[2022] KENET 702 (KLR)

Mutua v Kenya Wildlife Service & another (Tribunal Appeal 11 of 2022) [2022] KENET 702 (KLR) (Civ) (6 September 2022) (Judgment)

Neutral citation: [2022] KENET 702 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 11 of 2022

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

September 6, 2022

Between

Lawrence Kithome Mutua

Appellant

and

Kenya Wildlife Service

1st Respondent

Ministerial Wildlife Conservation And Compensation Committee

2nd Respondent

Judgment

1. The appellant instituted this appeal vide a notice of appeal dated March 15, 2022 and filed on even date under rule 4 (1) of the National Environment Tribunal Procedure Rules. The appeal is against the decision of the respondents to reject the appellant’s claim for compensation.

2. The appeal emanates from the alleged predation of the appellant’s Nile Tilapia fish by a Nile Crocodile and alleged destruction of his fish pond by the officers of the 1st respondent when they shot and killed the Nile crocodile.

3. The appellant contends that the reason given by the respondents as a basis for rejection of his claim for compensation is invalid and insincere. The appellant thus seeks full compensation from the respondents according to the rates stipulated in the relevant policy and law.

RESPONDENT’S REPLY 4. On April 6, 2022 Oscar Eredi the Deputy Chief State Counsel for the Attorney General entered appearance for the 1st and 2nd respondents while on April 4, 2022, Esther Andisi Advocate entered appearance for the 1st respondent.

5. On April 7, 2022 Esther Andisi for the 1st respondent, filed reply to grounds of appeal dated April 4, 2022 while Faith Njeri Njuguna State Counsel for the Attorney General filed reply to grounds of appeal dated April 6, 2022.

6. It is unclear and confusing why there are two different advocates who are acting for the same party, the 1st respondent, as they not only entered appearance but also filed different replies to the same notice of appeal instituted by the appellant. Nonetheless, we shall highlight the contents of the two replies.

7. The 1st respondent vide the reply to grounds of appeal dated April 4, 2022 states that the 2nd respondent’s rejection of the claimant’s claim for compensation is sound and in accordance with the law.

8. The 1st respondent agrees with the 2nd respondent that the claimant ought to have substantiated his claim and duly filled out and executed forms related to the claim.

9. In further response to the appeal, the 1st respondent denies all allegations and puts the claimant to strict proof and avers that the predation was occasioned solely by the negligence on the appellant’s part.

10. Without prejudice to the paragraphs in its reply to grounds of appeal, the 1st respondent states that compensation is a preserve of the Cabinet Secretary by dint of section 25 (3) of the Wildlife Conservation and Management Act 2013 and has been wrongly sued. It further states that no order of compensation can be enforced against the 1st respondent.

11. Vide the reply to grounds of appeal dated April 6, 2022 the respondents at paragraph 3, raised a preliminary objection to the appeal filed on March 15, 2022 on the ground that the appeal is statute barred as it contravenes the provisions of section 25 (6) of the Wildlife Conservation and Management Act which provides that 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.

12. In response to the grounds of appeal summarized in paragraph 3 of the notice of appeal, the 1st and 2nd respondents aver that the Ministerial Wildlife Conservation and Compensation Committee considered the claim before it together with the documents provided by the appellant and rejected the claim for failure by the appellant to duly fill the claim form, failing to provide clarity regarding the circumstances surrounding the claim and failure to sign the verification form.

13. The 1st and 2nd respondent admits the jurisdiction of this honourable tribunal.

14. On this basis, the 1st and 2nd respondent prays that the appellant’s appeal be dismissed with costs to the respondents.

SUBMISSIONS 15. The appellant filed undated written submissions. He submits that on February 22, 2014 Mutomo KWS team came to his home and found the crocodile and carried it with motor vehicle registration number KAY 216V.

16. The appellant further submits that on February 25, 2022 he received MWCCC letter expressing three reasons for his compensation claim rejection. It is his submission that he personally presented the said compensation claim form on October 28, 2014 at Mutomo KWS office.

17. It is the appellant’s prayer that the honourable tribunal allows his appeal.

18. The 1st respondent filed its written submissions dated May 17, 2022 through its legal officer, Owendi Nicole Tracy pursuant to the tribunal’s directions of April 6, 2022 that the 1st respondent files and serves its written submissions canvassing the appeal.

19. The 1st respondent raised the following issues for determination:i.Whether the reasons for rejection of the appellant’s claim was valid;ii.Whether the appellant has proven his case to the required standard; andiii.Whether the appellant is entitled to the compensation sought.

20. On the first issue for determination, the 1st respondent submits that the Wildlife Conservation and Management Act No 47 of 2013 has in place an elaborate dispute settlement procedure and that the Act at section 25 provides that 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.

21. The 1st respondent further submits that at the elementary stages of the processes at the CWCCC and later MWCC is reporting of incidents of human-wildlife conflict to the 1st respondent’s stations once they have occurred and that these incidents are recorded and registered in the daily occurrence books and assigned OB numbers after which the complaints are issued with verification forms whose purpose is to capture alleged damage, loss and/or injury in relation to the complaints and for the purpose of assessing and ascertaining the claims.

22. The 1st respondent submits that the above-stated forms ought to be duly filled by the complainant and other persons provided for in the form and that the substance filled in the forms and documents that accompany them are tendered as evidence before the CWCC and it is such evidence that informs the decision arrived at by both the CWCC and MWCC.

23. It is the 1st respondent’s submission that the appellant presented forms to the CWCC that were not duly filled by an officer attached to the 1st respondent and neither do the forms contain details as to particulars of the alleged incident.

24. The 1st respondent submits that forms that are not filled to completion pose a challenge to the CWCC and MWCC in arriving at a decision and that the challenge in this specific instance, in relation to the appellant’s forms, would be deliberating a claim for compensation in the absence of a specific place where the incident occurred.

25. The 1st respondent further submits that it is mandatory that an officer attached to the 1st respondent is present when assessing the alleged damage and notes their comments on these forms and that the absence of the above-referenced comments are an indication that there is a high likelihood that the forms did not emanate from the 1st respondent’s offices and neither were they present to assess the alleged damage.

26. It is the 1st respondent’s submission that, by dint of the foregoing, the 1st respondent did not err in declining the appellant’s claim on grounds that the claim form was not duly filled and neither was it signed by the appellant.

27. On the second issue for determination, the respondent submits that save for unfilled forms, the MWCC also rejected the appellant’s claim for reasons that he did not sign the verification forms and that the circumstances surrounding the incident are unclear.

28. The 1st respondent further submits that on perusing the documents tendered in support of the Appeal, it notes that:i.According to the receipt of Makueni Fishpond liners, the 0. 5 mm liner was meant for a fishpond of 285m2 yet in the compensation claim form submitted by the appellant, the 0. 5mm liner was fit for a 300 m2 fishpond.a.It is the 1st respondent’s submission that this is a relatively huge discrepancy and one that would materially affect the yield in terms of the capacity of fish held by the pond.ii.The appellant claims to have taken a number of precautionary measures, from constructing the fish pond 100 to 150 m away, to having an indigenous fence, to constructing a relatively high pond dyke to clearing the surrounding vegetation yet he did not tender evidence to this effect.iii.The appellant claims the crocodile had ‘walked over and got into the pond’ and that the destruction was due to its sharp claws. The appellant is not forthright as to whether the destruction of the liner was by the crocodile or by the bullets alleged to belong to the 1st respondent’s officers attached at the Mutomo station.iv.The contents of the report to claim for compensation differ from the compensation form – the report states that the plaintiff stocked 3,000 Nile Tilapia, 200 Mono-sex and 240 catfish. He had a total of 3,440 fish, of which the crocodile predated on 3,394 fish and only 46 fish remained.v.In the compensation form, the appellant claims that he had 2,880 Tilapia and the crocodile predated on 2,834 of them.

29. The 1st respondent, taking the above into consideration, cites and relies on the authority of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & Another (2016) eKLR and states that:‘….. uncontroverted evidence must bring out the fault and negligence of a defendant and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not…”

30. The 1st respondent submits that at no point in the deliberations of the CWCC and MWCC matters is the 1st respondent’s required to tender evidence as the committees wholly rely on the complainants’ verification forms and that the above reason does not render their evidence undisputable but rather leaves it to the discretion of the committees to determine whether the evidence tendered supports a claim that has been proven upon a balance of probabilities.

31. The 1st respondent further submits that considering the circumstances outlined in its submissions and the fact that the verification form was not signed by the appellant, there is a high likelihood that this was a falsified claim and the alleged incident did not occur at all.

32. It is the 1st respondent’s submission that the MWCC’s reasons to decline the appellant’s compensation claim was valid and prays that this tribunal upholds the same determination.

33. The 1st respondent prays that the honorable tribunal dismisses the appeal.

Issues for Determination 34. Having considered the appellant’s appeal instituted vide a notice of appeal dated March 15, 2022, the appellant’s and the 1st respondent’s written submissions, the tribunal will address the following issues:a.Whether the appellant is entitled to compensation from the respondents; andb.What is the quantum of compensation due to the appellant?

Whether the Appellant is entitled to compensation 35. The appellant contends that on February 20, 2014 a Nile Crocodile invaded his fishpond resulting in the loss of his Nile Tilapia fish. Additionally, it is the appellant’s contention that after the invasion he reported the matter to the 1st respondent’s offices in Mutomo who sent officers and one of the said officers shot and killed the crocodile. The appellant further contends that his 0. 5 mm pond liner was damaged by the bullet that killed the crocodile. It is on this basis that he submitted a claim for compensation which was rejected by the respondents because:i.The claim form was not duly filled;ii.The circumstances of the incident were not clear; andiii.The verification form was not signed by the claimant.

36. 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.

37. The 1st respondent contends that the the appellant presented forms to the CWCC that were not duly filled by an officer attached to the 1st respondent and neither do the forms contain details as to particulars of the alleged incident.

38. The 1st respondent further contends that the appellant is not forthright as to whether the destruction of the liner was by the crocodile or by the bullets alleged to belong to the 1st respondents officers attached at the Mutomo station.

39. It is the 1st respondent’s contention that the fact that the verification form was not signed by the appellant, there is a high likelihood that this was a falsified claim and the alleged incident did not occur at all.

40. 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.

41. 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.

42. The Assistant Chief of Muambani sublocationvide the letter dated June 23, 2014 wrote to the Game Warden of the 1st respondent at Mutomo confirming that the appellant reported to him invasion of his fish pond farm by crocodile and he referred him to the 1st respondent seeking for compensation for the loss he incurred.

43. The Director Wildlife Conservation wrote to the 1st respondent’s warden at Mutomo informing him that the appellant’s fish and fish pond were invaded by a crocodile with resultant loss and damage in February 2014. The Director instructed the warden to facilitate the appellant to apply for compensation as appropriate and confirm the action taken to the order.

44. The Assistant Director of Fisheries wrote to The Game Warden of the 1st respondent at Mutomo Station vide the letter dated October 22, 2014 informing him that the appellant suffered economic and social set back when a crocodile strayed from the River Athi to his established fish ponds. Vide this letter the Assistant Director further informed the Game Warden that they had filled the relevant parts in the claim forms to enable the appellant pursue the matter further. Additionally, it was indicated in the letter that the losses in terms of live mature marketable fish and damage of pond materials was approximately Kshs 510,120. 00 and Kshs 105,000. 00 respectively. This accounted for the total loss incurred to be Kshs 615,120. 00.

45. The appellant furnished these letters as evidence before the tribunal.

46. The 1st respondent does not cite any statutory basis for rejecting the appellant’s claim for compensation because:i.The claim form is not duly filled.ii.The circumstances of the incident in not clear.iii.The verification form was not signed by the claimant.

47. Despite all the letters that were written to the 1st respondent’s Game Warden at Mutomo, the 1st respondent still rejected the appellant’s claim form because, inter alia, the circumstances of the incident were not clear. Additionally, the appellant waited for a period of seven (7) years to be informed about the reasons why his claim was rejected.

48. The respondents owed a duty to the appellant to inform him at the earliest that his claim form was not dully filled and that he did not sign the verification form.

49. The tribunal finds that the appellant is entitled to compensation for his Nile Tilapia fish and the pond liner that was damaged by the officers of the 1st respondent when they shot and killed the crocodile that had invaded the appellant’s fish pond.

What is the quantum of compensation due to the Appellant? 50. As mentioned above, vide the letter dated October 22, 2014 the Assistant Director of Fisheries wrote to the Game Warden of the 1st respondent at Mutomo Station informing him,inter alia, that the losses in terms of live mature marketable fish and damage of pond materials was approximately Kshs 510,120. 00 and Kshs 105,000. 00. This accounted for the total loss incurred to be Kshs 615,120.

51. In the compensation claim form it was indicated that the estimated value for the Tilapia fish that were eaten was Kshs 510,120. 00 and the estimated value of the 0. 5 mm U.V treated pond liber was Kshs 105,000. 00.

52. 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 his claim before the 1st respondent.

53. The tribunal notes that the appellant had put in place measures to protect his fish pond as indicated on the claim form.

54. The tribunal is of the view that Kshs 615,120/- is reasonable compensation for the appellant.

Orders 55. For the above reasons, the tribunal makes the following orders:i.The appeal is hereby allowed;ii.The decision of the 2nd respondent dismissing the appellant’s claim is hereby set aside.iii.The 1st respondent shall pay to the appellant:a.Kshs 510,120/= as compensation for the Tilapia fish that were eaten by the Nile crocodile; andb.Kshs 105,000 as compensation for the 0. 5 mm U.V treated pond liner.iv.The respondents shall bear the costs of the appeal.

56. Parties attention is drawn to provisions of section 130 of the Environment Management and Co-ordination Act.

DATED AT NAIROBI THIS 6TH DAY OF SEPTEMBER 2022MOHAMMED S BALALA…………………………CHAIRPERSONCHRISTINE KIPSANG………………………………………MEMBERBAHATI MWAMUYE………………………………………………MEMBERWAITHAKA NGARUIYA………………………………………MEMBERKARIUKI MUIGUA………………………………………………MEMBER