https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13128

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E051 OF 2024** **D K RONO, J** **18 JUNE 2026** **BETWEEN** **JOANINA GITURA ELIJAH.……………………………...APPELLANT** **AND** **KENYA WILDLIFE SERVICE………….………………RESPONDENT** *(Being an appeal against the judgement of the Hon. L.W Maina (RM/Adjudicator) in Meru Sccc E018 of 2024 delivered on 19/03/2024)* **JUDGMENT** **Background** 1. The Background of this appeal arose from a claim filed by the Joanina Gitura Elijah (“the Appellant”) in the Small Claims Court in Meru against Kenya Wildlife Service (“the Respondent”) herein seeking a sum of Kshs 1 000 000 on the basis that a herd of rogue elephants managed by the Respondent invaded her property causing damage. 2. The Appellant contended that she was the registered owner of the property where the crops were destroyed by the animals, the property being P/NO.5572 NGAREMARA/GAMBELA ADJ.SECTION. 3. The Respondent on its part in the proceedings in the lower court and in its pleadings argued that the Appellant was negligent given that the crops were exposed and unattended and that elephants are migratory animals and therefor blamed the Appellant. 4. The Appellant wholly laid blame on the Respondent and claimed that the Respondent had a role of ensuring that wild animals were in the correct reserves and not invade the farmlands as they did on 8 June 2021, the Appellant further stated that she had full guard of her farm and had employed a watchman, fenced the property with barbed wire and had a domestic dog on site. The Appellant was of the view that the Respondent was wholly to blame for its loss. 5. The Appellant lodged its claim before the lower court for special damages amounting to Kshs 1 076 000 being the sum total of the cost of the crops damaged by the elephants. 6. The Appellant lodged her claim before the lower court as against the Respondent where it was heard and judgement delivered on 19 March 2024 dismissing the claim with costs to the Respondent. 7. The Appellant being aggrieved by the judgement rendered on 19 March 2024 filed a memorandum of appeal dated 5April 2024 and filed on even date. 8. The Appellant’s appeal is premised on the Appellant’s memorandum of appeal dated 5 April 2024 and the record of appeal dated 25 July 2024, where the Appellant raised the following grounds: 1. The learned trial magistrate/adjudicator erred in law by dismissing the claimant’s claim brought vide statement of claim dated 21 February 2024; 2. The learned trial magistrate erred in law by finding that the claimant had not proven special damages being the value of crop damaged despite there being a verification form confirming that indeed crops were damages; 3. The learned trial magistrate/adjudicator erred in law by finding that the claimant had proven her case on balance of probability but later went ahead to dismiss the claim with cost; 4. The learned trial magistrate erred in law by apportioning liability at 80:20 but still went ahead to dismiss the claimant's claim; 5. The learned trial magistrate/adjudicator erred in law by disregarding the primary evidence produced by the claimant being the verification forms for different crops damaged and focused on the summary report which had errors where the agricultural officer confirmed in case there was any error in the summary report the court should revert back to the primary evidence being the verification forms for various crops damaged; 6. The learned trial magistrate/adjudicator erred in law by visiting the mistakes of the agricultural officer on the appellant herein in lifting of the prices of various crops which at the end made the trial magistrate to arrive at an erroneous decision of dismissing the claim brought to court vide statement of claim dated 21 February 2024; 7. That the honourable trial magistrate/adjudicator misdirected himself as to the facts of the case thus arriving at an erroneous decision. 8. That the Honourable trial magistrate's judgment as a whole is not supported by the evidence that was tendered in court by the parties. **Parties’ submissions** 1. The Appellant’s submissions are premised on the Appellant’s submissions dated 4 November 2025 while the Respondent’s submissions are premised on the Respondent’s submissions dated 1 September 2025. 2. The court will not rehash the entirety of the submissions made by the parties but abridged highlight for context. **Appellant’s Submissions** 1. The Appellant submitted that the learned adjudicator erred in dismissing the claim despite evidence establishing crop damage and loss. It was contended by the Appellant that the decision was unsupported by the evidence and founded on a misapprehension of the facts and applicable law. 2. The Appellant argued that the trial court wrongly rejected the claim for special damages notwithstanding the production of crop verification forms confirming the damage suffered. It was submitted that the court improperly relied on a summary report containing admitted errors instead of the primary verification documents. 3. The Appellant further submitted that the agricultural officer explained the discrepancies in the summary report and confirmed that the verification forms were the correct source documents. Accordingly, the trial court was faulted for disregarding both the documentary and expert evidence, which remained uncontroverted. The Appellant placed reliance was placed on *Parvin Singh Dhalay v Republic* [1997] KECA 379 (KLR) for the proposition that expert evidence, though not binding, ought to be given due consideration. 4. The Appellant also contended that the trial court contradicted itself by finding the Respondent 80 per cent liable for the destruction of the crops yet dismissing the suit in its entirety. It was argued that having found liability, the court ought to have granted an appropriate remedy, consistent with the principle that a wrong should not be without a remedy, as affirmed in *Kenya Wildlife Service v Awuor* [2023] KEHC 3721 (KLR) and *Kenya Wildlife Service v Joseph Musyoki Kalonzo* [2017] KECA 234 (KLR). 5. The Appellant urged this court, as a first appellate court, to re-evaluate the evidence in accordance with *Selle v Associated Motor Boat Co.* [1968] EA 123 set aside the impugned judgment, enter judgment in the Appellant’s favour, reassess liability where necessary, and award the costs of both the trial and the appeal. **Respondent’s Submissions** 1. The Respondent identified four issues for determination: whether the Small Claims Court had jurisdiction; whether the appeal met the threshold under s 38 of the Small Claims Court Act; whether special damages were strictly proved; and who should bear the costs of the appeal. 2. On jurisdiction, the Respondent submitted that the issue may be raised at any stage of proceedings, including on appeal, as it goes to the competence of the court. The Respondent relied on *Phoenix of E.A. Assurance Company Limited v Simeon Muruchi Thiga t/a Newspaper Service* [2019] KECA 770 (KLR)for the principle that a court cannot assume jurisdiction where none exists in law. 3. It was further contended that the Small Claims Court lacked pecuniary jurisdiction since the Appellant's claim for special damages amounted to Kshs 1 076 000, exceeding the Kshs 1 000 000 limit prescribed under s 12(3) of the Small Claims Court Act. The Respondent argued that the excess could not be waived so as to confer jurisdiction upon the court. 4. In support of that position, the Respondent relied on *Joseph Muthee Kamau & another v David Mwangi Gichuru & Another* [2013] KECA 284 (KLR)and *Macharia & another v Kenya Commercial Bank Ltd & 2 others* [2012] KESC 8 (KLR)for the proposition that jurisdiction flows from the Constitution or statute and that, proceedings conducted without jurisdiction are a nullity. 5. The Respondent further submitted that disputes relating to wildlife damage fall within the mandate of the County Wildlife Conservation and Compensation Committee established under the Wildlife Conservation and Management Act. It was argued that the Appellant ought to have first pursued the statutory compensation mechanism before approaching the court. 6. The Respondent relied on the decisions in *Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome)* [2024] KECA 1127 (KLR) *and Peter Muturi Njuguna v Kenya Wildlife Service* [2017] KECA 42 (KLR), as well as *Maurice M. Munyao & 148 others v Albert Chaurembo Mumba & 8 others* [2016] KEELRC 1092 (KLR) and *NGOs Co-ordination Board v EG & 5 others* [2023] KESC 17 (KLR), to argue that the Appellant had not exhausted the avenues provided for dispute resolution and the requirement that statutory dispute-resolution mechanisms be exhausted before recourse to the courts. 7. The Respondent argued that having already lodged a claim before the County Wildlife Conservation and Compensation Committee, the Appellant ought to have pursued that process to completion. The institution of both the administrative claim and the suit was said to constitute an abuse of process and expose the Respondent to double liability. In that regard, the Respondent sought the aid of *Kenya Wildlife Service v Awuor* [2023] KEHC 3721 (KLR). 8. Regarding s 38 of the Small Claims Court Act, the Respondent submitted that the appeal raised no question of law but merely challenged the trial court’s factual findings concerning inconsistencies between the crop damage assessment report and the verification forms. It was therefore argued that the appeal fell outside the permissible scope of appellate intervention. 9. On special damages, the Respondent contended that the claim was not strictly proved because of material discrepancies between the assessment report and the verification forms. It was submitted that the agricultural officer failed to satisfactorily explain those inconsistencies, thereby rendering the evidence unreliable. 10. The Respondent further argued that expert evidence is not binding on a court and may be rejected where it is inconsistent, speculative or unsupported by the evidence. The Respondent referred the court to the decisions in *Wanjiku & 7 others v Kamau & 2 others* [2022] KEELC 14415 (KLR), *Stephen Kinini Wang'ondu v The Ark Limited* [2016] KEHC 3449 (KLR) andKagina v Kagina & 2 others *[2023] KESC 54 (KLR)*in support of the argument that a court is not bound to accept expert evidence where it finds such evidence to be unreliable or inconsistent with the other evidence on record 11. The Respondent therefore urged the court to find that the appeal lacked merit, uphold the decision of the trial court, and dismiss the appeal with costs pursuant to s 27 of the Civil Procedure Act. **Analysis and determination** 1. Having considered the memorandum of appeal, the record and the submissions, the following issues arise for determination: 1. Whether the Small Claims Court had jurisdiction to hear and determine the dispute. 2. Whether the instant appeal raises questions of law within the meaning of s 38 of the Small Claims Court Act. 3. Whether the learned adjudicator erred in law in dismissing the Appellant’s claim for special damages notwithstanding the findings on liability and the expert evidence tendered before the court. **Whether the Small Claims Court had jurisdiction to hear and determine the dispute** 1. The Respondent challenged the jurisdiction of the Small Claims Court on two fronts. First, it was contended that the claim exceeded the pecuniary jurisdiction donated under s 12(3) of the Small Claims Court Act, which limits the court’s jurisdiction to claims not exceeding Kshs. 1,000,000. Secondly, the Respondent argued that disputes relating to wildlife compensation fall within the mandate of the County Wildlife Conservation and Compensation Committee established under the Wildlife Conservation and Management Act and therefore the Appellant ought first to have exhausted the statutory dispute resolution mechanism before approaching the court. 2. The Respondent relied on *Phoenix of E.A. Assurance Company Limited v Simeon Muruchi Thiga t/a Newspaper Service* [2019] KECA 770 (KLR) and *Macharia & another v Kenya Commercial Bank Ltd & 2 others* [2012] KESC 8 (KLR) for the settled principle that jurisdiction flows from the Constitution or statute and that a court acting without jurisdiction acts in vain. Reliance was also placed on *Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome)* [2024] KECA 1127 (KLR) and *Peter Muturi Njuguna v Kenya Wildlife Service* [2017] KECA 42 (KLR)for the proposition that wildlife compensation claims ought in the first instance to be lodged before the statutory committee established under the Wildlife Conservation and Management Act. 3. This court is alive to the settled legal principle that jurisdiction is everything and without it a court must down its tools, as was stated by the Court of Appeal in *Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd* [1989] KECA 48 (KLR). Equally, the question of jurisdiction may be raised at any stage of proceedings, including on appeal. 4. However, with regard to pecuniary jurisdiction, the record demonstrates that although the initial computation of special damages exceeded Kshs 1 000 000, the Appellant expressly limited and waived any amount above the statutory threshold before the matter proceeded for hearing. 5. In the view of this court, once the claim before the Small Claims Court was expressly confined within the statutory ceiling, the court was properly seized of pecuniary jurisdiction. A waiver of the excess claim did not amount to conferring jurisdiction by consent, but rather constituted an abandonment of the amount beyond the jurisdictional limit. 6. On the issue of exhaustion, this court notes that the Appellant’s claim before the trial court was essentially a claim founded on negligence and compensation for destruction of crops. Whereas s 25 of the Wildlife Conservation and Management Act establishes a statutory compensation mechanism, the Court of Appeal has consistently held that the doctrine of exhaustion is not absolute and may yield where the dispute raises issues falling properly within the jurisdiction of the ordinary courts or where the alternative mechanism is inadequate or ineffective. See *Moffat Kamau & 9 others v Aelous (K) Ltd & 9 others* [2016] KEELC 565 (KLR). 7. Further, the Respondent did not demonstrate that the statutory process had culminated in a determination capable of ousting the jurisdiction of the court, nor was there evidence that the preliminary objection on jurisdiction had been raised and canvassed before the trial court. In the premises, this Court is not persuaded that the proceedings before the Small Claims Court were a nullity for want of jurisdiction. **Whether the instant appeal raises questions of law within the meaning of s 38 of the Small Claims Court Act** 1. The Respondent submitted that the present appeal offends s 38 of the Small Claims Court Act because it merely challenges factual findings made by the learned adjudicator regarding inconsistencies between the crop verification forms and the summary assessment report. According to the Respondent, the appeal invites this court to re-evaluate factual discrepancies, which falls outside the limited appellate jurisdiction donated under s 38 of the Act. 2. The Appellant, however, submitted that the appeal raises pure questions of law concerning the admissibility, probative value and treatment of expert evidence. The Appellant maintained that the learned adjudicator misdirected herself in law by disregarding primary documentary evidence and by failing to accord due weight to uncontroverted expert testimony. 3. Section 38 of the Small Claims Court Act limits appeals from the Small Claims Court to matters of law only. The distinction between matters of law and matters of fact has been considered in numerous decisions of the superior courts**.** In the instant matter, the appeal transcends a mere invitation to reassess factual inconsistencies in documentary evidence. 4. The gravamen of the appeal is whether the learned adjudicator properly applied the legal principles governing proof of special damages, the evidentiary value of expert testimony, and the treatment of primary documentary evidence vis-à-vis secondary summaries. Those are, in the view of this court, questions of law properly falling within the ambit of s 38 of the Small Claims Court Act. 5. Moreover, the Appellant has challenged the internal consistency of the judgment itself, particularly the propriety of apportioning liability at 80:20 in favour of the Appellant while simultaneously dismissing the suit in its entirety. Whether such a finding is legally sustainable is plainly a question of law. Consequently, this court finds that the appeal is competently before it and satisfies the threshold prescribed under s 38 of the Act. **Whether the learned adjudicator erred in law in dismissing the Appellant’s claim for special damages notwithstanding the findings on liability and the expert evidence tendered before the court** 1. The Appellant submitted that the learned adjudicator erred in law by disregarding the crop verification forms which constituted the primary evidence of crop destruction and instead relying on a summary report that admittedly contained transcription errors. The Appellant further contended that the agricultural officer expressly clarified the discrepancies and advised the court that the verification forms should prevail in the event of inconsistency. 2. The Appellant further submitted that the expert evidence tendered by the agricultural officer remained uncontroverted since the Respondent did not call any contrary expert evidence. The Respondent, on the other hand, maintained that the discrepancies between the assessment report and the verification forms rendered the evidence unreliable and incapable of sustaining an award of special damages. 3. The Respondent further argued that expert evidence is merely advisory in nature and may properly be rejected where it is inconsistent or irrational. Reliance was placed on *Stephen Kinini Wang'ondu v The Ark Limited* [2016] KEHC 3449 (KLR). 4. This court agrees with the Respondent that special damages must not only be specifically pleaded but must also be strictly proved. That principle has long been settled by the Court of Appeal in*Hahn v Singh* [1985] KECA 129 (KLR). However, strict proof does not mean proof beyond all possibility of genuine error. The court must evaluate whether, taken as a whole, the evidence establishes the loss claimed on a balance of probabilities. 5. Having analysed and re-evaluated the totality of the evidence I find and hold that Appellant was able to demonstrate by the evidence tendered by the agricultural officer the damage that it suffered, the only challenge which arose was the disparity between the primary documents and the final report which the agricultural officer explained to have happened during transposition of the figures to the final report. The agricultural officer having explained the discrepancy the trial court ought not have found difficulty in holding that the claim had been proven to the required standard. 6. In the final analysis, I find and hold that the adjudicator erred in holding that the Appellant had not proven special damages in the face of the evidence on record and the explanation tendered by the agricultural officer. Consequently, this courts sets aside the order dismissing the claim and substitute with an order allowing the claim in the sum of Kshs 1 000 000 as pleaded in the statement of the claim. 7. I am minded that generally special damages ought not be subjected to contribution but due to the unique circumstances of this case, this amount shall be subject to contribution of 20 percent as determined by the trial court the question of liability not having been appealed against by the Appellant. 8. The Appellant is successful. He deserves the costs both in this court and the court below: In the circumstances, the Appellant shall have costs of Kshs 45 000 for this appeal and also shall have costs in the Small Claims Court to be assessed. **Determination** 1. I therefore make the following orders: 1. Judgement on Liability in the ratio of 80:20 in favour of the Appellant is upheld; 2. The Judgement dismissing the Appellant’s claim in the lower court is set aside and judgement entered in favour of the Appellant in the sum of Kshs 1 000 000 subject to 20 percent contribution making a total of Kshs 800 000; 3. Costs of Kshs 45 000 to the Appellant; 4. The Appellant shall have costs in the court below; 5. 30 days stay of execution. 2. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT MERU THIS 18th DAY OF JUNE 2026. D.K RONO JUDGE