[2022] KENET 712 (KLR)

Kiarie v Kenya Wildlife Service (Tribunal Appeal 011 of 2020) [2022] KENET 712 (KLR) (28 September 2022) (Judgment)

Neutral citation: [2022] KENET 712 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 011 of 2020

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

September 28, 2022

Between

Martha Njeri Kiarie

Appellant

and

Kenya Wildlife Service

Respondent

Judgment

1. The appellant instituted the appeal vide a notice of appeal dated March 2, 2020 under rule 4 (1) of the National Environment Tribunal Procedure Rules. The appeal is against the decision of the respondent, Kenya Wildlife Service, to reject the appellant’s claim for compensation.

2. The appeal emanates from the death of one Josphat Gathumbi who was allegedly killed by a wild animal believed to be a hyena at Kandisi area in Ongata Rongai, Kajiado County. The appellant contends that the reason given by the respondent as a basis for rejection of her claim for compensation is invalid and insincere. The appellant thus seeks full compensation from the respondent according to the rates stipulated in relevant policy and law.

3. In support of the appeal, the appellant raises the following grounds of appeal:a.The report by the police officer in charge of Ongata Rongai police station Mr Henry indicates that the deceased was attacked by a wild animal and specifies that it was a hyena as evidenced by occurrence book No OB39/27/05/2015. b.The deputy park warden KWS confirmed from the records availed to him that the deceased person was killed by a hyena and made reference to OB1/27/5/15. c.The local community in Kadisi confirm that they knew the deceased and that he was killed by a hyena on the fateful date. There are several people who can bear witness to the incidence if called upon to do so.d.It is common knowledge that hyenas frequent Kadisi area. KWS officers have on various occasions been called upon by the local community to set traps in order to catch them.

4. The appellant further filed a replying affidavit sworn on February 16, 2021, a supplementary affidavit sworn on March 29, 2021, a replying affidavit by Jedida W Marimbet sworn on February 16, 2021 and annexures in support of the petition.

Respondent’s reply 5. The respondent’s response to the appeal was vide a reply to grounds of appeal dated October 29, 2020. It raises the following grounds in opposition to the appeal:a.That the procedure and remedy provided under the Wildlife Conservation and Management Act, No 17 of 2013, is clear, competent and direct to address wildlife conservation, management and protection disputes;b.That in the performance of its statutory duties the Respondent owes the Appellant no duty of care under the Wildlife Conservation and Management Act, 2013 or under common law or at all and as such the suit discloses no known cause of action against the defendant at all;c.That while exercising its general statutory functions the respondent does not owe the appellant a duty of care but a duty to care and such a duty is not clothed with any right of action for compensation;d.That the statutory functions of the respondent are general administrative mandate primarily meant for protection, conservation and management of wildlife and not to compensate victims of human-wildlife conflicts at all;e.That section 7 of the Wildlife Conservation and Management Act, 2013 does not create a statutory duty of care against the respondent capable of being enforced in common law by an aggrieved party or at all;f.That the duty to compensate victims of wildlife conflicts rests with the state and in particular the Wildlife Conservation and Compensation Committee under the provisions of section 25 of the Wildlife Conservation and Management Act, 2013 and as such the suit discloses no cause of action against the defendant at all;g.That section 19 of the said Act outlines the duties/obligations of the Wildlife Conservation and Compensation Committee and in particular part (i) states that one of the duties of the committee is to review and recommend claims resulting from loss or damage caused by wildlife for payment or compensation;h.That once the committee has reviewed claims, it proceeds to recommend the same for approval to the Cabinet Secretary who then scrutinizes the claims and where appropriate may award compensation to the aggrieved claimant;i.That it is clear that the respondent has no loci standi in the decisions concerning compensation for loss or damage sustained due to human wildlife conflict; andj.That this suit seeks to impose a duty against the respondent to compensate the appellant for the alleged loss and damage contrary to the law.

6. On this basis, the respondent prays that the appellant’s appeal be dismissed with costs.

Submissions Appellant’s submissions 7. In support of the appeal, the appellant filed written submissions dated April 1, 2021. On whether, the deceased, John Gathumbi, was attacked and killed by a hyena, the appellant cites an autopsy report dated February 25, 2016 by the consultant pathologist Dr Peter M Ndegwa which states that the cause of death was multiple organ injuries consistent with an animal attack. The appellant further makes reference to the report by the police officer in charge of Ongata Rongai Police Station and the deputy park warden Kenya Wildlife Service in support of this claim.

8. The appellant further submits that it is the function of the respondent under the Wildlife Conservation and Management Act, No 47 of 2013, to conserve, protect and sustainably manage wildlife resources. she further submits that it is the duty of the committee established by the respondent to receive applications for compensation and of awarding compensation for injury or death.

9. On the applicable law, the appellant cites the third schedule of the Wildlife Conservation and Management Act, No 47 of 2013 and submits that a hyena falls within the wildlife species in respect of which compensation may be paid.

10. The appellant further cites article 50 (1) of theConstitution of Kenya, 2010 and submits that the respondent violated her right to a fair hearing by unilaterally rejecting her claim.

11. On the issue of compensation, the appellant cites the cases of Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Limited (2018) eKLR andKenya Wildlife Services -vs- Kinyua Ikabu (2019) eKLR and submits that the respondent is properly enjoined in the suit and has the mandate to make compensation for damage caused by wildlife.

12. On this basis, the appellant urges the tribunal to allow her appeal.

Respondent’s submissions 13. The respondent filed written submissions dated March 25, 2021. It submits that the Wildlife Conservation and Management Act, No 47 of 2013 has established a dispute resolution mechanism and the appellant ought to pursue her claim under the said mechanism. The respondent further contends that it is neither liable nor is it the competent body to pay compensation. It cites the case of Federation of Women Lawyers Kenya (FIDA) -vs- Attorney General & Another (2018) eKLR in support of its case.

14. The respondent contends that any dispute touching on management, protection and conservation of wildlife ought to be referred to the lowest possible structure of dispute settlement which is the relevant County Wildlife Conservation and Compensation Committee under section 18 of the Act.

15. The respondent argues that it does not control any fund for compensating victims of wildlife conflict since section 24 of the Wildlife Conservation and Management Act establishes a wildlife conservation scheme for that purpose. It further contends that it does not play any part or role in the compensation process and is therefore wrongly enjoined in the suit and that the power to compensate victims of human-wildlife conflict lies in the hands of relevant compensation committee and the Cabinet secretary.

16. The respondent submits that where there is a clear procedure for the redress of any particular grievance prescribed by theConstitution or an Act of Parliament, the procedure should be strictly followed. It cites the cases of Speaker of National Assembly -vs- Njenga Karume (2008) 1 KLR 425, Alice Mweru Ngai -vs- Kenya Power & Lighting Co Ltd(2015) eKLR, R -vs- Secretary County Public Service Board & Another ex parte Hulbai Gedi Abdille(2015) eKLR and Peter Muturi Njuguna -vs—Kenya Wildlife Service (2017) eKLRin support of its case.

17. On this basis, the respondent submits that the suit is premature and fatally defective for failure to comply with the dispute settlement procedure under the Wildlife Conservation and Management Act, No 47 of 2013. It thus prays that the suit be struck out with costs.

Issues for determination 18. Having considered the appellant’s appeal instituted vide a notice of appeal dated March 2, 2020, the respondent’s response vide reply to grounds of appeal dated October 29, 2020, evidence adduced by the parties and their submissions, the tribunal will address the following issues:a.Whether the deceased, Josphat Gathumbi, was killed by a wild animal to warrant compensation under the Wildlife Conservation and Management Act, No 47 of 2013;b.Whether the Wildlife Conservation and Management Act, No 47 of 2013, imposes a duty upon the respondent, Kenya Wildlife Service, to compensate for personal injury or death or damage to property; andc.What orders should the tribunal make?

A. Whether the deceased, Josphat Gathumbi, was killed by a wild animal to warrant compensation under the Wildlife Conservation and Management Act, No 47 of 2013 19. The appellant contends that the deceased, Josphat Gathumbi was killed by a hyena at Kandisi in Ongata Rongai, Kajiado County on May 27, 2015. It is on this basis that she submitted a claim for compensation under the Wildlife Conservation and Management Act, No 47 of 2013 which was rejected by the respondent.

20. The appellant has adduced sufficient evidence to prove that the deceased was killed by a hyena. The autopsy report by Dr Peter M Ndegwa dated February 25, 2016 and filed before the tribunal on March 2, 2020 identifies the cause of death of the late John Gathumbi to be multiple organ injuries consistent with an animal attack. This is also captured in the certificate of death dated July 15, 2015 which states the deceased’s death was caused resulted from multiple organ injuries due to animal attack.

21. This fact is also captured by the officer in charge of Ongata Rongai Police Station in the occurrence book under OB/27/05/2015 where he states that the scene was visited and it was confirmed that the deceased was attacked and killed by a wild animal at Kandisi area.

22. This evidence was not denied by the respondent in its defence. Its only contention is that the appellant failed to follow the correct procedure for compensation under the Wildlife Conservation and Management Act, No 47 of 2013.

23. The tribunal finds that the deceased, Josphat Gathumbi, was killed by a hyena at Kandisi in Ongata Rongai, Kajiado County on May 27, 2015. Further, under the third schedule of the Wildlife Conservation and Management Act, No 47 of 2013, a hyena qualifies as a wildlife species in respect of which compensation may be paid. The appellant was thus justified to submit a claim for compensation under the Act as a relative of the deceased.

B. Whether the Wildlife Conservation and Management Act, No 47 of 2013, imposes a duty upon the respondent, Kenya Wildlife Service, to compensate for personal injury or death or damage to property 24. The respondent in its reply to grounds of appeal dated October 29, 2020 contends that the duty to compensate victims of wildlife conflicts rests with the state and in particular the Wildlife Conservation and Compensation Committee under the provisions of section 25 of the Wildlife Conservation and Management Act, 2013.

25. The respondent further argues that section 19 of the Act outlines the duties/obligations of the Wildlife Conservation and Compensation Committee and in particular part (i) states that one of the duties of the committee is to review and recommend claims resulting from loss or damage caused by wildlife for payment or compensation. It further argues that upon this review, the committee proceeds to recommend the same for approval to the Cabinet Secretary who then scrutinizes the claims and where appropriate may award compensation to the aggrieved claimant.

26. On this basis, the respondent argues that it has no locus standi in the decisions concerning compensation for loss or damage sustained due to human-wildlife conflict.

27. The appellant on her part contends that the respondent is mandated to pay compensation for death and injury caused to natural persons as per the third schedule as read with sections 7 (c), 19 (1) (a) and 25 (2) of the Wildlife Conservation and Management Act, 2013. It cites the cases of Kenya Wildlife Service –vs- Rift Valley Agricultural Contractors Limited (2018) eKLRand Kenya Wildlife Services –vs- Kinyua Ikabu (2019) eKLR in support of her case.

28. The Wildlife Conservation and Management Act, No 47 of 2013, sets out an elaborate mechanism for compensation arising out of death or injury caused by wild animals specified under the third schedule of the Act. Under section 7 of the Act, the respondent is mandated to set up county wildlife conservation committees. The section stipulates that:7 (c) ‘The functions of the service shall be to set up a county wildlife conservation committee in respect of each county.’

29. The functions of the County(Community) Wildlife Conservation Committees are set out under section 19 of the Act and include inter alia:19 (1) (a) ‘Review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife.’

30. Section 24 of the Act establishes the wildlife compensation scheme which shall be used for financing compensation claims for human death or injury or crop and property damage caused by wildlife.

31. The procedure for compensation is well stipulated under section 25 of the Act which provides as follows:25. Compensation for personal injury or death or damage to property(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:(a)In the case of death, five million shillings;(b)In the case of injury occasioning permanent disability, three million shillings;(c)in the case of any other injury, a maximum of two million shillings, depending on the extent of injury.

32. A reading of these provisions clearly shows that the respondent plays an integral role in compensation for personal injury or death or damage to property under the Wildlife Conservation and Management Act, No 47 of 2013. The respondent is mandated to set up county wildlife conservation committees under section 7 (c) of the Act which review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife as provided under section 25 of the Act.

33. This role was succinctly discussed by the Supreme Court in Kenya Wildlife Service –vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No 11 of 2015 (2018) eKLR where the court decided as follows at paragraph 65 of the judgment:‘It follows, therefore, that though the government would ideally be expected to have control of the wildlife, factually it was KWS which had the duty of control of the wildlife by dint of section 3A of the Wildlife Act (sic). Consequently, the liability for the damage occasioned falls on it.’

34. The court went on to further decide that:‘A global comparison of laws and jurisprudence relating to animal and wildlife management normally provide that an entity charged with such a management task also collects the revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation for damage made by animals and wildlife. The Wildlife Act (sic) gives responsibility to Kenya Wildlife Service as the park revenue collector to compensate for damage occasioned by wild animals.’

35. Further, in Kenya Wildlife Service –vs- Kinyua Ikabu, Civil Appeal No 49 of 2017, (2019) eKLR the High Court cited with approval the Supreme Court decision in Kenya Wildlife Service –vs- Rift Valley Agricultural Contractors Limited (supra) and decided that:‘To this day, Parliament is yet to make regulations towards implementation of the Wildlife Conservation and Management (Compensation Scheme) Regulations 2015. Hence, the appellant (KWS) still has the mandate to award compensations to persons injured due to the human-wildlife conflict’

36. The tribunal is guided by the above decisions and finds that the respondent has the duty to award compensations for personal injury or death or damage to property occasioned by wildlife as set out under the Wildlife Conservation and Management Act, No 47 of 2013.

C. What orders should the tribunal make? 37. Having found that the respondent has a duty to award compensations for personal injury or death or damage to property occasioned by wildlife as set out under the Wildlife Conservation and Management Act, No 47 of 2013, the tribunal will proceed to determine whether the appellant is entitled to the reliefs sought in the notice of appeal.

38. The appellant at paragraph 6 of the notice of appeal dated March 2, 2020 seeks ‘full compensation according to the rates stipulated in relevant policy and law.’ The appellant does not however provide particulars for this claim. This leaves the tribunal with the power to exercise its discretion with regards to the prayer sought by the appellant.

39. In her compensation claim form for persons injured/death caused by wildlife, the Kajiado County Compensation Committee approved the claim at Kenya Shillings five million (Kshs 5,000,000/=). The tribunal finds that there was no sufficient basis by the respondent for rejection of the claim since sufficient evidence was adduced to prove that the deceased was killed by a hyena.

40. Further, the compensation of Kenya Shillings five million (Kshs 5,000,000/=) was duly approved by the respondent through the Kajiado County Compensation Committee under section 19 (1) (a) of the Wildlife Conservation and Management Act, No 47 of 2013. The tribunal is thus inclined to award this sum to the appellant.

41. For the above reasons, the tribunal makes the following orders:a.The appeal is hereby allowed;b.The respondent shall pay to the appellant the sum of Kenya Shillings five million (Kshs 5,000,000/=) being compensation for the death of Josphat Gathumbi caused by a hyena at Kandisi in Ongata Rongai, Kajiado County on May 27, 2015; andc.The respondent shall bear the costs of the appeal.Parties’ attention is drawn to provisions of section 130 of the Environment Management and Co-Ordination Act.

DATED AT NAIROBI THIS 28th DAY OF September 2022MOHAMMED S BALALA........................CHAIRPERSONCHRISTINE MWIKALI KIPSANG........................MEMBERBAHATI MWAMUYE......................MEMBERWAITHAKA NGARUIYA.....................MEMBERKARIUKI MUIGUA....................MEMBER