[2022] KENET 711 (KLR)

Issack v Kenya Wildlife Service (Tribunal Appeal 55 of 2020) [2022] KENET 711 (KLR) (Environment and Land) (28 September 2022) (Ruling)

Neutral citation: [2022] KENET 711 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Environment and Land

Tribunal Appeal 55 of 2020

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

September 28, 2022

Between

Abdinoor Kulow Issack

Appellant

and

Kenya Wildlife Service

Respondent

Ruling

Ruling on Respondent’s Preliminary Objection Background to the Dispute 1. The Appellant instituted this appeal vide a Notice of Appeal filed on December 17, 2020 under Rule 4 (1) of the National Environment Tribunal Procedure Rules. The appeal is against the decision of the Respondent, Kenya Wildlife Service, to reject the Appellant’s claim for compensation.

2. The appeal emanates from the death of one Shueba Abdinoor Kulow, a five year old, who allegedly died due to poisoning owing to a snake bite in Moyale. The Appellant contends that the reason given by the Respondent as a basis for rejection of his claim for compensation is invalid and insincere. The Appellant thus seeks full compensation from the Respondent according to the rates stipulated in the relevant policy and law.

Respondent’s Reply 3. The Respondent responded to the appeal vide a Reply to Grounds of Appeal dated October 4, 2021 where at paragraph 3, it raised a Preliminary Objection to the Appeal filed on December 17, 2020 on the following grounds:a.That the Appellant lacks locus standi to represent the deceased as he is not the guardian ad litem as provided under Order 37 Rule 1 (f), 12,16 and Order 50 of the Civil Procedure Rules.b.The Appeal is statute barred by dint of Section 25 (6) of the Wildlife Conservation and Management Act , 2013. c.The Honorable Tribunal lacks jurisdiction to entertain an appeal that is time barred; andd.The Appeal is a nullity ab initio and should be struck out in limine.

4. On this basis, the Respondent prays that the Appellant’s appeal be dismissed with costs.

Submissions 5. The Appellant did not file written submissions in respect of the Preliminary Objection.

6. On the other hand, the Respondent filed written submissions dated November 22, 2021. It submits that the Appeal before this Honorable Tribunal is not based on the documents filed before the Compensation Committee but those obtained after the decision of the Compensation Committee such as the post mortem report and hence the appeal is on its own incompetent and a nullity ab initio.

7. The Respondent raised the following issues for determination:a.Whether the appellant has locus standi to sue or institute this suit on behalf of the deceased and whether the proceedings before the Tribunal are a nullity;b.Whether the Appeal is time barred by dint of Section 25(6) of the Wildlife Conservation and Management Act; andc.Whether the Honorable Tribunal has jurisdiction to entertain an appeal that is time barred.

8. On the first issue for determination, the Respondent cites Black’s Law dictionary,9th Edition at page 1026 where it definedlocus standi as:“the right to bring an action or to be heard in a given forum.”

9. The Respondent further cites the case of Alfred Njau & 5 Others v City Council of Nairobi (1983) eKLR which defined the term Locus standi as follows:The term locus standi means a right to appear in court and, conversely, as is stated inJowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.

10. The Respondent cited Section 25 of the Wildlife Conservation and Management Act (No 47 of 2013) which provides: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.

11. It is the Respondent’s submission that pursuant to the above section, only a personal representative, successor, or assign, in case of a deceased person, may launch a claim to or appeal the decision of the Compensation Committee.

12. The Respondent cites Order 32 Rule 3 of the Civil Procedure Rules, 2010which provides that an order for the appointment of guardian ad litem may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

13. It further cites the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR where the court observed that:“Further the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.In this matter therefore the Respondent lacked the requisite locus standi to institute and/or maintain the suit. The result is that all the proceedings before the trial court were instituted and maintained by a person who lacked the legal capacity to do so. They are indeed a nullity and as such lack the legal leg to stand on.”

14. The Respondent submits that from the documentation before this Honorable Tribunal, the Appellant has not provided any evidence to show that he is the personal representative of the estate of the deceased or that he has obtained GrantAd Litem to sue on behalf of the estate of the deceased. The Appellant is therefore not the successor or assignee of the deceased. The Respondent cites the decision in Civil Appeal 52 of 1991: Mutisya (suing as the personal representative to the estate of Nzomo Mutisya (deceased)) v KB Shaghani & Sons Limited & Anotherin support of its case.

15. The Respondent further submits that the Appellant does not have the requisite authority to sue on behalf of the deceased’s estate as required under section 25 (1) of the Wildlife Conservation and Management Act (No 47 of 2013) and it cites the cases of Macfoy v United Africa Co Ltd(1961)3 ALL ER, 1169 and In Omega Enteprises (Kenya) LimitedvsKenya Tourist Development Corporation & 2 Others Ca 59 Of 1993 which was cited with approval in Titus Kiraguv jackson Mugo Mathai & Another (2013) eKLR in support of its case.

16. On the second issue for determination, the Respondent cites Section 25 (6) of the wildlife Conservation and Management Act (No 47 of 2013) which provides: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.

17. The Respondent submits that pursuant to the above provision, there is no further provision in the Act made to envisage enlargement of time in the event that an appeal is filed out of the request period.

18. The Respondent further submits that the appeal has not been filed within thirty (30) days of the decisions of the Compensation Committee but over a year after the decision and it is clear from the above section that lodging an appeal to the Honorable Tribunal outside of the prescribed statutory time would render such appeal null and void.

19. The Respondent urges the Tribunal to dismiss the same forthwith with costs.

20. The Respondent submits that from the provisions it has highlighted of the Wildlife Conservation and Management Act , 2013, it is evident that this Honorable Tribunal’s jurisdiction to determine appeals arises from the Act.

21. It cites Black’s Law Dictionary, 9th Edition, which defines jurisdiction as the court’s power to entertain, hear and determine a dispute before it.

22. It further cites the case of Beatrice Mwiakli Musyoka vs Kenya Wildlife Service Net Appeal No 03 of 2021 where this Honourable Tribunal in their ruling dated July 7, 2021 opined that“Nowhere in either that Act or any other written law is this tribunal empowered to extend the time within which an appeal under Section 25 of the Wildlife Compensation and Management Act of 2013 should be filed.” The Tribunal noted that the appeal should have been filed on or before the lapse of thirty days from the date of the decision of the Committee and therefore dismissed the appeal as being time barred by dint of section 25 (6) of the Wildlife Compensation and Management Act, 2013.

23. The Respondent further cites the cases of The Owners of Motor Vessel Lilian S v Caltex Oil Kenya Ltd (1989) 1 KLR and Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 Others (2013) eKLR on jurisdiction in support of its case.

24. The Respondent submits that the jurisdiction conferred by the Wildlife Conservation and Management Act , 2013 upon this Tribunal is to entertain appeals filed before it within thirty days after the decision of the Compensation Committee. It further submits that the second appeal does not meet the threshold and ought to be dismissed.

25. The Respondent contends that the pleadings before this Honourable Tribunal are fatally defective and incurable by amendment having been instituted without locus. It further submits that the Honourable Tribunal has no jurisdiction to entertain the same having been instituted contrary to the law.

26. It is the submission of the Respondent that that it would be a nullity in law and a practice ultra viresif this Honourable Tribunal conferred upon itself jurisdiction to determine this Appeal.

27. On this basis, the Respondent submits that the Appeal before this Honourable Tribunal is therefore null ab initio having been instituted out of time and consequently stripping the Honourable Tribunal of the Jurisdiction to deliberate on it and it is for such reasons that it prays that the Appeal ought to be dismissed with costs.

Issues for Determination 28. The Tribunal notes that the Respondent in its written submissions dated November 22, 2021 indicates that its written submissions are in respect to the Reply to the Grounds of Appeal dated August 13, 2021 yet the Reply to the Grounds of Appeal before this Tribunal are dated October 4, 2021 and not August 13, 2021.

29. The Tribunal also notes that the Respondent in its written submissions dated November 22, 2021 submits that the Appellant being dissatisfied with the decision of the County Wildlife Compensation Committee approached the Honourable Tribunal by way of Appeal dated December 15, 2020. However, the Notice of Appeal that was filed before the Tribunal is not dated but it was filed on December 17, 2020.

30. Having considered the Respondent’s Preliminary Objection which was raised at paragraph 3 of its Reply to Grounds of Appeal dated October 4, 2021 and the Respondent’s written submissions in respect of its Preliminary Objection, the Tribunal has identified the following issues as arising from the Preliminary Objection:a.Whether the appeal is time barred;b.Whether this Tribunal has jurisdiction; andc.Whether the Appellant has the locus standi to bring this appeal

Whether the appeal is time barred 31. Section 25(6) of the Wildlife Conservation and Management Act (No 47 of 2013) provides: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 (emphasis ours).

32. The Appellant lodged his application to the County Wildlife Compensation Committee by way of a Compensation Claim Form seeking to be compensated for the death of the late Shueba Abdinoor Kulow. The County Wildlife Compensation Committee replied by way of a letter dated October 7, 2019 rejecting the claim on grounds that there was no post mortem report that was produced to ascertain the cause of death and the death was registered a year before it occurred. The letter was forwarded to the Senior Warden Marsabit National Park/ Reserve on January 8, 2020. and the letter was received on January 27, 2020 by the District Warden Kenya Wildlife Service as evidenced by the stamps on the copy of the letter.

33. The Respondent submits, at Paragraph 3 of its written submissions, that the Appellant received the decision of the Compensation Committee on June 8, 2020. It is not clear where the Respondent got this information because it has not furnished any evidence to prove this fact.

34. A Preliminary Objection should consist of points of law that do not need to be proved by way of evidence. The Tribunal would have to receive evidence from the parties in order to determine when the Appellant received the letter dated October 7, 2019. Therefore, the Tribunal cannot make a finding at this point whether or not the Appeal is time barred.

Whether this Tribunal has jurisdiction 35. This Tribunal in Tribunal Appeal Net 2 of 2018, Albert Mumma in his Capacity as Chairman Langata District Association v Director General - National Environmental Management Authority [NEMA] & 2 others; Seventh Day Adventist Church (EA) Limited (Interested Party) held that:“It is established practice that where the jurisdiction of the Tribunal is called into question then the first order of business is for the tribunal to make a determination on that issue before rendering its decision on the main points of the appeal.”

36. Nyarangi JA while citing Words and Phrases Legally defined in Owners of the Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Limited held that:“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake both of these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

37. Likewise, in Samuel Kamau Macharia vs Kenya Commercial Bank & 2 Others, Civil Appl No 2 of 2011, The Supreme Court of Kenya observed that:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”

38. The Respondent submits that since the Appeal before this Tribunal is time barred, this Honourable Tribunal does not have jurisdiction to hear the appeal since it cannot extend the time within which an appeal can be lodged.

39. We have found that it is not possible to make a determination at this juncture, whether or not this appeal is time barred. This is because we will require to receive evidence demonstrating when the Appellant received the letter dated October 7, 2019 communicating the Respondent’s decision to the Appellant in order to enable us to compute the time within which the appeal should have been lodged.

40. Consequently, we find that we have jurisdiction to hear and determine this appeal.

Whether the Appellant has locus standi to bring this appeal 41. The Respondent contends that from the documentation before this Tribunal the Appellant has not provided evidence to show that he is the personal representative of the deceased or that he obtained grant ad litem (sic) to sue on behalf of the deceased.

42. We reiterate the point that a Preliminary Objection must be comprised of points of law that need no argument or production of evidence. While the Appellant has not attached a grant of letters of administration or a grant of letter of administration ad litem, the Appellant is still at liberty to file further documents in support of his appeal before the appeal is set down for hearing. In any case, the Appellant has not made an admission that he has not taken out the relevant grant to enable him to bring these proceedings. Furthermore, the Appellant’s Claim before the Ministerial Wildlife Conservation and Compensation Committee was not rejected on account of lack of a relevant grant of letters of administration (or ad litem). Instead, other reasons were proffered by the Committee.

43. We are of the view that this too is a point that can only be determined upon receiving evidence from both parties and considering the appeal on merit.

Orders 44. For the above reasons, the Tribunal makes the following orders:a.The Respondent’s Preliminary Objection is hereby dismissed;b.The Appeal shall proceed to be heard on merit; andc.Each party to bear their own costs.The parties’ attention is drawn to the provisions of Section 130 of the EMCA.

DATED AT NAIROBI THIS 28TH DAY OF SEPTEMBER 2022MOHAMMED S BALALA………………….CHAIRPERSONCHRISTINE KIPSANG………………………….….MEMBERBAHATI MWAMUYE…………………………….....MEMBERWAITHAKA NGARUIYA…………………….……MEMBERKARIUKI MUIGUA…………………………………MEMBER