[2024] KENET 511 (KLR)

Ndambuki v Kitui County Wildlife Conservation and Compensation Committee & another (Tribunal Appeal 32 of 2020) [2024] KENET 511 (KLR) (4 March 2024) (Judgment)

Neutral citation: [2024] KENET 511 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 32 of 2020

Emmanuel Mumia, Chair, Winnie Tsuma, Vice Chair, Duncan Kuria & Ronald Allamano, Members

March 4, 2024

Between

Jacinta Kavisa Ndambuki

Appellant

and

Kitui County Wildlife Conservation and Compensation Committee

1st Respondent

Kenya Wildlife Service

2nd Respondent

Judgment

1. Jacinta Kavisa Ndambuki lodged before the Tribunal the instant appeal; the same is dated the 6th August 2020. The appeal is expressed to be brought under the provisions of Rule 4 of the Tribunal’s rules. The crux of the appeal is that the Kitui County Wildlife Conservation and Compensation Committee (hereinafter referred to as “MWCCC”) rejected the claim for compensation for the death of one Kituku Wambua.

2. The MWCCC's reason for rejecting the claim for compensation was that the cause of death of the deceased could not be ascertained as caused by a snake bite due to the decomposition of the deceased’s body.

3. The grounds of appeal are well laid out in the body of the appeal, particularly under paragraph 4 therein. The appeal then seeks the following prayers-a.An order of certiorari quashing the decision from the Ministerial Wildlife Conservation and Compensation Committee (MWCCC) directed that the claim be denied.b.An order of mandamus directing the Ministerial Wildlife Conservation and Compensation Committee (MWCCC) to execute its duties and duly follow up on the claim;c.That an order of mandamus is issued to the Ministerial Wildlife Conservation and Compensation Committee (MWCCC) directing them to pay compensation to the estate of the deceased as per section 25(3) of the Wildlife Conservation and management act, 2013;d.Costs of these proceedings;e.Any other or further relief that the Honourable Tribunal may deem fit to grant

4. The 1st Respondent did not enter appearance in the matter.

5. The 2nd Respondent, on the other hand, entered appearance through the Firm of Ombonya & Co. Advocates vide the notice of appointment of 18th August 2020. Counsel on record for the 2nd Respondent then filed a comprehensive reply to the appeal dated the 4th November 2020.

6. The reply, in a nutshell, challenges the basis upon which the 2nd Respondent is impleaded, the legal foundation of the prayers sought and the factual basis of the claim. In the end, the 2nd Respondent prays that the appeal be struck out with costs.

7. The matter was set down for hearing on the 27th of February 2024, where a viva voce hearing was conducted with the appellant appearing in person and Mrs Wachira, Learned Counsel, appearing for the 2nd Respondent.

8. The documents relied upon by the Appellant were as follows-a.The letter dated 9th July 2020, authored by KWS;b.The death certificate;c.Postmortem form;d.Demand letter dated the 7th July, 2020; ande.The compensation claim form;In the absence of any objection, the above documents, save for the postmortem form, were admitted and marked as appellant’s exhibit 1, 2, 3 and 5, respectively. The grant ad litem did not form part of the documents filed.

9. At the hearing, the appellant stated that she was the deceased's niece and that she lodged the appeal on behalf of the deceased’s estate. She also noted that the case was initially being handled by her father, Ndambuki Wambua, who has also passed on, and that is how she took over the representation of the deceased’s estate. In cross-examination, the appellant was asked by Mrs Wachira, Learned Counsel for the 2nd Respondent, to confirm whether she had been authorised by the court to represent the deceased, to which the appellant responded in the negative.

10. The appellant also called an expert witness, one Dr. Kitheka, who informed the Tribunal that he practices Medicine at the Kitui County Referral Hospital, having graduated from the University of Nairobi with a bachelor’s degree in medicine and surgery in the year 2018 and that his duty was to produce the postmortem report as the author of the report is equally deceased. In the absence of any objection, the postmortem report was admitted as evidence and marked as the appellant's exhibit 4.

11. The witness was cross-examined by Counsel for the 2nd Respondent and re-examined by the appellant, upon which he informed the Tribunal that at the time the autopsy was conducted, the body of the deceased was decomposed, and on account of the state of the body, physical injuries could not be ascertained. The witness was also asked to confirm whether further tests are required whenever there are allegations of death by envenomation. The Appellant Witness 2 (AW 2) confirmed that histology and toxicology tests are supposed to be conducted to confirm that, indeed, the cause of death is venom poisoning emanating from a snake bite. AW 2 also confirmed that in this case, no further tests were conducted to verify the cause of death, and in conclusion, he stated, “the conclusion made was inconsistent with the findings”.

12. The 2nd Respondent called one witness, Grace Museya Reuben Nzale, who informed the Tribunal that she is a Senior Conservation Officer with the 2nd Respondent. In her testimony, she informed the Tribunal that the appellant’s claim ought to be directed at the 1st Respondent and that the 2nd Respondent doesn’t have the mandate or responsibility of settling claims arising from human-wildlife conflict and that in the meetings for consideration of the claims such as the one under appeal, KWS the 2nd Respondent participates merely as secretary.

13. Upon hearing of all the parties, as enumerated above, the Appellant and 2nd Respondent closed their respective cases.

14. The Tribunal has considered the appeal, the grounds in support thereof and the documents admitted and marked as exhibits, the reply to the appeal, and the witness testimony and distilled the following as the issues for determination-a.Whether the appellant has the locus standi to bring the instant appeal;b.Whether the Tribunal is clothed with the Jurisdiction to grant the writs of Judicial Review as sought in the appeal;c.Whether the appellant is entitled to the prayers sought;d.Who shall bear the costs of the appeal?

Whether the appellant has the locus standi to bring the instant appeal 15. In the 1st paragraph of the appeal, the Appellant describes herself as, “…the guardian ad litem of the estate of the deceased Kituku Wambua”. In the list of documents filed with the Tribunal on the 6th of August 2020, the grant ad litem is listed as the 6th document. However, perusing the filed documents reveals that the grant ad litem is not attached. The concern as to the absence of the grant ad litem was equally raised by the 2nd Respondent vide the letter of its Counsel dated the 2nd October 2023, seeking to be furnished with a copy of the said grant ad litem. This letter was never responded to.

16. During the hearing, Mrs Macharia, while cross-examining the appellant, enquired as to whether the appellant, who referred to herself as legal representative of the deceased, had been permitted by the court to appear for the estate, to which the appellant responded, “I was not”. Asked as to whether her deceased father had obtained the grant ad litem to pursue the compensation on behalf of the estate of the deceased, she responded that, “I believe so, but I can’t explain well”.

17. Over and above the unequivocal admission by the appellant in her testimony under oath that she has not obtained the grant ad litem, this document, although listed in the list of documents, was neither filed nor produced. What the Tribunal has sighted is the chief's letter dated the 11th October, 2023, confirming that the appellant is kin to the deceased and that she be accorded whatever help she may require.

18. It is, therefore, beyond pre-adventure that the appellant did not obtain the grant ad litem prior to filling the instant appeal.

19. In a similar situation, the High Court in Hawo Shanko vs Mohamed Uta Shanko (2018) eKLR rendered thus-“There is no dispute that the plaintiff did not obtain a limited grant allowing her to file suit. Such a grant is the key which allows the plaintiff to access the court, without a limited grant being issued allowing the filling of the suit, the plaintiff would be like someone who has entered a closed room without opening the door. All what the court can tell someone who is before it without having obtained a grant limited to the filling of the suit is that despite the validity of the suit or strength of the case the court cannot hear the suit as the initiator thereof lacks the capacity to file the suit. The correct procedure is not to allow the plaintiff to go back and obtain a limited grant for the purpose and then allow him to continue with the suit. The suit as initiated becomes void ab initio and cannot be resuscitated by the issuance of a subsequent limited grant”.

20. Similarly, in Julian Adoyo Ongunga vs Francis Kiberenge Abano, Migori Civil Appeal No. 119 of 2015, Mrima. J had rendered himself as follows-“Further, the issue of locus standi is so cardinal in a civil matter that it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction. Since it all amounts to null and void proceedings. It is also worth noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties”.

21. The appellant brought this suit without first obtaining the grant ad litem, and in as much as she acted in person during the hearing, the appeal was lodged by a law Firm of Mwenda Mwinzi & Associates, who withdrew from the appeal midway. Therefore, at the time of filing the appeal, the appellant was adequately represented by Counsel and the former counsel was expected to be aware of the law and the pre-requisites of lodging an appeal on behalf of the deceased's estate.

22. Nonetheless, the Tribunal sympathises with the appellant and her family. However, allowing the appellant to sustain a suit without locus standi will be turning the law topsy-turvy, resulting in a chaotic system in the administration of justice.

23. The upshot of the above is that the instant appeal is hereby struck out. The Tribunal’s hands are tied, and can now only watch and weep with the appellant.

24. The Tribunal finds that it will be imprudent to condemn the appellant to costs, although this is one such case where costs would ordinarily be awarded and, therefore, each party to bear their own costs.

25. In view of the above and having dealt with the question of costs, the other two issues for determination have been effectively rendered otiose.

Orders 26. The Tribunal proceeds to make the following orders: -a.The Appellant’s Notice of Appeal dated 6th August 2020 is struck out for want of locus standi on the part of the appellant.b.Each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI, THIS 4TH MARCH, 2024. EMMANUEL MUMIA - CHAIRMANWINNIE TSUMA - VICE-CHAIRDUNCAN KURIA - MEMBERRONALD ALLAMANO - MEMBER