https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8771

MAO & another (Suing as Next Friend of BOA Minor) v Kenya Wildlife Services (Criminal Appeal E084 of 2024) [2026] KEHC 8771 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8771 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E084 of 2024 LM Wachira, J June 19, 2026 Between MAO 1st Appellant MOO 2nd Appellant Suing as Next Friend of BOA Minor and Kenya Wildlife Services Defendant (Being a first appeal arising from the judgment and Decree of Hon. E. A. Obina, SPM delivered on 19th March, 2024 in the original Kisumu CMCC No. 391 of 2017) Judgment Background 1.The appeal arises from the judgment and decree of the Chief Magistrate’s Court at Kisumu delivered on 19th March, 2024 in Kisumu CMCC No. 391 of 2017, where the learned trial Magistrate dismissed the Plaintiff’s suit on the ground that the Plaintiff had failed to establish negligence on the part of the Defendant, on a balance of probabilities. 2.The Appellant/Plaintiff being dissatisfied with the Judgment, filed the instant appeal, seeking to set aside the lower court decision, and in its place pleading to have the suit in the lower court allowed as was prayed in the plaint. Trial Court Evidence 3.The Appellant had sued the Defendant in the lower court praying for general damages of pain suffering and loss of amenities, the costs of the suit and interest in respect of injuries occasioned by a snake bite on the 27th November, 2015. The Plaintiff’s case was that on the material date, the minor was playing with his friends. He was bitten by a brown snake on his right leg and it then disappeared to a thicket. The Plaintiff told court that the minor was taken to hospital and treated and therefore they sought damages for the said injuries. 4.The plaint filed in court on the 17th July 2017 blamed the Defendant/Respondent for the injuries, claiming that the Respondent had exposed the minor to risk, they had failed to fence, tame or keep a proper watch for the wild animals and therefore allowing the accident to occur. The Plaintiff alleged that the Defendant/Respondent had used poor equipment for fencing. 5.The Respondent had denied the accident and any negligence attributed to it. It stated that the suit was misconceived in law and the Respondent had no knowledge of the incident. 6.The Respondent had challenged the jurisdiction of the court to handle such a claim (if indeed it existed) and stated that under Section 25 of the Wildlife Conservation and Management Act, any person who suffers bodily harm from any animal ought to make an application to the County Wildlife Conservation and Compensation Committee for consideration of the claim and recommendation on award of compensation and any Appeal would only lie to the National Environment Tribunal and the second and final Appeal to the Environment and Land Court according to Section 25(6) of the Act. 7.The Defendant had sought to have the suit dismissed for lack of jurisdiction and secondly for failure to establish negligence on the part of the Defendant. 8.The question of jurisdiction was heard through a preliminary objection. The Preliminary objection was dismissed by the trial court on the 17th May, 2018, with the finding that the court had jurisdiction. The suit went to full trial and the Court dismissed the Plaintiff’s case for failure to establish negligence. The Plaintiff/Appellant filed a Memorandum of Appeal with Eight [8] grounds of appeal, as follows:-i.The Learned Magistrate Trial Magistrate misdirected himself in law in failing to consider and make a finding on the issue of negligence.ii.The Learned Magistrate erred in law and in fact in reaching his decision on liability and quantum of damages without analyzing the entire evidence on record.iii.The Learned Magistrate erred in law and in fact in failing to hold that the Respondent solely contributed to the occurrence of this incident when the available evidence clearly did not absolve it from blame.iv.The Learned Magistrate erred in law and in fact in his analysis of the evidence in holding that the Appellants were not entitled to general damages as they failed to establish what the Respondent should or should not have done.v.The Learned Magistrate erred in not making an award for damages when there was evidence led to show that the minor suffered injuries as a result of the attack by wild animal and merely based his decision on the allegation that the Appellants could not guess where the snake came from and that they only blamed the Respondent who is the custodian of all wild animals in the Republic of Kenya.vi.The Learned Magistrate misdirected himself into arriving at a decision and Judgment that was obviously wrong and against the law, and also against the weight of evidence offered at the hearing.vii.The Learned Magistrate erred in law and fact in failing to consider or sufficiently consider the evidence, written submissions, tendered by the Appellant's counsel and in failing to consider the relevant Authorities tendered therewith as a whole.viii.The Learned Magistrate erred in law and fact in otherwise failing to exercise his discretion in a proper manner resulting in injustice to the Appellant. Analysis and Determination 9.This Court sitting as the first appellate court, is obligated to reconsider and re-evaluate the entire evidence on record and draw its own conclusions, as if it was a court of first instance, bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. 10.This jurisdiction on appeal has been succinctly stated by the Court of Appeal in Selle & Another vs Associated Motor Boat Co. Ltd [1968] EA 123, where the Court held that an appellate court is obligated to reconsider the evidence, evaluate it afresh, and draw its own conclusions, taking into consideration the fact that it did not see or hear the witnesses. In the above case, the court held as follows, “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 allowance in this respect.” 11.The Court of Appeal echoed the same principles in Peters v Sunday Post Ltd [1958] EA 424, stating that: “An appellate court is not bound to follow the trial court’s findings of fact if it appears that the court failed to take into account particular circumstances or probabilities, or if the decision is plainly wrong.” 12.I will therefore proceed and re-examine the pleadings herein, the evidence adduced at trial and the decision of the learned Magistrate to determine whether the Appellant discharged the burden of proof so as to be entitled to the award of damages as sought in the plaint. Issues for Determination 13.I have considered the evidence adduced at the trial court, the grounds of Appeal and the submissions by the Appellant. It is important to point out at this stage that the Respondent did not file any submissions at the Appellate stage. Upon considering the Record of Appeal and the Submissions herein, I will frame the following two issues for determination;i.Whether the Appellant had established negligence and therefore liability against the Respondent.ii.Whether the trial Magistrate had erred in failing to award damages to the Appellant despite the injuries. Whether the Appellant had established negligence and therefore liability against the Respondent. 14.The Appellant had pleaded negligence on the part of the Respondent and listed the particulars of negligence. These were listed in paragraph 5 of the plaint and I will set them out as pleaded.i.Exposing the Plaintiff to a risk they knew or ought to have knownii.Failing to fence or do proper fencing for wild animalsiii.Permitting or allowing the accident to occur.iv.Failing to tame the wild animalsv.Using poor equipment for fencingvi.Failing to prevent the accident from occurringvii.Generally failing to abide by the Kenya wildlife service code and rules. 15.It was therefore the duty of the Appellant to avail evidence to prove the particulars of negligence as listed in the pleadings. Such evidence would be that indeed the offending snake had escaped from its fenced sanctuary – because the Defendant had not properly fenced, and that the Defendant was aware of the escape and did nothing to ensure that the snake is brought back to the sanctuary so that the minor and the residents of the area are not exposed to danger. 16.I have evaluated the evidence on record. There in no evidence whatsoever that the offending snake had come out of some park or sanctuary. There is no evidence that there was any national park or snake park that was not properly fenced anywhere near the scene of the accident, and there is no evidence whatsoever that the Defendant/respondent was aware that there was a snake roaming around the area and did nothing about it. It was upon the Appellant to avail such evidence, to demonstrate to the court that indeed the respondent was negligent and that the negligence of the Respondent caused the injuries that are complained of. This evidence was not availed. 17.As properly held in Kenya Wildlife Service Vs George Odhiambo Were (2019)KEHC 2788 (KLR), Karanja J. in dealing with a similar issue held:-“It was therefore incumbent upon the respondent to prove on a balance of probabilities that the appellant was negligent and/or in breach of its statutory duty by its failure to prevent the snake from straying into the respondent’s homestead from the national park or failing to secure and keeping it from escaping to human dwellings”. 18.The court went on to find that:-“the respondent did not discharge its burden of proving negligence on the part of the appellant as the evidence adduced by himself and his witness (PW3) in that regard was insufficient and largely based on conjecture……..There was no evidence that the offending serpent actually strayed from the Ruma National Park or that it escaped from there. It is a matter of common knowledge that snakes habitats include water, forests, deserts, grasslands, bushes and shrubs. ……..A bushy or unkempt homestead would easily attract a snake from other habitats.” 19.I agree with my brother, and find that indeed there was no evidence whatsoever, demonstrating to this court that the Respondent herein was negligent or in breach of its duty. It is also common knowledge that snakes can be found in bushes in certain weather conditions. Snakes can also move around while in transit or even in search of food and water. 20.In any event, if the Appellant was keen to establish liability, they should have endeavored to prove that the Respondent was aware of prevalence of snakes in the particular area and did nothing to tame them. In Eastern Produce (K) Limited vs Ezekiel Kipchoge (2014) KEHC 1529 (KLR) GW Macharia J, (as she then was) held:-“In any case, the Respondent failed to cite the prevalence of snakes in that locality and particularly in the tea bushes. Had this been done, probably, the court would have found that, with high prevalence of snakes, the Appellant ought to have provided protective apparels that would prevent workers from snake bites. But this burden was not discharged by the Respondent. As I stated in my own Judgment in the case of Eastern Produce (k) Limited -vs- Amos Malezi Talia Eldoret High Court Civil Appeal No. 47 OF 2000, a party must demonstrate that it was within the knowledge of the Appellant that a snake would enter the tea bushes. I did also note that common knowledge has it that snakes can run into an area that is not ordinarily their habit for refuge, food or transit. This was the scenario presented in this case as the Respondent stated that the bite was purely accidental”. 21.My finding is that even in the instant case, negligence has not been established against the Respondent in any way and therefore liability would not attach. The trial Magistrate did not therefore err in dismissing the Plaintiff’s suit for lack of evidence on negligence. Whether the trial Magistrate had erred in failing to award damages to the Appellant despite the injuries. 22.It follows that if liability has not been established, then the trial Magistrate was right in not proceeding to assess damages. It is correct that the minor was bitten and he suffered injuries. But without proof of negligence, the trial court would not assess damages. 23.The upshot of the matter is that the Appellants Appeal herein lacks merit and the same is dismissed. 24.Considering the injuries in question as indicated on the discharge summary and the age of the victim and the full circumstances surrounding the occurrence of the incident, and the fact that the Respondent did not file submissions in opposition to the Appeal, I will direct that each of the parties shall bear its costs. 25.Orders accordingly. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE, 2026............................L. M. WACHIRAJUDGEIn the Presence of:Lindsy – court assistantMiss Mwilolo………………………………… -for the Appellant.N/A……………………………………. -for the Respondent.