[2024] KENET 502 (KLR)

Osman v Kenya Wildlife Service (Tribunal Appeal 44 of 2022) [2024] KENET 502 (KLR) (26 February 2024) (Judgment)

Neutral citation: [2024] KENET 502 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 44 of 2022

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

February 26, 2024

Between

Adan Issack Osman

Appellant

and

Kenya Wildlife Service

Respondent

Judgment

1. Before us for determination is a Notice of Appeal dated 30th November 2022 and filed on even date seeking to challenge the Ministerial Wildlife Conservation and Compensation Committee’s decision rejecting the Appellant’s compensation claim.

2. The Claim for compensation was filed before the MWCCC sitting in Mandera County in respect of the injuries sustained by Zakaria Adan caused by a snake bite. Vide a letter dated 16th August, 2021, the Committee rejected the claim citing lack of information provided regarding the relationship of the victim with the next of kin.

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

4. The Respondent, the Kenya Wildlife Service, entered appearance in the matter and filed a Reply to the Grounds of Appeal dated 27th April, 2023. At paragraph 6 of that Reply, the Respondent raised a Preliminary Objection to the jurisdiction of this Tribunal to hear and determine the Appeal based on the limitation of time set out under Section 25(6) of the Wildlife Conservation and Management Act.

5. The appeal was canvased by way of written submissions. We have perused the record and sighted the Respondent’s submissions dated 13th December 2023. The Appellant did not file any written submissions.

ANALYSIS AND DETERMINATION 6. Having considered the Appellant’s appeal, the Respondent’s written submissions and all other documents filed by the parties, and since the jurisdiction of the Tribunal to hear and determine the Appeal has been challenged by the Respondent; we shall consider this issue first.

7. It is the Respondent’s submission that the Appeal before us is time-barred by dint of Section 25(6) of the Wildlife Conservation and Management Act, which provides as follows:(6)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.

8. The Respondent further submitted that the letter from MWCCC dated 16th August 2021 communicating its decision was collected on 26th October 2022. This submission was supported by an excerpt of a collection register contained in their bundle of documents indicating that collection was done by one Suleiman Mohamed, who was the claimant then and is clearly not the Appellant herein. We shall not agonise ourselves on this issue as it has been proved that, indeed, the decision was collected.

9. This brings us to the question of when time starts to run. Pursuant to section 25(6), time starts to run as from 26th October, 2022 being the date of notification of the decision. The current appeal was filed on 30th November 2022. The period between 26th October 2022 and 30th October 2022 is 35 days. In that regard, the Appeal herein was filed beyond the time stipulated in Section 25(6) of the Wildlife Conservation and Management Act within five (5) days.

10. It is trite that the jurisdiction of a Court can neither be implied nor conferred by agreement of parties, by judicial craft or legal sophistry, it must be expressly provided for in the Constitution or in statute. This was the holding of the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where it held 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.”

11. Given the foregoing position, it is our finding that the Tribunal has no jurisdiction. Further, it is to be noted that the Tribunal is not empowered to extend the time within which an appeal under section 25 of the Wildlife Conservation and Management Act of 2013 is filed under. As such, we down our tools at this juncture.

ORDERS 12. The Tribunal proceeds to make the following orders: -a.The Appellant’s Notice of Appeal dated 30th November 2022 is struck out for having been filed after the lapse of the thirty-day period set out under Section 25(6) of the Wildlife Conservation and Management Act andb.Each party shall bear its own costs.

DATED AND DELIVERED AT NAIROBI, THIS 26TH DAY OF FEBRUARY 2024EMMANUEL MUMIA…………………………………………………………...CHAIRMANWINNIE TSUMA…….…………………………………………..........................VICE-CHAIRDUNCAN KURIA…….....…………………….……… ………….........................MEMBERRONALD ALLAMANO…………………………..…………………..…...............MEMBER