George v Kenya Wildlife Service (Civil Appeal E072 of 2024) [2026] KEHC 13125 (KLR) (18 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E072 OF 2024** **DK RONO, J** **18 JUNE 2026** **BETWEEN** **PATRICK THURANIRA GEORGE.……………………. APPELLANT** **AND** **KENYA WILDLIFE SERVICE……………….…….……. RESPONDENT** (*Being an appeal against the judgement of the Hon. L.W Maina (RM/Adjudicator) in Meru Sccc E037 of 2024 delivered on 30/04/2024)* **JUDGMENT** **Background** 1. Patrick Thuranira George (‘the Appellant’) being dissatisfied with the whole of the judgment and decree delivered on 30 April 2024 by Hon. L.W. Maina, adjudicator, in Meru SCCC No. E037 of 2024: *Patrick Thuranira George v Kenya Wildlife Service*, preferred the present appeal on the following grounds: 2. That the learned trial magistrate/adjudicator erred in law in dismissing the Appellant’s claim as contained in the Statement of Claim dated 18th March 2024; 3. That the learned trial magistrate erred in law in finding that the Appellant had failed to prove special damages relating to the value of the damaged crops notwithstanding the existence of verification forms confirming that the crops had indeed been damaged; 4. That the learned trial magistrate erred in law by apportioning liability at 80:20 in favour of the Appellant and nevertheless proceeding to dismiss the Appellant’s claim in its entirety; 5. That the learned trial magistrate/adjudicator erred in law by disregarding the evidence of the agricultural officer who visited the locus in quo, assessed the extent of crop damage and prepared a report consistent with the contents of the crop verification forms produced before the court; 6. That the learned trial magistrate/adjudicator erred in law by visiting the alleged mistakes of the agricultural officer upon the Appellant and by questioning the acceptability of the formulae applied by the agricultural officer in the absence of any contrary expert opinion, thereby arriving at an erroneous decision dismissing the entire claim with costs; 7. That the learned trial magistrate/adjudicator misdirected herself on the facts and evidence placed before the court, thereby arriving at an erroneous decision; 8. That the judgment of the learned trial magistrate as a whole was unsupported by the evidence tendered before the court by the respective parties. 9. Consequently, the Appellant prayed for the following orders: 10. That the appeal be allowed and the judgment delivered on 30th April 2024 by Hon. L.W. Maina Mouti, Resident Magistrate/Adjudicator, in Meru SCCC No. E037 of 2024: *Patrick Thuranira George v Kenya Wildlife Service* be set aside in its entirety; 11. That this Honourable court be pleased to enter judgment in favour of the Appellant in Meru SCCC No. E037 of 2024 in accordance with the pleadings and submissions filed before the subordinate court; 12. That this Honourable court be pleased to set aside the finding on liability at 80:20 and proceed to make its own determination on liability upon re-evaluation of the evidence on record; 13. That the costs and interest of the proceedings before the subordinate court together with the costs of this appeal be awarded to the Appellant. **Appellant’s submissions** 1. The Appellant further submitted that the learned trial magistrate erred in law in finding that special damages had not been proved notwithstanding the existence of crop verification forms confirming that crops had indeed been damaged. It was contended that the judgment was unsupported by the evidence tendered before the court and that the learned adjudicator misdirected herself on both the facts and the applicable law. 2. The Appellant was emphatic that the learned adjudicator erred in law by apportioning liability at 80:20 in favour of the Appellant but nevertheless proceeding to dismiss the entire claim. According to the Appellant, the trial court thereby arrived at an internally inconsistent decision that effectively denied the Appellant a remedy despite a finding that loss had been occasioned. 3. The Appellant further submitted that the learned adjudicator improperly disregarded the evidence of the agricultural officer, who had visited the locus in quo, assessed the extent of crop damage and prepared a report consistent with the verification forms on record. It was contended that the trial court further erred by visiting the mistakes of the agricultural officer upon the Appellant, particularly in relation to the formulae applied in assessing the loss, despite there being no contrary expert opinion tendered before the court. 4. The Appellant therefore maintained that the learned trial magistrate fell into error by rejecting the expert evidence tendered without any competing or contradictory expert testimony from the Respondent. According to the Appellant, the discrepancies identified by the trial court did not justify the wholesale dismissal of the claim. 5. On the applicable law, the Appellant submitted that this being a first appeal, the court was under a duty to reconsider, evaluate and analyse the evidence afresh and thereafter arrive at its own independent conclusion in accordance with the principles set out in *Selle v Associated Motor Boat Co. Ltd*[1968] EA. 6. The Appellant reproduced the holding in the said case to the effect that an appellate court is not bound to accept the findings of fact made by the trial court where it appears that the court failed to take account of relevant circumstances or materially misapprehended the evidence. 7. The Appellant further submitted that the appeal was properly before the High Court pursuant to s 38 of the Small Claims Court Act, which limits appeals from the Small Claims Court to matters of law only. According to the Appellant, the central issue in the appeal concerned the admissibility and probative value of the expert opinion tendered by the agricultural officer, one Robert Sakora, in proof of the special damages claimed. 8. The Appellant was emphatic that it was not disputed that the Appellant suffered loss as a consequence of the Respondent’s negligence and destruction of crops. In that regard, reliance was placed on *Kenya Wildlife Service v Awuor (Civil Appeal E013 of 2022)*[2023] KEHC 3721 (KLR) as cited with approval in *Khushi Motor Limited v Obuya*(Civil Appeal 313 of 2023) [2024] KEHC 3757 (KLR) for the equitable principle that there can be no wrong without a remedy, encapsulated in the maxim *ubi jus ibi remedium.* 9. The Appellant further relied on *Kenya Wildlife Service v Joseph Musyoki Kalonzo*[2017] KECA 234 (KLR)wherein the Court of Appeal held that a claimant who suffers loss is entitled either to pursue the statutory mechanism under the Wildlife Conservation and Management Act or seek redress under common law through the courts, since every wrong ought to attract a remedy. 10. On the probative value of expert evidence, the Appellant submitted that the learned trial magistrate wrongly interpreted the evidence of the agricultural officer who had assessed the crop damage. It was contended that the agricultural officer had explained that certain files in the series lacked a column, but that in the instant matter all six columns were present and the assessment undertaken was therefore correct. 11. The Appellant further submitted that the learned trial magistrate erred in law in finding that the Appellant had failed to strictly prove special damages to the requisite legal standard. According to the Appellant, the evidence tendered before the court sufficiently established the loss suffered. 12. The Appellant acknowledged that expert opinion is not binding upon the court but maintained that such evidence ought to be accorded due consideration and respect, particularly where it remains uncontroverted. In support of that proposition, reliance was placed on *Parvin Singh Dhalay vs Republic*[1997] KECA 379 (KLR) wherein the Court of Appeal held that while courts are not bound by expert opinions, they must accord such opinions proper respect and consideration. 13. The Appellant was therefore of the view that, in the absence of any contrary expert evidence from the Respondent, the opinion of the agricultural officer ought to have been accepted as representing the correct position regarding the crop damage suffered by the Appellant. 14. The Appellant reiterated that the trial court had correctly found the Respondent liable for the destruction complained of and apportioned liability at 80:20 in favour of the Appellant. It was therefore submitted that the learned Adjudicator erred in dismissing the suit in its entirety despite the finding on liability, contrary to the settled principle that there can be no wrong without a remedy. 15. The Appellant urged the court to re-evaluate the evidence tendered before the subordinate court and arrive at the conclusion that the Appellant had indeed suffered a compensable wrong. Consequently, the Appellant prayed that the appeal be allowed, the judgment delivered on 30 April 2024 in Meru SCCC No. E037 of 2024 be set aside in its entirety, that judgment be entered in favour of the Appellant in terms of the pleadings and submissions filed before the trial court, that the finding on liability at 80:20 be revisited, and that the costs and interest of both the subordinate court proceedings and the instant appeal be awarded to the Appellant.Top of Form **Respondent’s Submissions** 1. The Respondent identified three principal issues for determination, namely: whether the trial court had jurisdiction to hear and determine the claim; whether the appeal satisfied the requirements of s 38 of the Small Claims Court Act and whether special damages had been strictly proved; and lastly, who ought to bear the costs of the appeal. 2. On jurisdiction, the Respondent submitted that original jurisdiction over claims arising from wildlife destruction vests in the County Wildlife Conservation and Compensation Committee established under Section 18 of the Wildlife Conservation and Management Act, 2013. It was contended that the said Committee is statutorily mandated to verify and review claims for compensation arising from loss or damage caused by wildlife. 3. The Respondent further submitted that s 25 of the Wildlife Conservation and Management Act establishes a comprehensive compensation framework for persons who suffer loss, injury or death occasioned by wildlife. According to the Respondent, s 25(4) requires a person whose crops have been destroyed by wildlife and who seeks compensation to first lodge the claim before the County Wildlife Conservation and Compensation Committee for consideration and determination. 4. The Respondent acknowledged that s 25(4) employs the permissive term “may” but argued that the word must be construed contextually. In the Respondent’s view, the provision was intended to prescribe the procedure to be followed by persons desirous of pursuing compensation under the statutory framework, such that once a claimant elects to pursue compensation, the statutory mechanism becomes mandatory. 5. The Respondent therefore submitted that where Parliament has provided an alternative statutory dispute resolution mechanism, parties are obligated to exhaust that mechanism before invoking the jurisdiction of the courts. Reliance was placed on *Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome)*(Civil Appeal 30 of 2020) [2024] KECA 1127 (KLR) where the Court of Appeal held that the statutory dispute resolution process under s 25 of the Wildlife Conservation and Management Act confers original jurisdiction upon the designated committee and that courts ought not to assume jurisdiction in the first instance. 6. Further reliance was placed on *Peter Muturi Njuguna v Kenya Wildlife Service* [2017] KECA 42 (KLR) wherein the Court of Appeal held that although the word “may” is permissive, once a claimant elects to pursue compensation under the Act, the claimant is bound to lodge the claim before the designated statutory forum prior to approaching the courts. 7. The Respondent further submitted that the institution of the suit before the Small Claims Court offended the doctrine of exhaustion. In support of that position, reliance was placed on *Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others*Petition No. 3 OF 2016 and *NGO's Coordination Board v E G & 4 Others*Petition No. 16 OF 2019wherein the Supreme Court underscored the importance of allowing statutory and administrative bodies to determine disputes in the first instance before recourse is had to the courts. The Respondent further relied on*Kimani Wanyoike v Electoral Commission & another*[1995] KECA 128 (KLR) for the principle that where a statute prescribes a clear procedure for redress of grievances, such procedure ought to be strictly followed. 8. The Respondent submitted that the Appellant admitted having lodged the claim before the County Wildlife Conservation and Compensation Committee by completing and submitting the requisite forms to the Respondent for processing. According to the Respondent, the claim had in fact been deliberated upon by the Committee and therefore the Appellant ought to have pursued the statutory process to completion instead of instituting separate proceedings before the court. 9. The Respondent further contended that instituting parallel proceedings founded upon the same cause of action amounted to an abuse of the court process. In support of that argument, reliance was placed on *Peter Muturi Njuguna v Kenya Wildlife Service*[2017] KECA 42 (KLR) wherein the Court of Appeal held that simultaneously filing a statutory claim and a negligence suit founded on the same facts constitutes abuse of the court process. 10. The Respondent additionally relied on *Kenya Wildlife Service v Awuor* (Civil Appeal E013 of 2022) [2023] KEHC 3721 (KLR) where the High Court stayed proceedings pending determination of the claim before the County Wildlife Management and Conservation Compensation Committee. According to the Respondent, allowing the present appeal would result in unjust enrichment by permitting the Appellant to benefit twice from the same cause of action. 11. On the second issue, the Respondent submitted that the appeal does not satisfy the requirements of s 38 of the Small Claims Court Act, which limits appeals from the Small Claims Court to matters of law only. The Respondent contended that the Appellant’s grievance merely concerns the failure by the trial court to award special damages in the sum of Kshs 667 000 arising from contradictions between the crop damage assessment report and the crop damage verification forms. 12. According to the Respondent, the alleged contradictions relate purely to questions of fact and evidentiary inconsistencies rather than any issue of law. It was therefore submitted that the appeal falls outside the statutory confines of s 38 of the Small Claims Court Act and is therefore incompetent. 13. On the issue of proof of special damages, the Respondent submitted that the burden rested upon the Appellant to strictly prove the damages claimed. However, the Respondent maintained that the Appellant failed to discharge that burden since the figures appearing in the crop damage verification forms materially differed from those contained in the crop damage assessment report. 14. The Respondent further submitted that the agricultural officer, Kimathi Ngari, was unable to satisfactorily explain the discrepancies in the figures appearing in the documents, thereby rendering the evidence unreliable and incapable of sustaining the claim for special damages. Consequently, the trial court correctly found the evidence to be lacking in probative value and properly dismissed the suit. 15. The Respondent was emphatic that the mere existence of a single expert report does not compel a court to adopt such evidence unquestioningly. Reliance was placed on *Wanjiku & 7 others v Kamau & 2 others* (Civil Appeal 41 of 2018) [2022] KEELC 14415 (KLR) for the proposition that expert evidence is merely advisory and not binding upon the court. 16. The Respondent further submitted that an expert report is intended only to assist the court and cannot supplant the court’s own judgment. Reliance was placed on *Wang'ondu v Ark Ltd*(Civil Appeal 2 of 2014) [2016] KEHC 3449 (KLR) wherein the court held that expert evidence founded on speculative or irrational reasoning may properly be rejected. 17. Further reliance was placed on *Kagina v Kagina & 2 others*[2023] KECA 55 (KLR)where the Court of Appeal affirmed that a court is entitled to reject expert opinion where there exists a proper and cogent basis for doing so upon evaluation of all the evidence on record. 18. The Respondent therefore submitted that the crop damage assessment report was incredible, inconsistent and unreliable, and consequently lacked any probative value capable of supporting the Appellant’s claim for special damages. 19. On costs, the Respondent submitted that the appeal lacks merit and ought to be dismissed with costs pursuant to s 27 of the Civil Procedure Act, costs following the event unless the court for good reason orders otherwise. Accordingly, the Respondent urged the court to award costs of the appeal to the Respondent **Analysis and Determination** 1. Having considered the memorandum of appeal, the record and the submissions, the following issues arise for determination: 2. Whether the Small Claims Court had jurisdiction to hear and determine the dispute in light of the Wildlife Conservation and Management Act and the doctrine of exhaustion; 3. Whether the instant appeal raises matters of law within the meaning of Section 38 of the Small Claims Court Act; 4. Whether the learned adjudicator erred in law in dismissing the Appellant’s claim for special damages notwithstanding the evidence tendered, the expert opinion adduced, and the finding on liability; 5. Whether the Small Claims Court had jurisdiction to hear and determine the dispute in light of the Wildlife Conservation and Management Act and the doctrine of exhaustion. 6. The Respondent submitted that original jurisdiction over claims arising from destruction occasioned by wildlife vests in the County Wildlife Conservation and Compensation Committee established under s 18 of the Wildlife Conservation and Management Act, 2013. It was contended that s 25 of the Act establishes a complete statutory compensation mechanism requiring claimants whose crops are damaged by wildlife to first lodge their claims before the said Committee. 7. The Respondent further argued that although s 25(4) of the Act employs the term “may,” the provision must be construed contextually so as to render the statutory mechanism mandatory once a claimant elects to pursue compensation. In support of that position, reliance was placed on *Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome)* (Civil Appeal 30 of 2020) [2024] KECA 1127 (KLR) (6 September 2024) (Judgment)and*Peter Muturi Njuguna v Kenya Wildlife Service*[2017] KECA 42 (KLR)where the Court of Appeal held that the statutory mechanism under the Wildlife Conservation and Management Act confers original jurisdiction upon the designated Committee and that claimants must first exhaust that procedure before approaching the courts. 8. The Respondent further relied on *Kimani Wanyoike v Electoral Commission & another*[1995] KECA 128 (KLR)and the decisions of the Supreme Court in *Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others*[2016] eKLR and *NGO's Coordination Board v E G & 4 Others* [2023] KESC 102 (KLR) for the proposition that where Parliament has provided a clear dispute resolution mechanism, such mechanism must be strictly followed before recourse is had to the courts. 9. The Respondent additionally submitted that the Appellant admitted having lodged the claim before the County Wildlife Conservation and Compensation Committee and therefore the institution of parallel proceedings before the Small Claims Court constituted an abuse of the court process likely to occasion unjust enrichment. Reliance was placed on *Peter Muturi Njuguna v Kenya Wildlife Service*[2017] KECA 42 (KLR) and *Kenya Wildlife Service v Awuor*[2023] KEHC 3721 (KLR). 10. The Appellant, on the other hand, maintained that the appeal properly lay before the court and relied on *Kenya Wildlife Service v Joseph Musyoki Kalonzo*[2017] eKLR for the proposition that a claimant who suffers loss arising from wildlife destruction is entitled either to pursue the statutory mechanism under the Act or seek redress through the ordinary courts under common law principles. 11. This court has carefully considered the rival submissions. The doctrine of exhaustion is now firmly embedded in Kenyan jurisprudence and requires parties to first pursue alternative dispute resolution mechanisms established by statute before invoking the jurisdiction of the courts. The Court of Appeal in Speaker of the *National Assembly v James Njenga Karume*[1992] eKLR held that where there exists a clear procedure for redress prescribed by statute, such procedure ought to be strictly followed. 12. However, the Court of Appeal in *Kenya Wildlife Service v Joseph Musyoki Kalonzo*[2017] eKLR clarified that the statutory mechanism under the Wildlife Conservation and Management Act does not entirely oust the jurisdiction of the ordinary courts and that a litigant retains the right to pursue a remedy under common law where circumstances so warrant. 13. The record before this court shows that the Appellant indeed initiated the administrative process before the County Wildlife Conservation and Compensation Committee. However, there is no evidence that the said process culminated in a determination capable of conclusively resolving the dispute. More importantly, the claim before the Small Claims Court was grounded not merely on statutory compensation but also on negligence and the resultant loss suffered by the Appellant. 14. In the premises, this court is persuaded that although the statutory process ought ordinarily to be pursued, the institution of the suit before the Small Claims Court did not entirely divest the court of jurisdiction. The jurisdictional objection therefore fails and this issue is determined in favour of the Appellant. **Whether the instant appeal raises matters of law within the meaning of Section 38 of the Small Claims Court Act** 1. The Respondent submitted that the appeal offends s 38 of the Small Claims Court Act because it merely challenges factual inconsistencies between the crop damage verification forms and the crop damage assessment report. According to the Respondent, the Appellant’s grievance relates purely to matters of evidence and factual contradiction rather than questions of law. 2. The Appellant, however, submitted that the appeal raises questions of law concerning the admissibility, treatment and probative value of expert evidence and the legal propriety of dismissing the claim despite a finding on liability. It was further contended that the learned adjudicator misdirected herself in law by disregarding uncontroverted expert evidence and primary documentary evidence. 3. Section 38 of the Small Claims Court Act expressly limits appeals from the Small Claims Court to matters of law only. The distinction between questions of law and questions of fact has been addressed by the superior courts. In *M’riungu V Republic*(1983) KLR 455 the Court of Appeal held that a question of law includes the application of legal principles to established facts and whether the correct legal test was applied by the trial court. 4. In the instant appeal, the Appellant has challenged the legal treatment accorded to expert evidence, the standard applied by the trial court in determining proof of special damages, and the propriety of entering a finding on liability while simultaneously dismissing the suit in its entirety. These issues transcend mere factual disagreement and invite this court to determine whether the learned adjudicator correctly applied the law to the evidence on record. 5. This court therefore finds that the appeal raises legitimate questions of law falling within the ambit of s 38 of the Small Claims Court Act. Consequently, the appeal is properly before this Court and is competently instituted. **Whether the learned Adjudicator erred in law in dismissing the Appellant’s claim for special damages notwithstanding the evidence tendered, the expert opinion adduced, and the finding on liability** 1. The Appellant submitted that the learned adjudicator erred in law by disregarding the crop verification forms and the evidence of the agricultural officer who had physically visited the locus in quo, assessed the damage and prepared the crop damage assessment report. According to the Appellant, the discrepancies identified in the documents were satisfactorily explained by the agricultural officer, who clarified that certain files in the series lacked a column whereas the present file contained all six columns necessary for proper assessment. 2. The Appellant submitted that the learned adjudicator erred in law by disregarding the crop verification forms which constituted the primary evidence of crop destruction and instead relying on a summary report that admittedly contained transcription errors. The Appellant further contended that the agricultural officer expressly clarified the discrepancies and advised the court that the verification forms should prevail in the event of inconsistency. 3. The Appellant further submitted that the expert evidence tendered by the agricultural officer remained uncontroverted since the Respondent did not call any contrary expert evidence. The Respondent, on the other hand, maintained that the discrepancies between the assessment report and the verification forms rendered the evidence unreliable and incapable of sustaining an award of special damages. 4. The Respondent further argued that expert evidence is merely advisory in nature and may properly be rejected where inconsistent or irrational. Reliance was placed on *Wang'ondu v Ark Ltd* (Civil Appeal 2 of 2014) [2016] KEHC 3449 (KLR) (29 August 2016). 5. This court agrees with the Respondent that special damages must not only be specifically pleaded but must also be strictly proved. That principle has long been settled by the Court of Appeal in*Hahn v Singh* [1985] KECA 129 (KLR). However, strict proof does not mean proof beyond all possibility of error. The court must evaluate whether, taken as a whole, the evidence establishes the loss claimed on a balance of probabilities. 6. Having analysed and re-evaluated the totality of the evidence I find and hold that Appellant was able to demonstrate by the evidence tendered by the agricultural officer the damage that it suffered the only challenge which arose was the disparity between the primary documents and the final report which the agricultural officer explained to have happened during transposition of the figures to the final report. The agricultural officer having explained the discrepancy the trial court ought not have found difficulty in holding that the claim had been proven to the required standard. 7. In the final analysis, I find and hold that the Adjudicator erred in holding that the Appellant had not proven special damages in the face of the evidence on record and the explanation tendered by the agricultural officer. Consequently, this courts sets aside the order dismissing the claim and substitute with an order allowing the claim in the sum of Kshs 667 000 as pleaded in the statement of the claim. 8. I am minded that generally special damages ought not be subjected to contribution but due to the unique circumstances of this case this amount shall be subject to contribution of 20 percent as determined by the trial court the question of liability not having been appealed against by the Appellant. 9. The Appellant is successful. He deserves the costs both in this court and the court below. In the circumstances, the Appellant shall have costs of Kshs 45 000 for this appeal and also shall have costs in the Small Claims Court to be assessed. **Determination** 1. I therefore make the following orders: 2. Judgement on Liability in the ratio of 80:20 percent in favour of the Appellant is upheld; 3. The judgement dismissing the Appellant’s claim in the lower court is set aside and judgement entered in favour of the Appellant in the sum of Kshs 667 000 subject to 20 percent contribution making a total of Kshs 533 600; 4. Costs of Kshs 45 000 to the Appellant; 5. The Appellant shall have costs in the court below; 6. 30 days stay of execution. 7. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT MERU THIS 18th DAY OF JUNE 2026. **D. K. RONO** **JUDGE**