https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7557

Ndunda v Kenya Wildlife Service (Miscellaneous Civil Suit E283 of 2025) [2026] KEHC 7557 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7557 (KLR) Republic of Kenya In the High Court at Machakos Miscellaneous Civil Suit E283 of 2025 EN Maina, J May 28, 2026 Between Mary Mbithe Ndunda Applicant and Kenya Wildlife Service Respondent Ruling 1.The Applicant herein seeks leave to appeal out of time in respect of a ruling of the Chief Magistrate’s Court at Kithimani which upheld a preliminary objection raised by the Respondent against her claim for compensation for personal injuries, for reason that the court did not have jurisdiction to hear and determine the claim. 2.The explanation given for the delay in preferring the appeal is that the Advocate who was handling the matter went on leave without proper handover; that the delay was not intended or planned and the Applicant ought not to be penalized for the mistake of his Advocate. 3.Learned Counsel for the Applicant has in his submissions, in addition to stating that the reason given for the delay is plausible and constitutes sufficient cause, also argued that the intended appeal is arguable. Counsel also submitted that the Respondent would suffer no prejudice if the leave sought is granted. Counsel urged the court to grant the leave; deem the Memorandum of Appeal herein as duly filed upon payment of the requisite fees and order that costs be in the cause. Counsel placed reliance on the cases of Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR, Rose Ndinda v Kenya Wildlife Services [2018] eKLR and Peter Wasonga Laktar v Bomas of Kenya Limited [2003] eKLR. 4.The application is vehemently opposed. Relying on the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, learned Counsel for the Respondent submitted that the Applicant is not deserving of the exercise of discretion of this court to extend time as she has not done equity as he awaited for 82 days to file an appeal; that the Applicant has not demonstrated the efforts or diligence exercised in pursuing the appeal in that there is no evidence to show that the Applicant took steps to obtain certified copies of the proceedings, judgment and decree from the lower court and that the discretion of this court ought not to be exercised at a whim. Counsel also urged this court to find that the Applicant has approached this court after the lapse of statutory period without any reasonable explanation which is a demonstration of indolence and lack of diligence. In support of their submissions, Counsel placed reliance on the case of Daphne Parry v Murray Alekander Carson [1963] EA 546 cited with approval in the case of Diplack Kenya Limited v William Muthama Kitonyi [2018] KEHC 4858 (KLR) where it was held inter alia, that:“The court must always guard itself against the danger of being ledaway by sympathy, and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to the appellant.” Analysis and determination 5.The power of this court to enlarge time for filing an appeal derives from Section 79G of the Civil Procedure Act which contains a proviso that states:“……….Provided that an appeal may be admitted out of time if the Appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 6.The power to enlarge time is therefore discretionary but must as always be exercised judiciously but never at a whim. Neither should such leave be denied capriciously. 7.From the proviso reproduced above for the Applicant to succeed, they must satisfy the court that they had a good and sufficient cause for not filing the appeal in time. 8.In the present application, the Applicant gives the reason for the delay as her advocate going on leave without proper handover. This in my view is not a plausible or sufficient explanation for such a long delay. The Applicant had a personal responsibility under Section 1A (3) of the Civil Procedure Act to see to it that Advocate acted in good time. He has not presented anything to this court to demonstrate that he followed up or took any steps to ensure that the appeal was filed. He has therefore not demonstrated any good and sufficient cause for the delay as would warrant this court to exercise its discretion in his favour. 9.My finding also gets support from the case of Ngugi v Waweru & another [2025] KEHC 3102 where the court stated:“Extension of time is an equitable remedy that is only available to a deserving party … and the law requires all parties, regardless of legal knowledge or representation, to comply with established procedures.” 10.Also in the case of Simon Oira [2025] KEHC 7211 where it was observed:“An applicant seeking extension of time must provide a satisfactory explanation for the delay; counsel’s error alone is not sufficient.” 11.Further, whereas the Applicant has argued that she has an arguable appeal, as there are decisions to the effect that the court has jurisdiction to hear the claims for compensation under the Wildlife Conservation and Management Act, there is now precedence, from the Supreme Court, that suggests that the position has now shifted. The position now is that given the provisions of Article 159(2)(c) of the Constitution, parties are required to exhaust all alternative dispute resolution mechanisms, provided for under the law, before approaching the court. This is what is referred to as the doctrine of exhaustion. In the case of United Millers Limited v Kenya Bureau of Standards & 5 others (Petition (Application) 4 of 2021) [2021] KESC 72 (KLR) (Civ) (16 July 2021) (Ruling) the Supreme Court stated:“……………(27)We also take judicial notice that the superior courts’ findings on jurisdiction is in harmony with our finding in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] eKLR, wherein we 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 or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute. We emphasized that where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their Jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance.” 12.Section 25 of the Kenya Wildlife Conservation and Management Act provides a mechanism for the compensation of, inter alia, injuries caused by wild animals. That Section states:“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.(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)The Cabinet Secretary may, by notice in the Gazette, prescribe such regulations and guidelines as are necessary and appropriate to carry out the purposes of this section.” 13.The upshot therefore is that this application has no merit as the court below was correct in arriving at its findings which are the subject of this appeal. I am bold to state so as it is the Applicant’s Advocate who has raised issues touching on the merits of the appeal. I would otherwise not do so in an application for leave to appeal out of time as that would amount to determining the appeal before hearing all the facts. This court is also bound by the decisions of the Supreme Court and it would be acting in vain were it to allow the appeal to be filed only for it to be dismissed for reason of want of jurisdiction. 14.The application is therefore dismissed with costs to the Respondent.Orders accordingly. RULING SIGNED, DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 28TH DAY OF MAY, 2026.E. N. MAINAJUDGEIn the presence of:Ms Mureithi for Mutinda for the ApplicantMs Thirikwa for the RespondentMary - Court Assistant/Interpreter