[1998] KECA 5 (KLR)

Ngera & another vKenya Wildlife Service

Court of Appeal, at Nairobi October 2, 1998

Gicheru, Tunoi & Pall JJ A

Civil Appeal No 171 of 1997

(Appeal from the Ruling/ Order of the High Court of Kenya at Nakuru (Hon

Justice D M Rimita) dated 21st February 1995 in HCCC No 268 of 1992)

Wildlife– management and conservation – the obligation and duty of

Kenya Wildlife Services (KWS) – whether the law imposes an obligation

on KWS to render services necessary to protect a limited class of persons

– Wildlife (Conservation and Management) Act (cap 376).

Wildlife– humans and wildlife conflict - destruction of property – remedy

for destruction occasioned by wild animals – the obligation of KWS –

where the law imposes a statutory obligation on KWS to render services

to a certain class of persons – whether the absence of a remedy under the

Act bars a right of action by a claimant – whether a claim can be brought

under the common law

Statutes– interpretation of statutes – where an Act of Parliament creates

a statutory obligation but does not provide for a remedy – whether the

absence of a remedy bars a claimant from raising an action – whether

such a claim can be raised through the common law - Wildlife

(Conservation and Management) Act (cap 376).

By a plaint in the superior court the appellants, averred that they were the

owners and/or beneficial owners, of a portion of land surrounding the

Lake Nakuru National Park on which they jointly planted 480 acres of

wheat in 1991. Between the months of April and October, 1991 when the

appellants’ wheat crop had been planted and had ripened, birds from the

Lake Nakuru National Park descended onto the wheat crop and totally

destroyed it resulting in loss and damage estimated at Ksh 5,520,000. 00.

The appellants attributed this loss and damage to the respondent on account

of its alleged breach of statutory duties under the provisions of section 3A

(c) and (1) of the Wildlife (Conservation and Management Act) Act, cap

376. The appellants apart from claiming general and exemplary damages,

also claimed special damages of Ksh 5,520,000. 00 against the respondent.

In its defence the Kenya Wildlife Service stated that under section 62(1)

of the Act no case could be brought against it in respect of losses resulting

from damage to property occassioned by wild animals or birds, therefore

the suit against them ought to have been struck off the court records.

At the hearing of the suit the High Court upheld and sustained the

preliminary objection and accordingly dismissed the suit with costs to

the defendant hence this appeal.

Held:

1. Giving plain and ordinary meaning to to section 3A (1) of the Wildlife

(Conservation and Management) Act, Parliament intended to impose

and did impose an obligation upon the respondent to render services

necessary to protect a limited class of persons, namely the farming and

ranching communities.

2. It is correct that Act No 16 of 1989 removed compensation for damage

or loss of crop property by any animal in terms of the Wildlife

(Conservation and Management) Act but in place thereof it provided

that one of the functions of the respondent is rendering services to the

farming and ranching communities in Kenya for the protection of

agriculture and animal husbandry against destruction by wildlife.

3. If Kenya Wildlife Services failed to carry out its functions, as above,

then it would be in breach of a statutory duty notwithstanding the nonprovision

of a remedy for such breach.

4. In the absence of any remedy provided by the Wildlife (Conservation

and Management) Act for loss resulting from damage by birds, the

appellant could always pursue his common law remedy.

5. If a statute creates a duty but imposes no remedy, civil or criminal, for

its breach, there is a presumption that a person who is injured thereby

will have a right of action, for otherwise the statute would be but a

pious aspiration.

6. The appellants were persons in the farming communities in Kenya to

whom Kenya Wildlife Services was to render services necessary for

the protection of agriculture against destruction by wildlife. Whether

or not section 3A (1) of the Wildlife (Conservation and Management)

Act No 16 of 1989 imposes a remedy for their breach of the statutory

obligations, such a provision does not bar a right of action against the

respondent.

Appeal allowed.

Cases

Attorney General of Duchy of Lancaster v L & N W Ry Co(1892) 3 Ch

274 CA

Texts

1. Dworkin, E (Ed) (1967) Odgers’ Construction of Deeds and Statutes

London: Sweet & Maxwell 5th Edn p 398

2. Simmonds, V et al(Eds) (1961) Halsbury’s Laws of EnglandLondon:

Butterworths 3rd Edn Vol XXXVI para 684

3. Dugdale, A M (Ed) (1961) Clerk & Lindsell on TortsLondon: Sweet &

Maxwell 12th Edn para 1407

Statutes

1. Wildlife (Conservation and Management) Act (cap 376) sections 2(b);

3A; 3A (c) (i); 62 (1) (2)

2. Agriculture Act (cap 318)

Advocates

Pravin Bowryfor the Appellant

PJ Mwitifor the Respondent

October 2, 1998, the following Judgments were delivered.

Gicheru JA.Under the provisions of section 2 (6) of the Wildlife

Conservation and Management) (Amendment) Act, No 16 of 1989 which

came in to operation on 15th January, 1990, “Service” means the Kenya

Wildlife Service established under section 3 of the said Act the respondent

herein. Section 3A (C) and (1) of that Act is in the following terms:

“3A The function of the service shall be to:-

(c) manage National Parks and National Reserves;

(1) render services to the farming and ranching

communities in Kenya necessary for the protection of

agriculture and animal husbandry against destruction

by wildlife.”

By a plaint in the superior court dated 22nd May, 1992 the appellants herein,

where material for the purpose of this appeal, averred that they were owners

and/or beneficial owners, of land surrounding the Lake Nakuru National

Park being LR No 4790/453 on which during the year 1991, they jointly

planted 480 acres of wheat cultivated and supervised it as by practice and

good husbandry is required under the Agriculture Act, chapter 418 of the

Laws of Kenya. Between the months of April and October, 1991 when

the appellants’ wheat crop had been planted and had ripened and headed

with seed, birds from the Lake Nakuru National Park, in particular Guinea

Fowls, descended onto the appellants wheat crop and totally destroyed it

resulting in loss and damage to the appellants estimated at Ksh

5,520,000. 00 which loss and damage appellants attributed to the

respondent on account of its breach of statutory duties under the provisions

of section 3A (c) and (1) of the Act referred to above and as are set out

thereto. The appellants therefore besides claiming general and exemplary

damages also claimed special damages of Ksh 5,520,000. 00 against the

respondent.

In its statement of defence dated 1st July, 1992 the respondent inter alia

averred that at the hearing of the appellants’ suit in the superior court, it

was to raise a preliminary point of law to the effect that by virtue of

section 62(1) of the Wildlife (Conservation and Management) Act, Chapter

376 of the Laws of Kenya as amended by Act No 16 of 1989 no action

can be sustained in respect of losses resulting from damage to property

occasioned by wild animals or birds and consequently the appellants’ suit

ought to be struck out with costs.

When the appellants’ suit came up for hearing in the superior court on

25th January, 1995, counsel for the respondent, Mr Mwiti raised the

preliminary point of law referred to above and the same was debated in

that Court by the opposing parties thereto and in his ruling dated and

delivered at Nakuru on 21st February, 1995, Rimita J had this to say:

“Act No 16 of 1989 removed compensation for loss of

property. As it is now, the Act provides no compensation

for loss of property. I believe this was deliberate our

legislature. All what I can say is that the Act in question,

that has created the defendant, places no liability on

the defendant for loss of property occasioned by

wildlife. It is unfortunate but that is the law as I

understand it. The upshot is that the defendant’s

preliminary objection is upheld and sustained. The suit

is accordingly dismissed with costs to the defendant.”

It is correct that Act No 16 of 1989 removed compensation for damage or

loss of crop or property by any animal in terms of the Wildlife

(Conservation and Management) Act, Chapter 376 of the the Laws of

Kenya but in place thereof it provided as one of the functions of the

respondent as is relevant this appeal the rendering of services to the farming

and ranching communities in Kenya for the protection of agriculture and

animal husbandry against destruction by wildlife. If the respondent failed

to carry out this function, then it would be a breach of a statutory duty

notwithstanding the non-provision of remedy for such breach: and as is

stated in Clerk and Lindsell on Tort, 12th Edition, paragraph 1407 at page

741.

“If a statute creates a duty but imposes remedy, civil or

criminal, for its breach there is a presumption that a

person who is injured thereby will have a right of action

for otherwise “the statute would be but a pious

aspiration”. This may be subject to qualification,

however, which has often been stated, though also

emphatically denied that there will be no right of action

unless the statute was intended to benefit designated

individuals or particular class of persons rather than

the public at large.

The respondent is a body corporate with power to sue and be sued. In the

instant appeal, the appellants were persons in the farming communities in

Kenya to whom under section 3A(1) of Act No 16 of 1989 the respondent

was to render services necessary for the protection of agriculture against

destruction by wildlife. Whether or not the provisions of this section

imposes no remedy for their breach by the respondent is no bar for a right

of action in the circumstances such as obtains in the present appeal against

the respondent otherwise such provisions should never have found any

space in the statute book. The learned superior court judge may not

therefore have been right in upholding the respondent’s preliminary point

of law that no action can be sustained in respect of losses resulting from

damage to property occasioned by wild animals or birds. In the result, I

would allow this appeal, set a side the order of the superior court dismissing

the appellant’s suit in that Court which costs to the respondent and order

that the appellants’ Civil Suit No 268 of 1992 be reinstated and proceed

to hearing before a judge of the superior court other than Rimita J. the

appellants shall have the costs of this appeal. As Tunoi and Pall JJ A

agree, it is so ordered.

Pall JA.This is an appeal from the judgment and decree of the High

Court of Kenya at Nakuru (Rimita J) dated 21st February, 1995 in Nakuru

High Court Civil Case No 268 of 1992.

The appellant sued the respondent Kenya Wildlife Service which is a

body corporate established under the Wildlife (Conservation &

Management) Act cap 376 (the Act). The plaintiffs claimed that under ss

3A(c), 3A(i) and 3A(I) of the Act the respondent is responsible inter alia

to:-

(i) manage national parks and national reserves and

render services to the farming and ranching

communities in Kenya necessary for the protection of

agriculture and animal husbandry against destruction

by wildlife and

(iii) provide advice to the government on conservation

and management.

The appellants further claimed that in or around the months of April to

October, 1991 when their wheat crop was planted in 480 acres forming

part of LR No 4790/453 jointly owned by them and later on when the

crop was ripe birds from Lake Nakuru National Park descended on the

said wheat plantation and totally destroyed it resulting in loss and damage

to them.

In the particulars of loss and damage, the appellant alleged that 9600

bags of wheat of the total value of Kshs 5, 520,000 had been lost.

It is further alleged in the plaint that the said loss and damage was

occasioned because of breach or breaches of the respondent’s statutory

duties under the said section 3A of the Act. The particulars of several

alleged breaches of statutory duties on the part of the respondent as also

particulars or alleged negligence are given in the plaint. In the alternative

it is alleged that during the aforementioned period the respondent although

duty bound failed to abate public nuisance caused by the birds from the

Lake Nakuru National Park in the outside vicinity of the park. The

appellant claimed special damages in the said sum of Kshs 5,520,000/=

and general and exemplary damages against the respondent.

By its defence the respondent inter alia denied liability; in particular raising

a preliminary point that by virtue of s 62(1) of the Act no action could be

sustained in respect of loss to property occasioned by wild animals and

birds. The defence also raised a further preliminary point that even if the

appellant had a cause of action, the same was not against the respondent

as under s 62(2) of the Act there was a specific machinery and procedure

for compensation through the District Committee which compensation

was in any event to come out of the consolidated fund of the government.

The defence also pleaded that sub-sections 3A(c) (i) and (l) of the Act did

not place any liability on the respondent for losses occasioned by wild

animals or birds.

The issues were framed by the parties and one of the agreed issues was:

“Is the defendant obligated to compensate the plaintiff

for losses as alleged and does the defendant owe a duty

of care under s 3A(a) to (l) of the Act?

At the hearing the respondent argued a point of law that the whole suit

was bad in law. By his ruling which in fact is his judgment, the learned

judge dismissed the appellant’s suit upholding the respondent’s preliminary

objection and said:-

“Act No 16 of 1989 removed compensation for loss of

property. As it is now the Act provides no compensation

for loss of property I believe this was deliberate by our

legislature.”

By Act No 16 of 1989, s 62 was amended and reference therein to “damage

to or loss of crops or property” was deleted therefrom.

The appellants now appeal. There are several grounds of appeal but

gravamen of the appellants appeal is that the learned Judge misconstrued

the provisions of the Act and wrongly held that the appellants had no

recourse under the Act for breach of a statutory duty on the part of the

respondent.

Counsel for the appellants pointed out that although the appellants had

specifically pleaded that under the aforesaid provisions of s 3A, particularly

s 3A(l) of the Act there was a statutory duty imposed upon the respondent

“to render services to the farming and ranching communities in Kenya

necessary for the protection of agriculture and animal husbandry against

destruction by wildlife.” The learned judge completely ignored to consider

the appellants claim in the light of section 3A of the Act and summarily

dismissed the appellants’ claim. He further argued that although under

the amended s 62(1) of the Act a statutory claim for loss or damage to

property through destruction by wildlife has been excluded if there is a

breach of duty by a statutory body, the aggrieved party can make his

claim for damages under the common law. It cannot be said that a duty is

cast upon the respondent and for breach thereof there is no remedy

available to the appellants, he said. He further argued that the superior

court should have allowed the suit to proceed in the normal manner instead

of summarily dismissing it and in the course of the proceedings his clients

would have shown that there was a statutory duty under s 3A that the

respondent had been guilty of breach of it. Odgers on Construction of

Deeds and Statutes5th Edition at p 398 says:

“The first question is whether a remedy given by statute

ousts the remedy at common law. The matter was

summarised in the following way by Willi J in

Wolverhampton New Waterworks Co vs Howkesford:

There are three classes of case in which liability may

be established founded upon a statute. One is, where

there is a liability existing at common law and that

liability is affirmed by statute which gives a special and

peculiar form of remedy different from the remedy

which existed at common law; there, unless the statute

contains words which expressly or by necessary

implication exclude the common law remedy, the party

suing has his election to pursue either that or the

statutory remedy. The second class is where the statute

gives the right to sue merely, but provides no form of

remedy, there the party can only proceed by action at

common law. But there is a third class vizwhere a

liability not existing at common law is created by a

statute....... The remedy provided by the statute must

be followed.......”

Halsbury Laws of England3rd Edition Vol 36 at paragraph 684 says:

Essentials of a Cause of Action. In order to succeed in

an action for damages for breach of a statutory

obligation which on the proper construction of the

statute was intended to be a ground of civil liability to

a class of persons of whom he is one he must establish

an injury or damage of a kind against which the statute

was designed to give protection and he must establish

the breach of statutory obligation caused or materially

contributed to his injury or damage.

Clarke & Lindsell on Tort12th Edition at paragraph 1407 reads:

“If the statute creates a duty but imposes no remedy,

civil or criminal for its breach, there is a presumption

that the person who is injured thereby will have a right

of action, for otherwise the statute would be but a pious

aspiration.”

Counsel for the respondent said that the Court should look at the Act in its

entirity and hold that the superior court was right in dismissing the suit in

limini.I have carefully gone through the judgment of the superior court.

Whereas it talks about the powers given to the respondent under the Act,

it is completely silent about its obligations under the Act. It says:

“It (the respondent) has been given certain powers under

cap 376 to manage the wildlife. The ownership or

possession of the wildlife is not passed by the Act to

the defendant. The animals in my opinion remain wild

despite the Act.”

It is true that wild animals or birds remain wild. But section 3A(l) does

say inter aliathat the respondent is to render services to the farming

communities for protection of agriculture against destruction by wildlife.

The learned judge was specifically invited to interpret and to give effect

to this provision of the Act. His judgment is completely silent about it.

Giving plain and ordinary meaning to section 3A(l) of the Act, my view

is that Parliament intended to impose and did impose an obligation or

duty upon the respondent to render services necessary to protect a limited

class of persons namely the farming and ranching communities. In the

absence of any remedy provided by the Act, the appellant can always

pursue his common law remedy.

Summary process ie without a trial in the normal way to stay or dismiss

an action should only be adopted when it is clearly seen that the claim on

the face of it is unsustainable (Attorney General of Duchy of Lancaster

vs L & N W Ry Co(1892) 3 Ch 274 CA).

In the final result I would allow the appeal, and set aside the said judgment

or ruling of the superior court and order that trial of the suit should proceed

in the normal manner before a judge of the superior court other than Rimita

J. I would award costs of the appeal to the appellant.

Tunoi JA.I agree with the judgment of Pall JA. I would allow appeal in

the terms proposed by him.