https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8137

Kamau v Kenya Wildlife Service (Civil Appeal E011 of 2024) [2026] KEHC 8137 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 8137 (KLR) Republic of Kenya In the High Court at Nanyuki Civil Appeal E011 of 2024 AK Ndung'u, J May 22, 2026 Between John Irungu Kamau Appellant and Kenya Wildlife Service Respondent (Being an Appeal from the Judgment and Decree in Rumuruti SPMCC E009 of 2023 delivered by Hon. E. Ngigi (SPM) on 28th March 2024) Judgment 1.This Appeal arises from the Judgement and determination in Rumuruti SPMCC No. E009 of 2023 where the Appellant filed a plaint dated 7th July 2023 seeking the following orders;1.Special damages for Kshs. 266,500/-2.General Damages for nuisance. 2.The Appellant’s case was that on 25th October 2022, wildlife In the form of a herd of elephants entered into the Plaintiffs farm situated within the suit property and severely destroyed the mature maize crops growing thereon by way of grazing, trampling and uprooting the same, as a result of which over three acres of mature maize crops were completely destroyed and the Plaintiff suffered loss and damage. The Appellant contended that the aforesaid acts were occasioned by breach of statutory duty owed to the Plaintiff on the part of the Defendant and proceeded to lay down the particulars of breach of duty. 3.The respondent, then the defendant, filed a statement of defence dated 20th September 2023 where it denied all the allegations in the plaint and urged that the defendant was the sole author of the alleged misfortune, and proceeded to list the particulars of negligence on the part of the Plaintiff. 4.The Appellant filed a reply to the statement of defence dated 2nd October 2023 where he equally denied the contents of the statement of defence, urging that it contained mere denials, and pleading with the court to strike out the same. 5.The matter then proceeded to full hearing and upon considering the merits of the case, the trial court dismissed the suit with costs. 6.Being dissatisfied with the decision, the appellant instituted the present appeal vide a Memorandum of Appeal dated 24th April 2024 premised on the following grounds1.That the learned trial Magistrate erred in both law and in fact in dismissing the Appellant’s case when the same was meritorious.2.That the learned trial Magistrate erred in both law and in fact and thus occasioned grave miscarriage of justice to the Appellant in finding that the Appellant had not proved his case on a balance of probabilities when there existed overwhelming evidence in favour of the Appellant's case.3.That the learned trial Magistrate misdirected himself on the law and fact and fell into grave error in finding that there the Appellant did not prove that elephants had invaded his land when there existed overwhelming uncontroverted evidence to that effect.4.That the learned trial Magistrate misdirected himself on the law and fact and fell into grave error in finding that the Appellant did not prove special damages claimed when there existed overwhelming uncontroverted evidence to that effect.5.That the learned trial Magistrate erred in both law and in fact and thus occasioned grave miscarriage of justice to the Appellant in dismissing the report the agricultural officer without proper grounds.6.That the learned trial Magistrate erred in law and fact in placing undue consideration on irrelevant and extraneousness matters thereby arriving at an erroneous decision that resulted In unnecessary hardship and grave prejudice as against the Appellant.7.That the learned trial Magistrate erred in law and fact and manifested immense bias, vindictiveness and malice by completely disregarding the evidence produced by the Appellant and instead conjured up his own evidence with the sole intention of unjustly dismissing the Appellant’s case.8.That the trial Magistrate’s judgement in this matter was unjust, oppressive and not founded on sound principals of the law or otherwise. 7.The appeal was canvassed by way of written submissions. The appellant filed submissions dated 15th July 2025 through the firm of Messrs Wanjira Mwaniki & Co Advocates whereas the Respondent filed submissions dated 17th June 2025 through Advocate Leon Kaliso. Appellants’ submissions 8.Learned Counsel for the Appellant submitted that the issue now arising for determination is whether the appellant proved his case on a balance of probability. He urged that the degree of proof on a balance of probability has been variously expounded by different courts and scholars, citing the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, and James Muniu Mucheru v National Bank of Kenya Ltd C.A Civil Appeal No. 365 of 2017 [2019] eKLR in this regard. Counsel urged that the court found that the Appellant had not proved two issues; 1) that it was indeed the elephants that invaded the Appellant’s land; and 2) That the special damages claimed were not proved. 9.Counsel posited that the first issue, PW1 himself testified that he was present and he saw the elephants invade his land. That he in fact took pictures and a video that was however not produced in court. PW2 also testified that when he visited the scene, he found hoof-steps that were synonymous with those of an elephant and in addition, there were animal droppings belonging to elephants. There was no other evidence led to show that the animals in question could have been anything other than elephants. The Respondent itself did not supply evidence to the contrary. In fact, it should be noted that the issue of the elephant invasion was reported first to the police station vide OB No. 07/15/11/2022 and a further report was made at the offices of the Respondent on 15/11/2022 and the relevant forms were filled by their officials. 10.That DW1 in her testimony confirmed that these forms including PExh.4 (which is an attachment to P. Exh. 3) emanated from their offices. That on page 1 of P. Exh 4, it is well indicated that the animal responsible is elephants and on page 2 of the same document, it is duly executed by a KWS officer by the name Joseph M. Gikonyo. DW1 also confirmed that after the report was made, they prepared their own report regarding the incident and to confirm his allegations but which report was never produced in court. 11.Consequently, he urged, they cannot therefore come to court and allege that the Appellant’s land was not invaded by elephants without any evidence. The results of the said report would have proved whether or not the Claimant’s allegations are true. The fact that they withheld the report from the court can only be interpreted in favour of the Appellant. 12.Counsel posited that having established that the appellant’s land was indeed invaded by elephants, Counsel submitted that the next question is whether the Appellant proved the loss suffered by him as a result of the said invasion. The Appellant produced a report by the agricultural officer dated 13th November, 2022 which shows calculations on the crops destroyed. It was his evidence that from his ground assessment it showed that up to 95% of the maize had been destroyed. He further assessed that the expected yield per acre would have been 18 bags per acre and therefore for 3 acres, this would be expected to yield approximately 54 bags expected to be sold at Kshs. 5,000/- thus amounting to Kshs. 270,000/- multiplied by 95% gave a loss assessment figure of Kshs. 256,000/-. 13.According to him, this is the damage that the Appellant suffered for the crops that were destroyed at the prevailing market value. Counsel pointed out that the defence and the trial court faulted the report on the basis that the figures arrived at in cross-examination did not match to a tee those in his report. During cross examination, PW2 was asked how much spacing is usually there between maize stems and he stated they are usually planted in spaces of 90cm by 60 cm which means that this calculated against a measurement of 40,468,564cm2 being the normal measurements of an acre would result to 7,494 stems. 14.On the other hand, 500 stems would fill one bag of maize so based on these off-his-head measurements, it shows that one acre would result into 14.988 bags of maize and for 3 acres it would be 44.964 bags. If multiplied by Kshs. 5,000/- per bag at 95% crop destruction the same would result into a sum of Kshs. 213,579/-. However, it should be remembered that this was a sum that arrived at using very abstract figures where PW2 was asked to make assumptions and come up with a solution while on his feet. On the other hand, he explained that his calculations on his report were not based on abstract figures but on actual assessment on the ground upon which the final result was arrived at. It was therefore grossly in error for the court to arbitrarily take these abstract figures and turn them into the main report while there was an actual report supplied to the court properly prepared using the relevant scientific method. That PW2 in giving the figures he gave in court was merely defending his report and from the look of things, he did a good job of it because its essence his court figures were well within range to his report. In any event, the trial court then ought to have relied on this latter figure if it was convinced the earlier one was not properly defended instead of completely disregarding the report without good grounds. 15.Counsel submitted that the court failed to take into consideration that the spacing of 90cm by 60cm given stated by PW2 is not necessarily used by local subsistence farmers who do not use measuring tapes while planting. In addition, that most farmers do not necessarily plan a single maize stem in one hole and some put two or more in the same hole. It was therefore unreasonable for the court to expect that the figures mentioned in court would match to a tee with those in the report. 16.Counsel urged that the trial court further faulted the figures on the report on the basis that it had not been indicated the cost that would have gone towards harvesting, packaging and transportation of the said crops and therefore threw the entire report out. That it should be noted that the defence never even raised any such queries with the report. That the trial court merely went on a detour of its own and made erroneous assumptions that the Appellant must have incurred costs to harvest, package and transport the maize to the market. 17.Counsel submitted that the court failed to take into account that most local subsistence farmers get all the labour that is required to farm, plant, weed and harvest from the family members of that home. That the land was not so much of an area as to reach to the ultimate conclusion that the appellant would have required labour outside of his family members to carry out the harvesting, packaging or transportation process. Counsel urged this court to find that the trial courts findings in that regard were mere assumptions and surmises that are not based on any actual evidence before the court. Additionally, he pointed out that the Defence never supplied any alternative figures neither did they dispute the figures supplied by the Appellant beyond what PW2 said in court. 18.Counsel submitted that in any event, even if the Appellant had not proved special damages as claimed, having proved that elephants entered into his land and destroyed his crops, he had already proved the elements of nuisance as against the Respondent and ought therefore to have been awarded general damages for trespass and nuisance which were well pleaded in his pleadings. Counsel submitted that the authority supplied by the respondents supporting the trial court’s finding is distinguishable from the facts of the current suit for various reasons. In the quoted case of Simon Sunkuyia Shira v Kilonzo Nganga Kinila [2020] eKLR, the court was at a loss as to what figure it would pick because even the area under cultivation was in dispute. One witness stated it was 7 acres, another 2 acres and yet another 12 acres while the report contained only 0.93 acres. Further, the claim was for Kshs. 499,649 while the report contained only a figure of Kshs. 112,076/- but it also emerged he had made other reports for a sum of Kshs. 449,649. It was for these reasons that the Learned Judge in that matter rightly found that there was no credible documentary evidence to support the claim on damage. That the circumstances are very distinguishable in the present case because the acreage is not in dispute, there was only one concrete report and the figures thereon have not been disputed with evidence. In any event, this court is not bound by the findings in that decision for reasons that these are courts of concurrent jurisdiction. It can at best be of persuasive value and the said authority is not applicable to the present case as to provide any persuasive value. 19.Counsel urged the court to find that the Appellant proved his case to the required threshold and it was in error for the trial court to dismiss his suit. He urged that under Section 3A(1) of the Wildlife Act, the Respondent is under a statutory duty to formulate policies, and to also ensure that the protection of crops against destruction by wildlife. The Respondent therefore owed a duty of care to the Appellant which duty it breached. He urged that DW1 admitted that elephants have been intermingling with people in that area and that they had not carried out any sensitization or at least had not supplied evidence of such sensitization meetings. The Appellant on his part confirmed that there is already an electric fence separating the forest and people’s land that was set up by a mzungu and that is the reason he has not put up a fence around his 3 acres and the elephants keep breaking it anyway. 20.Counsel urged that the duty of care will always lie with the Respondent to protect people like the Appellants. He placed reliance on the entire finding of the Supreme Court in the case of Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited (Petition 11 of 2015) [2018] KESC 48 (KLR) (Civ) (27 April 2018) (Judgment) and urged that the appeal was merited. Respondents’ submissions 21.Counsel submitted that it is trite law that Special Damages, must not only be specifically pleaded, but must also be strictly proved with as much particularity as circumstances permit. That from a cursory perusal of the Record of Appeal, this Honourable Court will note the following;a.The Claim that was before the trial court was for Special Damagesb.The Crop Damage Assessment Report dated 13th December, 2022, in which the Appellant’s claim for special damages is pegged on, has not indicated: The parcel number in which the alleged destroyed maize had been planted. The wild animal responsible for the said alleged crop destruction or photos to that effect. The maize could have been destroyed by the Appellants cows; The basis upon which the figure of Kshs. 5000/ = per bag was arrived at. 22.Counsel recollected the evidence of the witnesses and urged that PW2 evidence was therefore inconsistent with the Crop Damage Assessment Report dated 13th December, 2022 and as such, court should disregard the same. That PW1 and PW2 did not adduce any evidence of the cost of ploughing and firm inputs neither did they tender before court evidence of the basis upon which the figure of Kshs.5000/= per bag was arrived at, so as to be entitle to special damages of Kshs.256,000/=That the he Plaintiff confirmed that his farm did not have a permanent fence neither had he taken out an Insurance policy when he knew that Rumuruti Forest was inhibited by wild animals such as an elephant. He urged that the Assessment Report was prepared in absence of the Defendant and as such, the Claim was never verified and is thus fictitious, vexatious and this suit an abuse of the court process Counsel submitted that the Appellant was under the responsibility to prove that the Respondent had a duty of care and breached the same (by proving that indeed the elephant was the animal responsible for the crop distraction) and as a result of the breach, he suffered loss. 23.It is the Respondents’ case that the Appellant failed to discharge on a balance of probability that the elephant was the animal responsible of the crop destruction. No photos were attached to the Assessment Report, neither did the Report indicate that an Elephant was the animal responsible and there was no basis upon how the figure of Kshs.256,000/ = was arrived at. This being a claim for special damages, the Appellant apart from listing the alleged loss and damage, failed to lead any evidence at all in support of the said alleged loss and damage as required under Sections 107, 108 and 109 of the Evidence Act. He placed reliance on SIMON SUNKUYIA SHIRA -v- KILONZO NGANGA KINILA [2020] eKLR and urged that (PW1) confirmed on cross examination that he had not fenced his alleged farm. The Appellant was therefore the author of his own misfortune if there was any and should therefore be held 100% liable. He additionally placed reliance on the defence of volenti non-fit injuria and the case of AAA GROWERS LTD - v- ANN WAMBUI (SUING AS THE ADMINISTRATRIX IN THE ESTATE OF THOMAS WAHOME WAMBUI & ANOTHER (2016) eKLR and urged the court to dismiss the Appeal with costs. Analysis & Determination 24.This is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The task of a first appellate court was summarized in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re- assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 25.Additionally, the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions 26.I now recite the evidence in the trial court. 27.PW1 was the Plaintiff who adopted his witness statement as evidence in chief. He stated that he was the registered proprietor of all that freehold Interest as manifested In Title Number SIPILI/DONYOLOIP BLOCK 2/135 (MUTUKANIO) and that on 25th October 2022, a herd of elephants entered into his land and severely destroyed the mature maize crops growing thereon by way of grazing, trampling and uprooting the same. That he suffered loss and damage and the agricultural officers came and assessed the damage at Kshs. 256,000/-Further, that the said destruction was occasioned by the Defendant who he sought to be held wholly and directly liable for the loss and damage caused for breach of their duty owed to him. 28.He further testified that they took too long to respond as a result of which the elephants remained on the land for many hours before they were driven out. That after the damage, he visited their office seeking to be compensated and filled all the requisite forms but has never been compensated. 29.During cross examination, he stated that he had never paid for an insurance policy for crop damage and when shown PMFI-1, he stated that e had not erected an electric fence. When shown section 8 of the claim form, he stated that it did not have his or the Agricultural Officers’ signature. He further stated that he had taken pictures which were on his phone but he had not brought it to court. 30.PW2 was James Mwangi Kamau who testified that he was an Agricultural officer from Laikipia County and that he did a report in respect to the Plaintiff’s land dated 13th November 2022. That he visited the farm and found crops destroyed by elephants and the 3 acres of destruction were assessed at 18 bags per acre at Kshs. 5,000 per acre which totalled to Kshs. 256,500/-. 31.During cross examination, he stated that all that time, the maize was totalling between 5000 and 6000. That they normally use the relating price at that time and that it was from the cereal stores. However, he did not have the document of prices from the Ministry of Agriculture. He stated that he had assessed the range if 18 bags of maize per acre and that the elephants were responsible for the damage. Further, that he had not carried photos of the farm to present to court. he also stated that he had not signed the claim form. 32.DW1 was Rose Malanya who adopted her witness statement as evidence in chef. She stated that on 15th November 2022 they received a report of alleged invasion of elephants into the Plaintiff’s farm. That he was wholly to blame as he had not insured the crops or fenced his farm. That the defendant has taken time to sensitize people living around the wildlife and further, that the Plaintiff was issued with claim forms which he filled and lodged at the Community Wildlife Conservation committee and the same is yet to sit and deliberate on the Plaintiff’s claim. As he had elected the CWCC as the first avenue for address, the court had no jurisdiction to entertain the matter as the decision of the Committee would be first subject to a first Appeal at the National Environment Tribunal with a second Appeal at the Environment and Land Court. 33.During cross examination, she stated that there was no lapse on their end and that it was their duty to compensate those affected by wildlife damage. She stated, when shown the claim form, that the Appellant made a report of invasion and they did a report but the same was not in court. 34.I have considered the record of the lower court, grounds of appeal, the learned submissions filed and case law cited. I have had due regard to the applicable law. 2 issues emerge for determination;a.Whether the trial court had jurisdiction to try the matter.b.Whether, based on the answer to issue no. (a) above, the trial court erred in dismissing the Appellants’ case. 35.Naturally, I elect to begin with the first issue since being one on jurisdiction, it would, if the answer be in the negative, dispose off this appeal. 36.The Appellant claimed that the Respondent was to be held liable for the destruction caused to his crops by wild animals. Section 7 of the Wildlife Conservation Act provides;The functions of the Service shall be to:-a.conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction;b.provide security for wildlife and visitors in national parks, wildlife conservation areas and sanctuaries; 37.The Act also creates County Wildlife Conservation & Compensation Committee under section 18 which states that;(1)Each County shall have Wildlife Conservation Committee of—a.of a chairperson appointed by the Cabinet Secretary being the County Commissioner;b.an officer of the Service for the county who shall be the Secretary;(c)……… 38.With respect to compensation, section 25 of the Act gives guidelines on compensation for personal injury or damage to property. It states as follows;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……….4.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 claim and make recommendations as appropriate and submit it to the Service for due consideration.5.The County Wildlife Conservation and Compensation Committee shall review the claim and award and pay a compensation valued at the ruling market rates: …….. 39.The Wildlife Conservation and Management (Compensation) Regulations under Regulation 12 also provides;(1)Subject to section 25 of the Act, a person shall be eligible for compensation under these Regulations if it relates to human injury or death by any wildlife listed under the Third Schedule to the Act or loss or damage to crops, livestock or other property from wildlife specified in the Seventh Schedule to the Act. 40.Jurisdiction is everything and without it a court must down its tools. The Court of Appeal in the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd stated that jurisdiction is everything and without it, a court has no power to make one more step. 41.The dispute before the subordinate court concerned compensation for destruction of crops allegedly caused by elephants. The claim therefore squarely fell within the framework established under the Wildlife Conservation and Management Act, 2013. 42.Section 25(4) of the Act provides as follows:“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 claim and make recommendations as appropriate and submit it to the Service for due consideration.” 43.Further, Section 25(5) provides that the County Wildlife Conservation and Compensation Committee shall review the claim and award and pay compensation valued at the ruling market rates. 44.The Act further establishes County Wildlife Conservation and Compensation Committees under Section 18 with the mandate of receiving, verifying and processing such compensation claims. The legislative intention is therefore clear that disputes relating to compensation for destruction caused by wildlife are to be commenced before the statutory committee established under the Act. 45.The evidence on record confirms that the Appellant had in fact lodged a Wildlife Compensation Claim Form with the Respondent thus he had invoked the statutory compensation mechanism established under the Act. DW1 testified that the claim had been lodged before the County Wildlife Conservation and Compensation Committee and was pending deliberation. 46.It is therefore evident that the Appellant approached the court before exhausting the dispute resolution mechanism specifically provided for under the statute. The doctrine of exhaustion requires that where Parliament has established a clear procedure for redress, that procedure ought to be strictly followed before resort can be made to the courts. 47.The Court of Appeal in Speaker of the National Assembly v James Njenga Karume held that where there is a clear procedure for redress prescribed by statute, that procedure should be strictly followed. 48.Similarly, the Supreme Court in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others emphasized that courts ought to defer to alternative dispute resolution mechanisms established by statute unless exceptional circumstances are demonstrated. 49.In the present matter, no exceptional circumstances were demonstrated to warrant bypassing the elaborate mechanism established under the Wildlife Conservation and Management Act. The trial court therefore lacked jurisdiction to entertain the suit at first instance before exhaustion of the statutory process. 50.Consequently, the court ought to have considered the question of jurisdiction and once the issue of jurisdiction arose, the trial court ought to have downed its tools without proceeding to determine the merits of the claim. Any findings on liability and damages made without jurisdiction were therefore made in vain. 51.In the premises, I find and hold that the subordinate court lacked jurisdiction to entertain Rumuruti SPMCC No. E009 of 2023 in view of the mandatory dispute resolution and compensation mechanism established under Sections 18 and 25 of the Wildlife Conservation and Management Act, 2013. 52.Accordingly, the judgment of the trial court dismissing the suit on merits is hereby set aside and substituted with an order dismissing the suit for want of jurisdiction. 53.Given the nature of the dispute and considering that the issue turns on jurisdiction, each party shall bear its own costs both in the lower court and in this appeal. 54.Orders accordingly. DATED SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF MAY 2026A.K. NDUNG’U JUDGE