https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8511

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E083 OF 2024** **MORRIS KIRIMI MEME ………………. APPELLANT** **Versus** **KENYA WILDLIFE SERVICES ……………. RESPONDENT** **JUDGEMENT** **Introduction** 1. This appeal arises out of the judgement of the court in Maua CMSS No. E055 of 2022 delivered on 14/05/2024 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, for compensation after his crops were destroyed by a heard of Elephants that escaped from Meru National Park and invaded his tomatoes and water melon farm. 3. Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated 11/04/2024 with the following listed grounds; 1. That the learned Magistrate erred in law and in fact in misdirecting herself on the principles of negligence by failing to find that the respondent owes a duty of care to the appellant and there was breach of that duty which caused injury to the appellant thus arriving at an erroneous finding and decision. 2. That the learned trial Magistrate erred in law and in fact in failing to find that the appellant had proved on a balance of probabilities the elements of negligence against the respondents. 3. That the learned trial Magistrate's erred in law and in fact in failing to find that the appellant had pleaded and proved the special damages which were the damage occasioned to his crops by the elephants. 4. That the learned Magistrate erred in law and in fact in delving into extraneous issues which were not an issue from both parties in their pleadings and evidence. 5. That the learned Magistrate erred in law and in fact in failing to consider the submissions of the appellant. 6. The entire judgment/decrees issued on 14th May 2024 is against the weight of evidence adduced in court. 4. The Appellant prayed for the appeal to be allowed and the judgment delivered on 14/05/2024 be set aside and judgement be entered for the Appellant. He also prayed for the costs of this appeal to be provided for. **Submissions by parties** 1. Parties did not file written submissions for the present appeal. **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. However, before this Court can proceed to examine the merits of the appeal, it 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].* 3. Having considered the record of appeal before this Court, a fundamental jurisdictional question arises on whether the trial court had the requisite jurisdiction to hear and determine this suit, given that the Appellant had not exhausted the statutory dispute resolution mechanism established under the Wildlife Conservation and Management Act, No. 47 of 2013 (hereafter referred to as “the Act”). Although this issue was not raised as a preliminary objection by the Respondent at trial, nor specifically pleaded by either party on appeal, jurisdiction cannot be conferred by consent, waiver, or silence See ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR***. 4. 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) 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*](https://kenyalaw.org/akn/ke/act/2013/47/eng%402025-11-04#part_IV__sec_18)*shall verify a claim made under subsection*[*(1)*](https://kenyalaw.org/akn/ke/act/2013/47/eng%402025-11-04#part_V__sec_25__subsec_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)*](https://kenyalaw.org/akn/ke/act/2013/47/eng%402025-11-04#part_V__sec_25__subsec_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.* 1. 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), the Court of Appeal held that the intention of Section 25 of the Act was to cause claimants to benefit from the specialized statutory dispute resolution mechanism, which was less cumbersome and better placed to deal with human-wildlife conflict matters. The court at paragraph 19 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. The position in ***Purity Kanini*** has since been applied by this Court in ***Woragus Farms Limited v Kenya Wildlife Service [2026] KEHC 1880 (KLR)***, a decision of Ndung’u J. delivered on 18th February 2026. The learned Judge, considering a preliminary objection on identical grounds, upheld the exhaustion doctrine and struck out the suit. 2. I am further guided by the objects of the Act itself. One of the stated objects of the Act under section 5 is to manage human-wildlife conflict and to provide compensation for injuries, deaths, and property damage caused by wildlife. Parliament deliberately created the Committee as a specialised body equipped with the technical knowledge, proximity, and institutional capacity to assess and determine such claims. The Act provides a full appellate ladder where dissatisfied claimants may appeal from the Committee to the National Environment Tribunal, and on a second appeal to the Environment and Land Court under Section 25(6) of the Act. 3. In the present case, it is not in dispute that the Appellant partially engaged the statutory process. He reported the incident to the Respondent, obtained claim forms, and had the agricultural officer complete the crop damage verification form. However, the record shows that the compensation claim forms were never completed, the incident was never formally verified and ascertained by the Respondent as required under the statutory process, and the claim was never submitted to the County Wildlife Conservation and Compensation Committee for review, recommendation, and determination. The Appellant therefore did not exhaust, or indeed properly initiate, the statutory remedy available to him before filing suit in the trial court. 4. It also bears mention that striking out this suit does not permanently foreclose the Appellant’s right to compensation. As was noted in ***Woragus Farms***, the High Court’s jurisdiction is not ousted, it is deferred pending exhaustion of the statutory remedy. Judicial review and appellate recourse remain available to the Appellant once the statutory process has been invoked and concluded. The Appellant retains the right to pursue his claim before the County Wildlife Conservation and Compensation Committee, and to thereafter exercise his appellate rights under Section 25(6) of the Act if dissatisfied. 5. For the foregoing reasons, I find that the trial court lacked the requisite jurisdiction to hear and determine this suit, as the Appellant had not exhausted the statutory mechanism established under Section 25 of the Act before filing suit. The proceedings before the trial court and the judgment delivered on 14th May 2024 are accordingly a nullity. **Disposition** 1. Having found that the trial court lacked jurisdiction, it is not necessary or appropriate to consider the grounds of appeal on the merits and the appeal is hereby dismissed. 2. The upshot is as follows: a. The appeal is hereby dismissed. b. The judgment and decree of the trial court in Maua CMCC No. E055 of 2022 delivered on 14th May 2024 are hereby set aside as having been made without jurisdiction. c. The striking out is without prejudice to the Appellant’s right to file a fresh claim before the County Wildlife Conservation and Compensation Committee pursuant to Section 25 of the Wildlife Conservation and Management Act, No. 47 of 2013, and to exercise any further rights of appeal under Section 25(6) of the Act upon conclusion of that process. d. 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 virtually delivered via TEAMS at Nairobi on this 5th day of June, 2026. **Hon. Roseline A. Oganyo, Mrs.** **Judge.** **In the presence of; -** Court Assistant…Sana Counsel for Appellant…No appearance Counsel for Respondent…Mr. Gideon Muta