[2022] KENET 706 (KLR)

Mwambamba v Kenya Wildlife Service (Tribunal Appeal 22 of 2021) [2022] KENET 706 (KLR) (Civ) (6 September 2022) (Ruling)

Neutral citation: [2022] KENET 706 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 22 of 2021

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

September 6, 2022

Between

Gilbert Ngeti Mwambamba

Appellant

and

Kenya Wildlife Service

Respondent

Ruling

1. The appellant instituted this appeal vide a notice of appeal filed on September 24, 2021 under rule 4 (1) of the National Environment Tribunal Procedure Rules. The appeal is against the decision of the respondent, Kenya Wildlife Service, to reject the appellant’s claim for compensation.

2. The appeal emanates from the alleged attack of the appellant by a lion while grazing in his farm at Mwakiki village on September 16, 2015. The appellant contends that the reason given by the respondent as a basis for rejection of his claim for compensation is invalid and insincere. The appellant thus seeks full compensation from the respondent according to the rates stipulated in the relevant policy and law.

Respondent’s Reply 3. The respondent responded to the appeal vide a reply to grounds of appeal dated January 11, 2022 where at paragraph 3, it raised a preliminary objection to the appeal filed on September 24, 2021 on the grounds that: -a.The respondent pleads the doctrine of res judicata as the material facts of the appeal were adjudicated upon and dispensed with in the matter registered as Voi Spmcc No 80 of 2018. b.The appeal is time barred by dint of section 25 (6) of the Wildlife Conservation and Management Act that requires it to be filed within thirty (30) days of notification of the decision.c.The honourable tribunal lacks jurisdiction to entertain an appeal that is time barred and should therefore be struck out as it is a nullity ab initio.

4. On this basis, the respondent prays that the appellant’s appeal be dismissed with costs to the respondent.

Submissions 5. The appellant filed written submissions dated February 1, 2022. He submits that the date he sustained injuries caused by a lion attack, that is, on September 16, 2015 at Mwakiki area in Mbololo location was the same date he reported the matter to Voi Police Station. with the incident was recorded as OB No 42/16/Sept/2015. He was issued with the medical P3 form.

6. It is the appellant’s submission that the results on the medical P3 form showed that he was attacked by a lion on the same date as it reads on the OB.

7. The appellant further submits that the staff of KWS were at the Police Station when he came to report the incidence and they also joined him at the hospital. It is his submission that K24 aired the matter on their TV station.

8. The appellant further submits that he sees no sufficient reasons to be denied his compensation by a few individuals within KWS and that he is ready to sacrifice all his efforts for the sake of his community as there will be no loss on him.

9. The tribunal notes that the respondent filed two written submissions on the reply to grounds of appeal dated January 11, 2022. The first one is dated February 7, 2022 and filed on February 9, 2022. The second one is undated, but was filed on February 24, 2022 and it has the appellant’s signature dated February 5, 2022. The former has 23 paragraphs while the latter has 17 paragraphs and appears to be incomplete.

10. It is unclear why the respondent filed two sets of written submissions on the reply to grounds of appeal dated January 11, 2022.

11. The respondent raised the following issues for determination:a.Whether the appeal is res judicata as its material facts were adjudicated upon and dispensed with in the matter registered as VOI SPMCC NO 80 OF 2018;b.Whether the appeal is time barred by dint of section 25(6) of the Wildlife Conservation and Management Act; andc.Whether the honorable tribunal has jurisdiction to entertain an appeal that is time barred.

12. On the first issue for determination, the respondent submits that the appellant has brought this appeal as an afterthought, whose only intention is to waste the honourable tribunal’s time.

13. The respondent further submits that the history of this matter is that the appellant first filed against the respondent, the suit registered as VOI SPMCC NO 80 OF 2018 and the matter was on going from 2017 during which the appellant was also pursuing compensation for the same through the County Wildlife Compensation Committee (CWCC).

14. It is the respondent’s submission that the appellant deliberately chose not to pursue this claim alongside the matter he had earlier instituted in court as there was no likelihood of success due to inconsistencies in the records he had tendered as evidence and as a consequence of the above, he deserted the proceedings, leading to undue delay and eventually dismissal of the matter for want of prosecution.

15. The respondent submits that in as far as the provisions of section 25 of the Wildlife Conservation and Management Act, 2013 apply, they do not oust courts’ jurisdiction to adjudicate claims arising from human-wildlife conflict. The respondent further submits that these provisions do not give lee way for aggrieved parties to forum shop.

16. It is the respondent’s submission that this Honourable Tribunal disallows this appeal as it is an exercise of forum shopping by the appellant who wants to engage the respondent in endless litigation over the same subject matter.

17. On the second issue for determination, the respondent submits that the appellant was notified by the MWCC of its decisions to reject his claim by way of letter dated October 7, 2019 and that the appeal herein was not brought within the time limits prescribed by the Wildlife Conservation and Management Act.

18. The respondent cites section 25 (6) of the Wildlife Conservation and Management Act (No 47 of 2013) which provides: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.

19. The respondent submits that pursuant to the above provision, there is no further provision in the act made to envisage enlargement of time in the event that an appeal is filed out of the request period.

20. The respondent further submits that it is clear from the above section that lodging an appeal to the honourable tribunal outside of the prescribed statutory time would render such appeal null and void.

21. On the third issue for determination, the respondent submits that from the highlighted provisions of the Wildlife Conservation and Management Act, 2013, it is evident that this honorable tribunal’s jurisdiction to determine appeals arises from the act.

22. It cites Black’s Law Dictionary, 9th Edition, which defines jurisdiction as the court’s power to entertain, hear and determine a dispute before it.

23. The respondent further cites the cases of The Owners of Motor Vessel Lilian S v Caltex Oil Kenya Ltd(1989) 1 KLR and Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 Others (2013) eKLR on jurisdiction in support of its case.

24. It is the submission of the respondent that it would be a nullity in law and a practice ultra vires if this honourable tribunal conferred upon itself jurisdiction to determine this appeal.

25. The respondent submits that article 159 (2) (d) of the Constitution of Kenya, 2010 cannot confer upon this honourable tribunal, jurisdiction to determine the appeal and render the mandatory requirements under section 25 (6) of the Wildlife Conservation and Management Act, 2013 a mere technicality.

26. It is the respondent’s submission that the appeal before this tribunal is null ab initio for reasons that its subject matter is res judicata, it was instituted out of time and consequently stripping the honourable tribunal jurisdiction to deliberate on it.

27. The respondent prays that the appeal is disallowed.

Issues for Determination 28. Having considered the respondent’s preliminary objection which was raised at paragraph 3 of its reply to grounds of appeal dated January 11, 2022, the appellant’s written submissions and the respondent’s written submissions in respect of its preliminary objection, the tribunal has identified the following issues as arising from the preliminary objection:a.Whether the appeal is time barred;b.Whether this tribunal has jurisdiction; andc.What orders should the tribunal make.

Whether the appeal is time barred 29. In the celebrated case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Limited, the principles of preliminary objections were set out. The court stated as follows: -''So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”

30. Section 25(6) of the Wildlife Conservation and Management Act (No 47 of 2013) provides: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 (emphasis ours).

31. The appellant lodged his application to the county wildlife compensation committee seeking to be compensated for the alleged injury by a lion. The Ministerial Wildlife Conservation and Compensation Committee (MWCCC) replied by way of a letter dated October 7, 2019 rejecting the claim due to inconsistency of incident date on claim and P3 forms.

32. The appellant, vide his letter dated September 23, 2021 to the tribunal at paragraph 2 line 6 indicated that:‘The letter took one year not given to me until around mid-2020 during Covid-19 pandemic” (emphasis ours).

33. The claimant has clearly admitted that he received the letter informing him his claim was rejected due to inconsistency of incident date on claim and p3 forms around mid 2020 yet he filed the appeal before the tribunal on September 24, 2021, outside the prescribed statutory period. Consequently, the appeal presented by the appellant is time-barred.

Whether this Tribunal has Jurisdiction 34. This tribunal in Tribunal Appeal Net 2 of 2018, Albert Mumma in his Capacity as Chairman Langata District Association v Director General - National Environmental Management Authority [NEMA] & 2 others; Seventh Day Adventist Church (EA) Limited (Interested Party) held that:“It is established practice that where the jurisdiction of the tribunal is called into question then the first order of business is for the tribunal to make a determination on that issue before rendering its decision on the main points of the appeal.”

35. Nyarangi JA while citing Words and Phrases Legally defined in Owners of the Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Limited held that:“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake both of these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

36. Likewise, in Samuel Kamau Macharia vs Kenya Commercial Bank & 2 Others, Civil Appl No 2 of 2011, The Supreme Court of Kenya observed that:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings…where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. it cannot expand its jurisdiction through judicial craft or innovation.”

37. The respondent submits that since the appeal before this tribunal is time barred, this honourable tribunal does not have jurisdiction to hear the appeal since it cannot extend the time within which an appeal can be lodged.

38. Having found that the appellant’s appeal was filed out of time, the tribunal finds no reason to delve into matters raised in the appeal since the appeal was filed out of time and the tribunal lacks the jurisdiction to take any further step.

Orders 39. For the above reasons, the tribunal makes the following orders:a.The respondent’s preliminary objection is hereby allowed;b.The appeal is hereby dismissed; andc.Each party to bear their own costs.

40. The parties’ attention is drawn to the provisions of Section 130 of the EMCA.

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