https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9336

Kenya Wildlife Services v Makena (Civil Appeal E014 of 2025) [2026] KEHC 9336 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 9336 (KLR) Republic of Kenya In the High Court at Chuka Civil Appeal E014 of 2025 RL Korir, J June 29, 2026 Between Kenya Wildlife Services Appellant and Fridah Makena Respondent (Appeal from the judgment delivered by Hon. Mbayaki Wafula (PM) on 27th February 2025 in Marimanti SPMCC No. E023 of 2022.) Judgment 1.This Appeal arises from the judgment delivered by Hon. Mbayaki Wafula (PM) on 27th February 2025 in Marimanti SPMCC No. E023 of 2022. 2.By way of a Plaint dated 11th October 2022, the Plaintiff (Respondent) sued the Defendant (Appellant) for damages arising out of serious injuries sustained as a result of an attack by a buffalo. 3.The Plaintiff’s case was that on or about 28th November 2020 while on her way home from her farm, she was attacked by a buffalo that had escaped its natural habitat causing her the following injuries resulting to 1 5 % permanent disability: -i.Closed left distal tibia fibula fractureii.Closed right radial ulna fracture.iii.Multiple abrasions and laceration injuries on both legs, knees, elbows, both forearms and dorsum of both hands. 4.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. 5.The Plaintiff pleaded that the trial court had jurisdiction. 6.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 her negligence in the manner in which she conducted herself. The Defendant also pleaded that the Plaintiff had not exhausted the legally laid down procedures and denied the jurisdiction of the court. 7.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 80:20ii.General damages Kshs. 1,350,000iii.Special damages Kshs. 41,900iv.Costs and interests. 8.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: -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 finding the Appellant 80% liable in negligence where there was no evidence in support in total disregard of the evidence adduced at the hearing.iii.That the learned trial magistrate erred in law and in fact in awarding damages of Ksh. 1,350,000 which sum is inordinately excessive.iv.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.v.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. 9.The Appellant prays that the Appeal be allowed, judgment of the trial court be set aside and costs of the appeal. 10.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.” 11.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. 12.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. 13.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. 14.Counsel for the Appellant submitted that the trial court lacked original jurisdiction to hear and determine the suit as it arose from loss and bodily injury suffered by the Respondent caused by wildlife as the said jurisdiction vests in the County Wildlife Conservation and Compensation Committee established under Section 18 of the Wildlife Conservation and Management Act 2013. 15.It was submitted that where there is an alternative mechanism provided in a statute which ranks above common law, a party is required to exhaust the alternative mechanism provided by statute. That claims ought to be lodge before a body created to undertake compensation prior to approaching court. 16.In support of the above argument, counsel cited the case of Kenya Wildlife Service v Kanini (Suing as the Next friend to Edward Koome) [2024] KECA 1127 (KLR) where the Court of Appeal interpreted Section 25 of the Act that its intention was to cause claimants who had been injured or persons whose relatives had died by actions of wildlife to benefit from the dispute resolution mechanism under the Act. The Appellant also cited the case of Peter Muturi Njuguna v Kenya Wildlife Services [2017] KECA 42 (KLR) where the Court of Appeal stated that whereas the Appellant was under no compulsion to make any claim, once he chose to do so as he might, he was compelled to lodge it at the appointed forum being the District Committee. 17.The appellant contends that bringing the suit before the trial court is against the doctrine of exhaustion as was stated in the case of Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] eKLR where the Supreme Court stated that even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals of any quasi-judicial authorities and organs to deal with where the dispute as provided for in the relevant parent statute. The Appellant further cited the following authorities: -i.NGO’s Coordination board v E.G and 4 Others; Katiba Institute (Amicus Curiae [2023] KESC 17 KLR where the Supreme Court observed that the exhaustion of administrative remedies aids in protecting administrative autonomy, preserving the separation of powers, gaining judicial economy, avoiding administrative inefficiency and permitting courts to benefit from own administrative body’s determination of facts and exercise of discretionii.Peter Muturi Njuguna v Kenya Wildlife Service (Supra) where the Court of Appeal stated there was compulsion to exhaust the procedure provided under the section before going to court.iii.Kimani Wanyoike v Electoral Commission and another [1995] KECA 128 (KLR) where the Court of Appeal held 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. 18.The Appellant contends that the Respondent ought to have exhausted the statutory remedies by pursuing her claim and compensation at the County Wildlife Conservation and Compensation Committee which has the original jurisdiction to hear such claims. 19.The Respondent on her part submitted that the interpretation of Section 25 and the use of the word “may “gives the Claimant the option to move to the committee or the court. She relied on the following authorities: -i.Kenya Wildlife Services v Joseph Musyoki Kalonzo [2017] eKLR where the Court of Appeal held that the section does not oust the jurisdiction of the high court and other courts as the use of the word may is permissive.ii.Rose Ndinda Mutuku v Kenya Wildlife Services [2018] eKLR where the court held that the use of the word may in Section 25 is permissive and gives the claimant the option of filing his claim in court.iii.Galsaracho Teteya & 5 Others v Kenya Wildlife Services [2021] eKLR where the court held that the effect of Section 25 does not oust the original jurisdiction in matters relating to human wildlife conflicts. 20.Having considered the respective submissions of the parties and the authorities cited, this court observes that the decisions of the Court of Appeal are varied on the question of whether magistrates' courts possess original jurisdiction to entertain compensation claims arising from wildlife-related injuries. 21.A close look at the Wildlife Conservation and Management Act, 2013 shows that it establishes a dedicated administrative mechanism for the verification and processing of compensation claims arising from injury or loss caused by wildlife. The procedural architecture under Section 25 of the Act complete with defined timelines and institutional accountability through the Wildlife Conservation and Compensation Committee reflects a clear legislative design and intent to channel such claims through that Committee as the primary forum for initial determination. 22.The principle that a statutory dispute resolution mechanism must be exhausted before the jurisdiction of the courts is invoked is now settled. In the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, the court delved into the exhaustion doctrine and held that it served the purpose of ensuring that there is a postponement of judicial consideration of matters so that a party is first of all diligent in the protection of their own interest within the mechanisms in place for resolution outside the courts, in line with Article 159 of the Constitution. 23.The constitutional underpinning of this doctrine was further articulated by the Court of Appeal in Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where it was stated in emphatic terms that:-“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is 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…" 24.This position is further reinforced by the Supreme Court's foundational pronouncement on jurisdiction in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the court held as follows:“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… without jurisdiction, the court cannot entertain any proceedings." 25.As the Court of Appeal similarly affirmed in Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR, that whereas courts of law are enjoined to defer to specialised tribunals and other alternative dispute resolution bodies created by Parliament to resolve specific disputes, a court cannot sit back where such institutions disregard the rights of citizens; but equally, it must respect the primacy of those institutions where they remain available and have not been engaged. 26.The Respondent did not invoke, engage, or exhaust the statutory process established under the Act. By proceeding directly to court to pursue what is, in substance, a compensation claim arising from a wildlife-related injury, the Respondent entirely bypassed the administrative mechanism Parliament specifically designed for that purpose. 27.The trial court ought to have first considered whether the claim fell within the compensation framework under the Act and, if so, whether the prescribed mechanism had been properly engaged before the suit was filed. The failure to make that inquiry and to require exhaustion of the statutory process amounted to a jurisdictional error or at the very least a fundamental procedural misdirection that deprived the trial court of competence to entertain the matter, and by extension deprives this court on appeal of any valid proceedings upon which to act. 28.It is well established that the doctrine of exhaustion may be a complete bar to the jurisdiction of a court if the exceptions thereto do not apply. No exceptional circumstances have been advanced in this case that would justify bypassing the statutory route. The claim is one squarely contemplated by the Wildlife Conservation and Management Act, 2013, and the Committee established thereunder is eminently suited to determine it. 29.Where a court proceeds without jurisdiction, its proceedings are rendered void from the outset. Any judgment delivered in the absence of jurisdiction is null ab initio and cannot be saved on appeal, for an appellate court derives no greater jurisdiction from proceedings that were themselves a nullity. It follows that both the proceedings before the trial court and the present appeal must be struck out. 30.Having decided on the jurisdictional issue, the rest of the issues are rendered moot. 31.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 has the right to access justice in the court. They must however, demonstrate to the court that they have exhausted all the statutory mechanism. 32.In the end, it is my finding that the trial court lacked jurisdiction to entertain the suit in the first instance and without jurisdiction, the entire suit and judgment of the trial court were nullity and are struck out. The Respondent is at liberty to prosecute his claim before the Compensation Committee. 33.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-KORIRJUDGEJudgement delivered in the presence of Mr. Mutai for the Appellant; Ms. Mwiti holding brief for Mr. Kirimi for the Respondent; Muriuki (Court Assistant).