https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8432

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E070 OF 2024** **MARICELLA KARIE ………………. APPELLANT** **Versus** **KENYA WILDLIFE SERVICE ……………. RESPONDENT** **JUDGEMENT** **Introduction** 1. This appeal arises out of the judgement of the court in Meru Small Claims Court Case No. E030 of 2024 delivered on 30/04/2024 in which the trial magistrate dismissed the Appellant’s claim for compensation for crops destroyed by wild animals. 2. The Appellant was the Plaintiff in the suit and he had sued the Respondent, defendant in that matter, seeking a sum of Kshs. 676,000/= being compensation after his crops were destroyed by a herd of Elephants that escaped from Meru National Park and invaded his farm. 3. Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated 20/05/2024 with the following listed grounds; 1. The Learned Trial Magistrate/Adjudicator erred in law by dismissing the claimant’s claim brought vide statement of claim dated 18th March, 2024. 2. The learned Trial magistrate erred in law by finding that the claimant had not proven special damages being the value of crop damaged despite there being a verification form confirming that indeed crops were damages. 3. The learned trial magistrate erred in law by apportioning liability at 80:20 but still went ahead to dismiss the claimant’s claim. 4. The learned trial magistrate/adjudicator Erred in law by disregarding the evidence of the agricultural officer who in deed confirmed that he went to the ground and assessed the value of crops damaged, he came up with a report that properly tarried with what was captured in the verification form. 5. The learned trial magistrate/Adjudicator erred in law by visiting the mistakes of the agricultural officer on the appellant herein where the trail magistrate went to the acceptability of the formulae applied by the agricultural officer without a contrary opinion from another expert thus arriving at an erroneous decision of dismissing the entire claim with cost. 6. That the Honourable trial magistrate/Adjudicator misdirected herself as to the facts and evidence of the case thus arriving at an erroneous decision. 7. That the Honorable trial magistrate’s judgment as a whole is not supported by the evidence that was tendered in court by the parties. 4. The Appellant prayed for the appeal to be allowed and the judgment delivered on 30/04/2024 be set aside and judgement be entered for the Appellant. He also prayed for the costs of this appeal to be provided for. **Appellant’s submissions** 1. In her written submissions dated 4th November, 2024, the Appellant argued that the trial court erred in law and fact by dismissing her claim against the Respondent for crop destruction. The Appellant contends that the trial adjudicator improperly evaluated the evidence of the expert agricultural officer and wrongly visited administrative or structural mistakes of the officer upon her, leading to an erroneous decision that denied her a legal remedy despite a finding of 80% liability in her favor. 2. The Appellant submitted that the trial court wrongly interpreted the expert opinion of the agricultural officer, Robert Sakora, who valued the extent of the crop damage. She argued that while expert opinions are not strictly binding on a court, they must be given proper attention, especially when unchallenged by a contrary expert opinion. To buttress this position, the Appellant relied on the Court of Appeal decision in *Parvin Singh Dhalay v Republic [1997] eKLR* to show that the court must give proper respect to expert opinions. 3. Consequently, the Appellant maintained that the appeal is merited, the trial court's judgment should be set aside in its entirety, and independent judgment entered in her terms. She further submitted that costs follow the event, praying that she be awarded the costs of both the trial court and the instant appeal. **Respondent’s submissions** 1. In its written submissions dated 1st September, 2025, the Respondent argued that the Appellant’s appeal against the judgment of the Small Claims Court delivered on 30th April, 2024, lacks merit and should be dismissed with costs. 2. On whether the trial court had jurisdiction to hear and determine the appeal, the Respondent submitted that the trial court lacked original jurisdiction because the statutory authority to verify, review, and recommend compensation for wildlife-induced crop damage is exclusively vested in the County Wildlife Conservation and Compensation Committee under Sections 18 and 25 of the Wildlife Conservation and Management Act, 2013. It argued that under the doctrine of exhaustion, where a parent statute provides a specific, specialized dispute resolution mechanism, a claimant must exhaust that administrative avenue before approaching the courts. To buttress this position, the Respondent relied on the Court of Appeal decisions in ***Kenya Wildlife Service v Kanini [2024] KECA 1127 (KLR)*** and ***Peter Muturi Njuguna v Kenya Wildlife Service [2017] KECA 42 (KLR)***, demonstrating that approaching the court first bypasses mandatory statutory forums. 3. Furthermore, the Respondent pointed out that the Appellant had already lodged her claim with the County Committee, which had actively deliberated upon it. Consequently, the Respondent argued that pursuing a parallel court process based on the same facts constitutes an abuse of the court process and creates a risk of double benefit and unjust enrichment. To support this, reliance was placed on ***Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR*, *Kimani Wanyoike v Electoral Commission & another [1995] KECA 128 (KLR)*, and *Kenya Wildlife Service v Awuor [2023] KEHC 3721 (KLR)***, where proceedings were stayed pending the determination of the statutory committee. 4. The Respondent further submitted that the appeal fails to meet the mandatory requirements of Section 38 of the Small Claims Court Act, which limits appeals strictly to matters of law. It contended that the Appellant’s grievances center on factual contradictions between the crop damage verification forms and the assessment report, specifically regarding figures that the agricultural officer, Kimathi Ngari, could not reconcile or explain making it a challenge on facts rather than law. The Respondent further argued that special damages must be strictly proved, and since the conflicting evidence rendered the expert report unreliable, the trial court was entirely justified in disregarding it. The Respondent maintained that an expert opinion is meant to assist, not replace, the court’s judgment, and may be rejected if found to be speculative or illogical. **Analysis and determination** 1. This is the first appeal. My duty as the 1st appellate court is to re-evaluate and re- examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 2. I note that the Respondent has raised a question on the jurisdiction of the trial court to hear this matter before the Appellant explored statutory avenues under section 25 of the Wildlife Conservation and Management Act. 3. Therefore, before I can proceed to examine the merits of the appeal, this court must first satisfy itself that the proceedings in the court below were properly founded in law. Jurisdiction is a threshold question that precedes any inquiry into the merits of a dispute. As was stated by the Court of Appeal in ***Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1***, *“…jurisdiction is everything; without it, a court must down its tools. A court that proceeds without jurisdiction renders its proceedings a nullity, however well-intentioned…” [Emphasis added].* 4. Although the Respondent did raise this issue in its Response to the Statement of Claim at the trial court the same has been raised in its submissions on appeal, the trial court did not directly address or resolve the jurisdictional question, proceeding instead to determine the suit on the merits. 5. Section 25 of the Act establishes the statutory framework for compensation of persons affected by human-wildlife conflict. The relevant provisions read as follows: *“(1) …* *(2) …* *(3) …* *(4) Any person who suffers loss or damage to crops, livestock or other property from wildlife specified in the Seventh Schedule hereof and subject to the rules made by the Cabinet Secretary, may submit a claim to the County Wildlife Conservation and Compensation Committee who shall verify the claim and make recommendations as appropriate and submit it to the Service for due consideration.* ***(5) The County Wildlife Conservation and Compensation Committee shall review the claim and award and pay a compensation valued at the ruling market rates: Provided that no compensation shall be paid where the owner of the livestock, crops or other property failed to take reasonable measures to protect such crops, livestock or property from damage by wildlife or his land use practices are in compatible with the ecosystem-based management plan for the area.*** ***(6) A person who is dissatisfied with the award of compensation by either the County Wildlife Conservation and Compensation Committee or the Service may within thirty days after being notified of the decision and award, file an appeal to the National Environment Tribunal and on a second appeal to the Environment and Land Court.*** (7) …” 1. I have looked at the record of appeal and it is evident that the Appellant acknowledged that she reported the incident to the Respondent's Meru Station and filled the pertinent KWS Compensation forms for processing. The Respondent, for its part, admitted and did not contest the fact that the claim was submitted to and deliberated upon by the County Wildlife Conservation and Compensation Committee. 2. The critical question therefore is whether the Appellant exhausted statutory avenues and followed the appellate ladder prescribed in the Act before filing a claim before the trial court. 3. The doctrine of exhaustion of statutory remedies is well-settled in Kenyan jurisprudence. I take cognizance of the Supreme Court decision in [***Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme)) [2019] KESC 83 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2019/83/eng%402019-11-08) where the court held that even where superior courts have jurisdiction to determine profound questions of law, the first opportunity must be given to the relevant persons, bodies, tribunals, or other quasi-judicial authorities to deal with the dispute as provided for in the relevant parent statute. 4. The same principle was applied by the Court of Appeal in [***Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome) [2024] KECA 1127 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1127/eng%402024-09-06), where the court while emphasizing on the objective of section 25 of the Act stated that; ***“…In our considered view, the intention of the framers of section 25 of the Act was to cause claimants who had been injured, or those persons whose relatives had died, by actions of wildlife, to benefit from the dispute resolution mechanism under the Act; a mechanism that was less cumbersome and which would benefit from the specialized knowledge on matters human wildlife interaction. The respondent, instead, opted for the court which, quite unfortunately, did not have the original jurisdiction to hear and determine the dispute…”*** 1. In the present case, The Respondent admitted on record that the Appellant's claim was submitted to and deliberated upon by the County Wildlife Conservation and Compensation Committee. Yet, instead of awaiting the outcome of those deliberations and, if dissatisfied, pursuing the appeal to the National Environment Tribunal and thereafter to the Environment and Land Court as prescribed under Section 25(6) of the Act, the Appellant simultaneously instituted proceedings in the Small Claims Court seeking the same compensation for the same crop destruction incident. I therefore find that the Appellant did not exhaust the available statutory remedies before filing a claim at the trial court. 2. For the foregoing reasons, I find that the trial court lacked the requisite jurisdiction to hear and determine this suit. It bears emphasis that this finding does not permanently foreclose the Appellant's right to compensation. The Appellant retains all rights under the statutory process, including the right to receive a decision from the County Wildlife Conservation and Compensation Committee in respect of her claim, and thereafter to exercise her appellate rights under Section 25(6) of the Act if dissatisfied. **Disposition** 1. The upshot is as follows: 1. The appeal is hereby dismissed. 2. The judgment and decree of the trial court in Meru SCCC No. E030 of 2024 delivered on 30th April, 2024, are hereby set aside as having been made without the requisite jurisdiction. 3. Appellant to first exhaust the available means of dispute resolution as provided for in section 25 of the Wildlife Conservation and Management Act. 4. Given the circumstances of the Appellant, each party shall bear their own costs. It is so ordered. Right of appeal 30 days. Dated, signed and delivered virtually via TEAMS at Nairobi on this 12th day of June, 2026. **Hon. R. A. Oganyo, Mrs.** **Judge.** **In the presence of; -** Court Assistant…Sana Counsel for Appellant…Mr. Mungai present Counsel for Respondent…Mr. Mutai absent.