https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9380

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CIVIL APPEAL NO. E017 OF 2025** KENYA WILDLIFE SERVICE……………………APPELLANT VERSUS PETER MUSYOKA KIRUKI…………………..RESPONDENT (*Being an Appeal against the judgement and decree of Hon. Mbayaki Wafula (PM) in Marimanti SPMCC. No. E026 OF 2022 delivered on 27th February, 2025.)* **JUDGEMENT** 1. This Appeal emanates from the judgment a decree of Hon. Mbayaki Wafula (PM) in Marimanti SPMCC No. E026 of 2022. The Plaintiff (Respondent) sued the Defendant (Appellant) for damages and compensation arising from a wildlife attack. 2. The Plaintiff’s case was that on or about 22nd December 2019 while attending to his farm, he was attacked by a buffalo that had escaped its natural habitat causing him closed left distal tibia fibula fracture. 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 buffalo in a designated area 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: - 7. Liability 80:20 8. General damages Kshs. 700,000 9. Special damages Kshs. 41,900 10. Costs and interests. 11. Aggrieved with the decision, the Appellant lodged its Appeal on the following grounds as set out in the Memorandum of Appeal dated 25th March 2025: - 12. 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. 13. That the learned trial magistrate erred in law and in fact in finding the Appellant 80% liable in negligence where there was no evidence in support in total disregard of the evidence adduced at the hearing. 14. That the learned trial magistrate erred in law and in fact in awarding damages of Ksh. 700,000 which sum is inordinately excessive. 15. 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. 16. 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. 17. The Appellant prays that the Appeal be allowed, judgment of the trial court be set aside and costs of the appeal. 18. 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.”** 1. 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: - 2. 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. 3. Whether the trial court erred in finding that the Appellant is liable for negligence. 4. Whether the damages awarded to the Respondent were justified. 5. Who should bear the costs of Appeal. 6. The Respondent filed written submissions dated 10th February 2026 raising the following issues for determination: - 7. Whether the trial court has original jurisdiction to entertain a claim in tort seeking compensation for injury arising from wildlife. 8. Whether the quantum of damages awarded the Respondent was justified. 9. Which party ought to bear cost of the Appeal. 10. 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: - * 1. Whether the trial court had the jurisdiction to hear and determine a claim for compensation for personal injury arising from wildlife. 2. Whether the trial court misdirected itself in holding the Defendant liable for negligence. 3. Whether the award for general damages for pain and suffering was excessive. 4. Costs. 11. This appeal turns on the preliminary issue and threshold issue of jurisdiction. Counsel for the Appellant urged that the trial court was clothed with no competence to receive and determine this suit, as the cause of action being a claim for bodily injury occasioned by wildlife fell squarely within the mandate of the County Wildlife Conservation and Compensation Committee established under Section 18 of the Wildlife Conservation and Management Act, 2013. 12. The Appellant relied on **Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome) *[2024]* KECA 1127 (KLR**) where the Court of Appeal addressed the proper interpretation of Section 25 of the Act, holding that its intent was to direct claimants injured by wildlife towards the statutory dispute resolution mechanism under the Act, rather than straight to the courts. The Appellant also relied on **Peter Muturi Njuguna v Kenya Wildlife Services** [**2017] KECA 42 (KLR)** where it was held that once a claimant elects to pursue compensation, that claim must be lodged at the forum appointed under the Act, namely the District Committee. 13. The question whether the magistrates’ courts are divested of original jurisdiction in claims arising from wildlife-human conflict is one that refuses to go away. As seen from the authorities cited by the parties, the Court of Appeal has given divergent interpretation of Section 25 of the Act. 14. In the present case, the jurisdictional issue was raised ab initio in the parties’ pleadings and canvassed in the trial. The trial court following authorities from superior court was persuaded that it had jurisdiction. 15. The Appellant additionally grounded this position in the doctrine of exhaustion of statutory remedies. It relied on **Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others[2019] eKLR**, where the Court made clear that disputes fashioned with the intention of attracting the jurisdiction of superior courts are not a substitute for established legal procedures, and that even where superior courts possess jurisdiction to resolve profound questions of law, the first opportunity must be extended to the relevant persons, bodies, tribunals, or quasi-judicial authorities mandated to deal with the dispute under the parent statute. Counsel further cited **NGOs Coordination Board v E.G & 4 Others; Katiba Institute (Amicus Curiae)** **[2023] KESC** **17 (KLR),** where the Supreme Court observed that the exhaustion of administrative remedies serves the values of administrative autonomy, preservation of the separation of powers, judicial economy, and administrative efficiency. 16. The Respondent, for his part, contended that the word "may" in Section 25(1) of the Act is permissive, conferring on an injured party an election either to pursue the statutory route or to approach the courts directly. She placed reliance on **Kenya Wildlife Services v Joseph Musyoki Kalonzo** **[2017] eKLR**, **Rose Ndinda Mutuku v Kenya Wildlife Services** **[2018] eKLR**, and **Galsaracho Teteya & 5 Others v Kenya Wildlife Services[2021] eKLR**, all of which interpreted the word "may" as preserving the claimant's right to litigate in the ordinary courts. 17. This court is persuaded that the statutory scheme under Section 25, when construed in light of the overarching constitutional imperative under Article 159(2)(c) and the doctrine of exhaustion settles the jurisdictional question. That claims of this nature must first be channelled through the Committee before the ordinary courts may be invoked. 18. The doctrine of exhaustion of statutory remedies is by now deeply rooted in Kenya's legal order. In **Speaker of the National Assembly V Njenga Karume [1992] KECA 42 (KLR)** the Court of Appeal stated as follows: ***“….In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observed without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.…”*** 1. The above principle was also espoused in**Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR**as follows; ***“Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime.”*** 1. In **Albert Chaurembo Mumbo & 7 Others v Maurice Munyao & 148 Others [2019] eKLR [2019] KESC 83 (KLR) the Supreme Court rendered as thus:-** **“In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the disputes as provided for in the relevant parent statute."** 1. A court that proceeds without jurisdiction renders its entire proceedings a nullity. As has been consistently reaffirmed, where a court acts without jurisdiction, there is no basis for a continuation of proceedings, and the only proper course is to down tools. The proceedings of the trial court, having been conducted in the absence of the required statutory precondition, cannot be allowed to stand. No appeal can be constructed upon a foundation that is itself void. 2. Having decided on the jurisdictional issue, the rest of the issues are rendered moot. 3. 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 mechanism 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 court. They must however, demonstrate to the court that they have exhausted the statutory mechanism. 4. 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. 5. 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. Orders accordingly. **Judgement delivered, dated and signed at Chuka this 29th day of June , 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Judgement delivered in the presence of Mr. Mutai for the Appellant; Ms. Mwiti holding brief for Mr. Kirimi for the Respondent; Muriuki (Court Assistant.)**