[2022] KEHC 2267 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

(CORAM: CHERERE-J)

CIVIL APPEAL NO. E002 OF 2021

BETWEEN

PETER KIRIMI MBOGO....................APPELLANT

AND

KENYA WILDLIFE SERVICES .... RESPONDENT

(Being an appeal from the judgment and decree in Maua CMCC NO. 64 of 2017 by Hon. M.C Nyigei (SRM) on 24th November 2020)

JUDGMENT

1. By a plaint dated 13th April, 2017 and amended on 27th November, 2019, Appellant sought damages as against the Respondent for damage to his crops by wildlife.

2. By a judgment dated 24th November 2020, the learned trial magistrate awarded damages in the sum of Kshs. 2,000,000/-.

The Appeal

3. The Appellant being dissatisfied with the lower court’s decision preferred this appeal mainly on the ground that the court failed to award the pleaded and proved value of the damaged crops.

SUBMISSIONS BY THE PARTIES

4. On 03rd March, 2021, this court directed that the appeal be canvassed by way of written submission which the parties dutifully filed.

Appellant’s submissions

5. Appellant holds the view that the court failed to award the pleaded and proved sum of Kshs. 3,640,000/- and urged the court to enhance the awarded sum of Kshs. 2,000,000/- to of Kshs. 3,640,000/-.

Respondent’s submissions

6. The Respondent submitted that the agricultural officer’s report relied upon by the Appellant was purely based on estimates and that for lack of cogent evidence in support of Appellants claim, the trial court rightly awarded Kshs. 2,000,000/-. Reliance was placed on Simon Sunkuyia Shira V Kilonzo Ng’ang’a Kinila [2020]eKLR .

Analysis and Determination

7. In carrying out its mandate, the appellate court must reconsider the evidence before it, evaluate it and draw its own conclusions.

8. In John Onyango & another vs. Samson Luwayi [1986] eKLRthe Court of Appeal expressed itself as follows: -

“This court will not interfere with the findings of fact of the two lower courts unless it is clear that the magistrate and the judge have so misapprehended the evidence that their conclusions are based on incorrect bases: Abdul v Rubia 1917/1918 7 EALR 73. ”

9. I have carefully perused the record before me, and considered the grounds of appeal and submissions on behalf of both parties.

10. The Wildlife Act provides under Section 3A, stipulates that:

“The functions of the Service shall be to—

……………………….

(c) manage National Parks and National Reserves;

(l) render services to the farming and ranching communities in Kenya necessary for the protection of agriculture and animal husbandry against destruction by wildlife.”

11. The Supreme Court in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] eKLR stated that:

‘It cannot be gainsaid that the services to be rendered by the appellant pursuant to this provision are to ensure crops cultivated, as well as animals reared on land are protected from destruction by wildlife. Any other interpretation of this provision would be grossly narrow and simplistic………………….. In the present matter Section 3A without a doubt imposes a duty on the appellant to protect the crops from destruction by wildlife.”

12. From a perusal of the judgment, I do find that the learned trial magistrate rightly found that Appellant’s crops were destroyed by wildlife and he suffered loss.

13. In Capital Fish Kenya Limited v The Kenya Power and Lighting Company Limited [2016] eKLR, the court stated

“The appellant apart from listing the alleged loss and damage, it did not, according to the respondent, lead any evidence at all in support of the alleged loss and damage. As it were, the appellant merely threw figures at the trial court without any credible evidence in support thereof and expected the court to award them. Indeed, there was not credible documentary evidence in support of the alleged special damages.”

14. A careful consideration of the agricultural officer’s report relied upon by the Appellant reveals that it was purely based on estimates and lacked cogent evidence upon which the learned trial magistrate would have awarded the sum of Kshs. 3,640,000/-.

15. Concerning whether the court should interfere with the trial court’s award, I have considered the holding in the case of Kemfro Africa Limited t/a Meru Express Services, Gathogo Kanini v A.M.M Lubia & Another (Supra)the Court of Appeal stated as follows:

"the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage."

16. From the evidence on record, I find that the Appellant failed to discharge the burden to prove that he suffered the loss of Kshs. 3,640,000/-. I am persuaded that the learned trial magistrate’s award of Kshs. 2,000,000/- was well founded on the evidence before the court and find no reasonable grounds to interfere with it.

17. In the end and for the reasons given on the foregoing analysis, I have come to the conclusion that this appeal has no merit and it is dismissed with costs to the Respondent.

DATED AT MERU THIS 10TH DAY OF FEBRUARY, 2022

WAMAE. T. W. CHERERE

JUDGE

Court Assistant -Morris Kinoti

For Appellant - Ms. Otieno for M/s Mbogo & Muriuki Advocates

For Respondent - Mr. Kariuki for M/s Mithega & Kariuki Advocates