[2022] KENET 781 (KLR)

Masha v Kenya Wildlife Service (Tribunal Appeal 37 of 2020) [2022] KENET 781 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KENET 781 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 37 of 2020

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

October 19, 2022

Between

Jackson Nzaro Masha

Appellant

and

Kenya Wildlife Service

Respondent

Judgment

1. This appeal is brought pursuant to the provisions of section 25(6) of the Wildlife Conservation and Management Act No.47 of 2013 (“the Act”) that confers jurisdiction on this Tribunal to hear appeals arising from the decision of the Respondent on claims made under section 25 of the Act with respect to injuries caused by any of the wild animals listed under the third schedule therein.

2. Following a snake bite incident on 19th November, 2014, the appellant, Jackson Nzaro Masha, received a call informing him that his mother Nyevu Masha Jefwa had suffered a snake bite and rushed to Maduguni Dispensary, and filed a claim to the County Wildlife Conservation and Compensation Committee seeking compensation, in accordance with the procedure set out in law. The claim was rejected though a letter dated 7th October 2019 and the letter informed the Appellant that his claim was rejected due to the inconsistencies narrative provided to support the claim.

3. Consequently, the Appellant filed this appeal to the Tribunal on 1st September 2020.

4. The grounds of appeal alleged that the appellant’s mother one Nyevu Masha Jefwa had been bitten by poisonous snake and that the committee determining the matter failed to afford him a hearing on his claim or on assessment of damages.

5. The Respondent entered appearance through the firm of MS Mithega & Kariuki. They denied liability noting to state that their function/ role involves protection, conservation and management of wildlife and does not owe the Appellant any duty of care that is clothed with any right of action for compensation.

6. At the close of the case for the appellants and the respondents all parties were permitted to file written submissions and highlight on the same.

7. The fact that the appellant was bitten by a snake is uncontested. The only issues in dispute are that the Respondent is wrongly enjoined in this suit it doesn’t play any part or role in the compensation process. The second issue being that the dispute resolution mechanisms were not followed.

8. The Respondent submitted that the claim by the Appellant was unfounded and merely asked for dismissal while suggesting 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.

9. The Respondent also stated in the submissions that the statutory procedure for dispute settlement provided under the Wildlife Conservation and Management Act, No.47 of 2013 is mandatory and its limits court’s original jurisdiction to hear and determine disputes relating to management, protection and conservation of wildlife.

10. The Respondent’s submissions also urged the court to dismiss the appeal and introduced a new angle to the matter on a preliminary point. In its opinion, they are a separate entity from the Ministerial Wildlife Conservation Compensation Committee (MWCCC) and are erroneously joined in these proceedings.

Determination 11. We have carefully considered the submissions by both parties in this appeal as well as the District committees’ decision appealed from and the testimony of the witnesses during the hearing. In our view, the grounds of appeal raise the following key issues for determinationa.Whether the claim by the appellant against the decision of the committee was sustainable.b.Whether the appellant discharged the burden of proving liability to the required standard.c.If liable, what is the quantum of compensation to be awardedd.Who is to pay this compensatione.What orders should this court makef.Who should bear the costs of the appeal

12. Following the appellant’s mother’s snake bite encounter he filed an appeal to the District committee 20th November, 2014.

13. The Committees modus operandi in handling these claims does not involve giving any claimant an opportunity to be heard or to ventilate his claim.

14. The Claimants has raised this as one of the issues in their appeal to show that the committee violated their right to a fair hearing. We agree. The manner of proceeding by the Kilifi County Wildlife Conservation and Compensation Committee appears to be one adopted prior to the new Constitution of Kenya 2010 or the passage of the Fair Administrative Act, 2015 and carried over to date. It does not meet the threshold for fairness as envisaged by law as the claimant is never given an opportunity to rebut any negative opinion.

15. Kenya’s wildlife resources are a valuable heritage for this country and its conservation is paramount. The Respondents and the institutions falling under the Wildlife (Conservation and Management) Act No.47 of 2013 are tasked, by law, to ensure the preservation and management of wildlife. With this responsibility is the rights bestowed on people injured or killed by wildlife. This right is also vital and given statutory backing by the compensation scheme under section 25 of the Act. The manner in which claims for injury or death are handled as a result of wildlife cannot be done causally by the mandated authorities. There must be respect for both wildlife and human life by the organs concerned. Claims have to be dealt with seriously and at the very least within the legal and constitutional threshold of fairness in considering the evidence before it by giving affected persons a chance to be heard and to present any medical evidence they may have to support their claims. In this case the County Wildlife Conservation and Compensation Committee did not meet that minimum threshold when considering this claim.

16. The committee finding the narratives are inconsistent is not sustainable in law and must be set aside.

17. The tribunal believes the Respondent’s explanation as stated above isn’t sufficient as the evidence provided by the Appellant indicate that the accident occurred on the 19th November, 2014 and was rushed to the Madunguni Dispensary. After two hours, she was confirmed dead before arrival at Malindi Hospital.

18. The Appellant produced certificate of death issued on 21st November, 2014 indicating that the deceased cause of death was cardiopulmonary arrest due to neurotoxic poison from a black mamba snake.

19. From the evidence we are persuaded that the appellant was bitten by a black mamba. The effect of poison resulted in the deceased suffering a cardiopulmonary arrest due to neurotic poison. On a balance of probability the appellant has laid sufficient evidence to justify a finding that his mother was bitten by a poisonous snake. Upon discharge of this burden the same shifts to the Respondent who did not produce sufficient evidence to displace the proof tendered by the appellants and that the inconsistencies of narrative is hereby treated as a technicality and this doesn’t really dispute the fact that she was bitten by a snake.

20. To this extent, the appellant has satisfied the burden of proof that his mother was bitten by a poisonous snake and passed away from it.

21. Costs follow the event and are in the discretion of the court. They are awarded to the successful party unless there is good cause why this tribunal should award costs. We will deal with this issue later in the judgment.

22. On the preliminary point we agree with the Respondent submissions that ultimately it is the Compensation Committee who is responsible for compensation and not the Respondent.

23. Pursuant to Section 25(1) (2) and (3) of the Act, the County Wildlife Conservation and Compensation Committee are mandated to hear any claims causing death or injury to persons and upon verifying the claim to submit a recommendation to the Cabinet Secretary. Where the claim is for loss or damage to crops livestock or property, on the other hand, the County Wildlife Conservation and Compensation Committee is to verify the claim under Section 25(4) of the Act and make a recommendation to the Kenya Wildlife Service.

24. The Respondent is only mandated to consider the verified claims with respect to loss or damage to crops livestock or property and not death or injury to human beings which is specifically reserved for the Compensation Committee consideration. Accordingly, the presence of the Kenya Wildlife Service logo present on the letter head to the Appellant on 7th October 2019 may have been hard for a lay man to comprehend.

25. The presence of Kenya Wildlife Service logo caused confusion to the Appellant and thus their joinder in this proceeding. The Tribunal will follow Article 159(d) of the Constitution which states that:“Justice shall be administered without undue regard to procedural technicalities”

26. Following the above, the compensation shall be borne by the Kenya Wildlife service.

27. The Tribunal has power to set aside the decision of the County Wildlife Conservation and Compensation Committee and give recommendation to the Cabinet Secretary.

OrderFor the reasons stated, the Tribunal makes the following orders:a)The appeal against the decision of refusal to recommend an award by the Kilifi County Wildlife Conservation and Compensation Committee and Kenya Wildlife Service is hereby allowed.b)The tribunal recommends to the Cabinet secretary for payment to the appellant of a sum of kshs.2,000,000/= as compensation.The parties’ attention is drawn to the right of appeal pursuant to the provisions of Section 25(6) of the Wildlife (Conservation and Management) Act No.47 of 2013

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH DAY OF OCTOBER 2022. Mohammed S. Balala.................ChairpersonChristine Kipsang............Vice ChairpersonBahati Mwamuye.......................MemberWaithaka Ngaruiya....................MemberKariuki Muigua.......................Member