https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9379

Kenya Wildlife Service v Kanyaru (Civil Appeal E016 of 2025) [2026] KEHC 9379 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9379 (KLR) Republic of Kenya In the High Court at Chuka Civil Appeal E016 of 2025 RL Korir, J June 29, 2026 Between Kenya Wildlife Service Appellant and Gerald Mbiti Kanyaru Respondent (Being an Appeal against the judgement and decree of Hon. Mbayaki Wafula (PM) in Marimanti SPMCC. No. E025 OF 2022 delivered on 27th February, 2025.) Judgment 1.This Appeal arises from the judgment and decree of Hon. Mbayaki Wafula (PM) in Marimanti SPMCC No. E025 of 2022. The Plaintiff (Respondent) sued the Defendant (Appellant) for compensation and damages arising from injuries caused by wildlife attack. 2.The Plaintiff’s case was that on or about 15th September 2020 while fetching water on river Ura was viciously attacked by a crocodile occasioning him the following injuries whose permanent disability was assessed at 25 %: -i.Closed left distal tibia fibula fractureii.Open right distal tibial fibula fractureiii.Blunt chest trauma with 4th to 7th right rib fracturesiv.Multiple abrasions and laceration injuries on both legs, knees, elbows, both forearms and dorsum of both hands. 3.The Plaintiff blamed the Defendant for the occurrence of the accident being the custodian of human-wildlife conflict and ought to have kept the crocodile in away from situations that would cause death, injury or harm to humans and/or destruction of property. 4.The Plaintiff pleaded that the trial court had jurisdiction. 5.The Defendant filed a statement of defence denying the Plaintiff’s assertions and averred that if indeed the Plaintiff was attacked it was as a result of his negligence in the manner in which he conducted himself. The Defendant also pleaded that the Plaintiff had not exhausted the legally laid down procedures and denied the jurisdiction of the court. 6.The matter proceeded for hearing with two witnesses testifying for the Plaintiff and one witness for the Defendant. Judgment was then entered in favour of the Plaintiff in the following terms: -i.Liability 50:50ii.General damages Kshs. 600,000iii.Special damages Kshs. 41,900iv.Future medical costs Kshs. 300,000v.Loss of amenities Kshs. 200,000vi.Loss of earning capacity Kshs. 400,000vii.Costs and interests. 7.Dissatisfied with the decision, the Appellant lodged its Appeal on the following grounds as set out in the Memorandum of Appeal dated 25th March 2025: -i.That the learned trial magistrate erred in law and in fact in proceeding to adjudicate a matter in which the said court lacked the original jurisdiction to hear and determine.ii.That the learned trial magistrate erred in law and in fact in awarding damages of Ksh. 1,500,000 which sum is inordinately excessive.iii.That the learned magistrate erred in law in failing to consider all the relevant factors and circumstances of the case in arriving at the decision, judgment and award.iv.That the learned magistrate erred in law and in fact in failing to consider the written submissions tendered by the Appellant’s counsel and in failing to consider the legal authorities tendered therewith. 8.The Appellant prayed that the Appeal be allowed, judgment of the trial court be set aside and costs of the appeal be awarded to it. 9.As a first appellate court, this Court is duty bound to revisit, reassess, and analyse the entire body of evidence on record and draw its own independent conclusions. In undertaking that exercise, the Court must remain cognisant of the fact that it did not have the advantage of seeing or hearing the witnesses testify, while carefully examining the record to ascertain whether the trial court’s findings were grounded in the evidence presented. This duty was restated by the Court of Appeal in the case of Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) as thus: -“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” 10.The Appeal was disposed of by way of written submissions. The Appellant filed written submissions dated 20th January 2026 raising the following issues for determination: -i.Whether the trial court had original jurisdiction to hear and determine a suit arising from loss and bodily injury suffered by Respondent caused by wildlife.ii.Whether the trial court erred in finding that the Appellant is liable for negligence.iii.Whether the damages awarded to the Respondent were justified.iv.Who should bear the costs of Appeal. 11.The Respondent filed written submissions dated 10th February 2026 raising the following issues for determination: -i.Whether the trial court has original jurisdiction to entertain a claim in tort seeking compensation for injury arising from wildlife.ii.Whether the quantum of damages awarded the Respondent was justified.iii.Which party ought to bear cost of the Appeal. 12.I have considered the grounds raised in the Memorandum of Appeal as well as the parties’ submissions and I find the following issues for determination: -i.Whether the trial court had the jurisdiction to hear and determine a claim for compensation for personal injury arising from wildlife.ii.Whether the trial court misdirected itself in holding the Defendant liable for negligence.iii.Whether the award for general damages for pain and suffering was excessive.iv.Costs.I will begin with the issue of jurisdiction. 13.I have carefully considered both positions. The tension in how courts have read Section 25 of the Act is real and acknowledged. Two divisions of the Court of Appeal have reached opposite conclusions on the very same statutory language, and subordinate courts have understandably found themselves pulled in different directions. However, when the Act is read as a whole and when regard is had to the constitutional framework within which it operates, I am persuaded that the better interpretation is that claims of this nature must first pass through the County Wildlife Conservation and Compensation Committee before any resort to the ordinary courts may be made. 14.The starting point is the nature of the statutory scheme itself. Parliament, in enacting the Wildlife Conservation and Management Act, 2013, did not simply create a right of action, it created an entire compensation architecture, complete with verification procedures, prescribed amounts, and a dedicated committee. This is not incidental machinery. It is the primary mode of resolution that the legislature chose for human-wildlife conflict claims. 15.The principle that a prescribed statutory remedy must be used before courts are approached is not new in Kenya's legal order. Its clearest expression in the administrative law context appears in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] KECA 304 (KLR) where the Court of Appeal articulated the doctrine in terms that apply with equal force as follows: -“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts can be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution." 16.This court also draws support from Kenya Wildlife Service v Awuor [2023] KEHC 3721 (KLR), where, faced with precisely the same conflict between the Kalonzo and Njuguna lines of authority, the High Court resolved the matter by remitting the case back to the magistrate's court. 17.The court invoked the provisions of Section 78 of the Civil Procedure Act and remitted the case back to the Magistrate's Court with an order for stay of proceedings therein pending the determination of the dispute or claim lodged before the County Wildlife Management and Conservation Compensation Committee as contemplated in Section 25 of the Act. That approach directing the matter back to the statutory body rather than proceeding to hear it is the correct one, and this court adopts it. 18.In this case, the consequence of the trial court having proceeded without first ensuring that the statutory precondition was satisfied is fatal to the proceedings below. Jurisdiction is everything. It is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. It is trite that a decision made by a court of law without jurisdiction is a null ab initio, and such a decision is amenable to being set aside ex debito justitiae. 19.The above firm position was taken in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, which has been consistently followed by the courts. Nyarangi JA stated: -“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." 20.Where a court takes upon itself to exercise jurisdiction it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given. The trial court's proceedings, conducted without the required statutory precondition having been met, are a nullity. This appeal therefore cannot be constructed on a foundation that is itself void, and the only proper recourse is for the matter to be channelled through the Committee as the legislature intended. 21.Having decided on the jurisdictional issue, the rest of the issues are rendered moot. 22.This court is however alive to the judicial imperative of facilitating access to justice for persons affected by human-wildlife conflict. To that end therefore where the body established under Sections 18 and 25 of The Wildlife Conservation and Management Act, 2013 fails to act or frustrates the Claimant, such a Claimant has the right to access justice in the courts. They must however, demonstrate to the court that they have exhausted the statutory mechanism. 23.In the end, it is my finding that the trial court lacked jurisdiction to entertain the suit in the first instance. Without jurisdiction, the entire suit and judgment of the trial court is a nullity and is struck out. The Respondent is at liberty to prosecute his claim before the Compensation Committee. 24.The Appeal is allowed. Though successful, the Appellant being the State organ charged with such compensation is denied the costs of the Appeal for reason that the Respondent would be prejudiced by such an award. 25.Orders accordingly. JUDGEMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 29TH DAY OF JUNE, 2026...........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Mr. Mutai for the Appellant; Ms. Mwiti holding brief for Mr. Kirimi for the Respondent; Muriuki (Court Assistant.)