[2022] KENET 713 (KLR)

Muchiri v Ministerial Wildlife Conservation and Compensation Committee (Tribunal Appeal 53 of 2020) [2022] KENET 713 (KLR) (Environment and Land) (28 September 2022) (Judgment)

Neutral citation: [2022] KENET 713 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Environment and Land

Tribunal Appeal 53 of 2020

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

September 28, 2022

Between

Catherine Njoki Muchiri

Appellant

and

Ministerial Wildlife Conservation and Compensation Committee

Respondent

Judgment

Background to to Dispute 1. The Appellant instituted the appeal vide a Notice of Appeal dated December 8, 2020 under Rule 4 (1) of the National Environment Tribunal Procedure Rules. The Appeal is against the decision of the Respondent, The Ministerial Wildlife Conservation and Compensation Committee, rejecting the Appellant’s claim for compensation due to lack of a verification form.

2. The Appeal emanates from the destruction of the Appellant’s farm in Katakala location on July 17, 2014 when Zebras invaded her farm and completely destroyed about 6 acres of fully grown maize.

3. In support of her Appeal, the Appellant raised one ground of Appeal, that is, she had submitted a verification form dated July 22, 2014.

4. The Appellant is seeking for the following reliefs from the Tribunal:a.Compensation;b.Damages; andc.Review of amount considered as compensation.

Parties’ Submissions Appellant’s Submissions 5. In support of the Appeal, the Appellant filed written submissions, in Kiswahili language, which were not dated.

6. The Appellant submits that she planted maize and beans on her farm. Antelopes destroyed the beans in her farm but she did not report. However, on July 17, 2020 zebras invaded her farm and destroyed six acres of her maize which were fully grown.

7. The Appellant further submits that she reported the incident at Narok Police Station, KWS offices at Ewaso Nyiro, to the Agricultural Officer and to the Chief.

8. It is the Appellant’s submissions that all the above-mentioned persons visited her farm and confirmed that all the six acres had been destroyed and they all suggested that she be compensated.

9. The Appellant submits that she took her form to Ewaso Nyiro where she was told that everything is ok. It is her submission that she kept calling frequently but she was told to wait for them to call her.

10. The Appellant further submits that after six years she was called and told to go on December 4, 2020. It is her submission that upon going there on December 7, 2020, she was shocked when she was given a form informing her that she would not get compensation because of lack of a verification form.

11. It is the Appellant’s submission that she met a girl at the office and after showing her documents in her possession, she showed her the form which she would attach to her documents and told her that this was the verification form. The Appellant submits that she was advised by the girl she met at the office to go to Langata and appeal before the end of the month.

12. The Appellant submits that she went to the National Environment Tribunal to get justice where she seeks for:a.Compensation;b.Review of amount considered as compensation; andc.Compensation for what she went through because of this case for those six years.

13. The Appellant’s further submits that she was unable to go back to Ewaso Nyiro due to the lockdown.

14. It is the Appellant’s submission that she did her obligation as she even went a step further and rented out a vehicle which she ferried the Agricultural Officer to her farm.

15. The Appellant submits that it was the obligation of the office to write and confirm that all the forms were in order before forwarding them to the Respondent, The Ministerial Wildlife Conservation and Compensation Committee.

16. The Appellant further submits that she was called after six years and she would have been informed about the verification form earlier. It is the Appellant’s submissions that she has a right to get compensation as it is not her fault.

17. On Kshs. 64,800 as compensation, the Appellant submits that this amount is too little as she has invested more money and it exceeds Kshs.20,000 per acre.

18. The Appellant submits that she even calculated with the Agricultural Officer, upon confirmation that the six acres had been completely destroyed and she was expecting between Kshs. 70,000 to Kshs. 75,000 per acre. It is the Appellant’s submissions that she was expecting a total of Kshs. 450,000 for the six acres.

19. The Appellant further submits she has gone through a lot of life challenges as well as mental challenges because of this case. It is the Appellant’s submissions that she had taken out a loan in order to lease the farm and to buy farm inputs. She was not able to repay the loan on time.

20. The Appellant prays that the Tribunal ensures that justice is done as she did as she was directed and the office should be held accountable with regard to the verification form.

Respondent’s Submissions 21. The Respondent filed written submissions dated June 2021.

22. The Respondent submits that it considered the Appellant’s claim and made its decisions vide a letter addressed to the Appellant stating that the claim could not stand for the main reason that the Appellant had not attached a verification form.

23. The Respondent further submits that it is not in dispute that wild animals invaded the Appellant’s farm and devoured mature crops grown on the farm. It further submits that there is no doubt that as a result of the invasion and destruction of the crops the Appellant suffered loss and that the only two broad questions that fall for determination is whether the Plaintiff has proved the nature and extent of that loss.

24. It is Respondent’s submission that the verification form attached by the Appellant is not the actual verification and the attached form is not even signed. The Respondent submits that the form used for following up claims are standard forms that require the attention of the Appellant while following up on their claim.

25. The Respondent further submits that for the avoidance of doubt it attached the form herein. The form was not attached by the Respondent.

26. The Respondent submits that while the Appellant sought general, special and exemplary damages, in the appeal she concentrated her evidence only on special damages while the written submissions similarly deal with the question of special damages.

27. The Respondent further submits that in her initial claim, the Appellant pleaded the loss of Kshs.64,800 but there is no evidence of further valuation that was done and neither did the Appellant raise any concern about the initial estimated value.

28. On the issue of special damages, the Respondent cites the case of Coast Bus Service Limited v Sisco E. Murunga Ndayi & 2 Others and submits that it is settled law that special damages must first be pleaded and then strictly proved and that the Appellant is attempting to introduce new evidence and attempts to amend the claim without leave. It further submits that the Tribunal is bound by the evidence on record.

29. It is the Respondent’s submissions that the Appellant is required to present her case which she did before the Respondent and got an unfavorable decision for the reason that she did not attach the verification form which was her duty to ensure that all the documentations for her claim are in order.

30. In light of this, the Respondent submits that in the interest of justice, the Honourable Tribunal finds it fit and dismisses the Appeal as this will give the Appellant another day to make right her claim against the Respondent.

Issues for Determination 31. Having considered the Appellant’s appeal instituted vide a Notice of Appeal dated December 8, 2020, both the Appellant’s and the Respondent’s written submissions, the Tribunal will address the following issues:a.Whether the Appellant is entitled to compensation from the Respondent; andb.What is the quantum of compensation due to the Appellant?

i. Whether the Appellant is entitled to compensation 32. The Appellant contends that on July 17, 2014 zebras invaded her farm and completely destroyed about 6 acres of fully grown maize. It is on this basis that she submitted a claim for compensation which was rejected by the Respondent due to lack of a verification form vide the letter dated February 19, 2020.

33. Section 25 (4) of the Wildlife Conservation and Management Act No.47 of 2013 provides that: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.

34. As submitted by the Respondent, it is not in dispute that wild animals invaded the Appellant’s farm and devoured mature crops grown on the farm. Likewise, as a result of the invasion and destruction of the crops the Appellant suffered loss.

35. After the invasion and destruction of her crops the Appellant reported the incident to the police and the incident was recorded under OB 54/30/9/2014 at Narok Police Station on September 30, 2014.

36. She then reported the matter to the Agricultural Officer who visited her farm once and made his calculation based on the visit after which she reported the matter to the Kenya Wildlife Service officers from Ewaso Nyiro who witnessed the destruction and confirmed it in O.B No. 06/22/09/14 and recommended for compensation.

37. This evidence was not denied by the Respondent in its defence. The Respondent’s only contention is that the Appellant did not attach the actual verification form as the attached verification form by the Appellant dated July 22, 2021 is not the actual verification form and it was not even signed.

38. Article 159 (2) of the Constitution of Kenya 2010 provides that in exercising judicial authority, the courts and tribunals shall be guided by the following principles—a.justice shall be done to all, irrespective of status;b.justice shall not be delayed;c.alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);d.justice shall be administered without undue regard to procedural technicalities; ande.the purpose and principles of this Constitution shall be protected and promoted.

39. In Kenya Ports Authority vs. Kenya Power & Lighting Co. Limited (2012) eKLR Justice Mwongo defined a technicality thus:Combining the meanings of these words, “procedural technicalities” may be described as those that more concern the modes of proceedings and the rules involved that regulate formality and processes rather than substantive rights under law. This may not be an all encompassing definition, but I think people generally associate procedural technicalities with annoying strictures and rules which hinder the achievement of substantial justice. An example would be citing a provision from a non-existent or wrong statute when the context is clear as to the statute intended.

40. The Respondent does not cite any statutory basis for rejecting the Appellant’s claim for compensation because of the lack of a verification form. The Appellant in her written submissions submitted that she was given forms at the Kenya Wildlife Service offices in Ewaso Nyiro and she was told that everything was ok and she should wait to be contacted. The Appellant received a response from the Respondent after a period of six (6) years. The Appellant waited for a period of six (6) years to be informed that she did not attach a verification form in support of her claim.

41. The Respondent owed a duty to the Appellant to inform her at the earliest that a verification form was necessary to support her claim for compensation. The verification form is a document for use by the Respondent. It was supposed to be furnished to the Appellant by the Respondent. It is implausible for the Respondent to reject the Appellant’s claim simply because she did not provide a document which was supposed to be given to her at the time of filing the Claim by the Respondent. The Tribunal finds that the Appellant is entitled to compensation for destruction of her crops.

ii. What is the quantum of compensation due to the Appellant? 42. The Appellant submits the amount proposed as compensation in the sum of Kshs. 64,800/= is not fair. She claims in her submissions that she spent more than Kshs. 20,000 per acre and she was expecting to receive compensation in the sum of Kshs. 70,000 to Kshs.75,000/= per acre. She proposes that a sum of Kshs.450,000 for the six acres owing to the loss suffered due to the invasion and destruction of her crops would be fair compensation

43. This Honourable Tribunal has considered the circumstances of this case and the period of time that has elapsed since the date when the Appellant filed her claim before the Respondent. The Tribunal notes that the Appellant had put in place measures to protect her crops against destruction by wildlife by fencing her farm with thorns, poles and barbed wire as indicated on page 1 of the Claim form. We are of the view that a sum of Kenya Shillings One Hundred and Eighty Thousand (Kshs. 180,000/=) is reasonable compensation for the Appellant.

Orders 44. For the above reasons, the Tribunal makes the following orders:a.The Appeal is hereby allowed;b.The decision of the Ministerial Wildlife Conservation and Compensation Committee dismissing the Appellant’s claim is hereby set aside.c.The Respondent shall pay to the Appellant the sum of Kenya Shillings One Hundred and Eighty Thousand (Kshs.180,000) as compensation for destruction of her crops; andd.The Respondent shall bear the costs of the Appeal.Parties Attention is drawn to provisions of Section 130 of the Environment Management and Co-ordination Act.

DATED AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2022. MOHAMMED S. BALALA…………………...………………………CHAIRPERSONCHRISTINE MWIKALI KIPSANG………………………….……… MEMBERBAHATI MWAMUYE……………………………..………………… MEMBERWAITHAKA NGARUIYA…………………….……………………. MEMBERKARIUKI MUIGUA…………………………..……………………… MEMBER