold of fairness in considering the evidence before it by giving affected persons a chance to be heard and to present any medical evidence they may have to support their claims. In this case the County Wildlife Conservation and Compensation Committee did not meet that minimum threshold when considering this claim.

19. The committees finding that the dates given are inconsistent is not supported by the evidence. The tribunal believes the Respondent’s explanation as stated above isn’t sufficient as the evidence provided by the Appellant indicate that the accident occurred on the 22nd March 2015 and was rushed to the Odda Military Camp the following day on 23rd March 2015 and later during the day transferred to the Moyale Sub-County Referral Hospital.

20. From the evidence we are persuaded that the appellant was bitten by a poisonous snake. The effect of poison resulted in swelling of his left foot. He was first rushed to the Odda military camp and first aid was administered before being referred to the Moyale Sub-County Referral Hospital. On a balance of probability the appellant has laid sufficient evidence to justify a finding that he was bitten by a poisonous proof. Upon discharge of this burden the same shifts to the respondents who did not produce sufficient evidence to displace the proof tendered by the appellants and that the inconsistencies of dates is hereby treated as a technicality and this doesn’t really dispute the fact that he was bitten by a snake.

21. To this extent, the appellant has satisfied the burden of proof that he was bitten by a poisonous snake and was taken to hospital for treatment and later on reported the matter.

22. On quantum, the appellant who was 11 years old at the time of the incident. After the bite he remained traumatized and it clearly shows that the incident appears to have had a lasting impact on him and injuries he sustained did not heal straight away. It was not a minor injury by any stretch of imagination. The tribunal is alive to its powers to recommend an award up to a maximum of Kshs.2 million to the cabinet secretary in respect of snake bite injuries. For the tribunal to exercise its maximum powers under the Act it would have to be satisfied that the gravity of the injury and effect were more severe and life threatening. For instance in the case of a bite with neurotoxins affecting the nervous system or hemotoxins leading to internal and external bleeding we would have no hesitation in recommending a higher figure. In this case, we have found the effect to have a serious lasting effect on the child, and consequently recommend an award of a sum of Kshs.700,000/=.

23. Costs follow the event and are in the discretion of the court. They are awarded to the successful party unless there is good cause why this tribunal should award costs. We will deal with this issue later in the judgment.

24. On the preliminary point we agree with the Respondent submissions that ultimately it is the Compensation Committee who is responsible for compensation and not the Respondent.

25. Pursuant to Section 25(1) (2) and (3) of the Act, the County Wildlife Conservation and Compensation Committee are mandated to hear any claims causing death or injury to persons and upon verifying the claim to submit a recommendation to the Cabinet Secretary. Where the claim is for loss or damage to crops livestock or property, on the other hand, the County Wildlife Conservation and Compensation Committee is to verify the claim under Section 25(4) of the Act and make a recommendation to the Kenya Wildlife Service.

26. The Respondent is only mandated to consider the verified claims with respect to loss or damage to crops livestock or property and not death or injury to human beings which is specifically reserved for the Compensation Committee consideration. From the evidence on record it is apparent that the Kenya Wildlife Service proceeded to associate itself with the Compensation Committee. This was evident from the use of the Kenya Wildlife Service letterhead in communicating the committees determination to the Appellant on 7th October 2019. For a lay person it would be difficult for a lay man to comprehend the distinction between the committee and the Kenya Wildlife Service in such circumstances.

27. Article 159(d) of the Constitution states that:“Justice shall be administered without undue regard to procedural technicalities”

28. In light of the use of the Kenya Wildlife Service letterhead in communicating the committee’s decision it would be unjust to punish a lay person on technicalities of the various organs under the statute when he had been misled into believing that the Kenya Wildlife Service was the proper party making a decision on his claim. Accordingly, it is only fair and proper that the award be borne by the Kenya Wildlife Service

Order For the reasons stated, the Tribunal makes the following orders:a.The appeal against the decision of refusal to recommend an award by the Marsabit County Wildlife Conservation and Compensation Committee and Kenya Wildlife Service is hereby allowed.b.The tribunal recommends to the Cabinet secretary for payment to the appellant of a sum of kshs.700,000/= as compensation for the poisonous snake bitec.As the appellant is a minor the money will be paid to the father as his guardian and next friend to be invested in an interest earning fixed deposit account with a local bank in Marsabit specifically designated for the minor until he reaches the age of majority. Allowances may be made for quarterly periodic withdrawals during the supervening period before the age of majority to provide for his educational fees and medical needs.The parties’ attention is drawn to the right of appeal pursuant to the provisions of Section 25(6) of the Wildlife (Conservation and Management) Act No.47 of 2013

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 12TH DAY OF OCTOBER 2022. Mohammed S. Balala ……....ChairpersonChristine Kipsang ……Vice ChairpersonBahati Mwamuye ….……………MemberWaithaka Ngaruiya ……………..MemberKariuki Muigua …………………Member