https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8797

Republic v Cabinet Secretary, Ministry of Tourism and Wildlife; Lodeya (Suing as Legal Representative and Administrator of the Estate of Nakuleu Ewesit) & another (Ex parte Applicants) (Judicial Review Application E006 & E007 of 2025 (Consolidated)) [2026] KEHC 8797 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8797 (KLR) Republic of Kenya In the High Court at Lodwar Judicial Review Application E006 & E007 of 2025 (Consolidated) PJO Otieno, J June 12, 2026 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (ORDERS OF MANDAMUS) AND IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT, NO. 47 OF 2013, LAWS OF KENYA AND IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT (COMPENSATION) REGULATIONS, 2017 AND IN THE MATTER OF THE LAW OF REFORM ACT, CAP 26, LAWS OF KENYA Between Republic Republic and Cabinet Secretary, Ministry of Tourism and Wildlife Respondent and Andrew Lodeya (Suing as Legal Representative and Administrator of the Estate of Nakuleu Ewesit) Ex parte Applicant Akaale Nyalamoe (Suing as the Legal Representative and Administrator of the Estate of Ekatorot EIPA) Ex parte Applicant Ruling 1.On 7th October 2025, this Court granted the two respective ex-parte Applicants leave to apply for an order of mandamus to compel the Respondent to release two sums of Kshs. 5,000,000.00 each to the ex-parte applicants. The sums represent the statutory compensation recommended and verified by the Turkana County Wildlife Conservation and Compensation Committee and subsequently validated and approved by the Ministerial Wildlife Compensation Committee in respect of the fatal crocodile attacks on their respective kinsmen. 2.The ex-parte Applicants proceeded to file their substantive Notices of Motion, both dated 29th September 2025, through their advocates, Simiyu Opondo Kiranga & Company. The orders sought by the applications from the court are identical and are expressed: -a.An order of mandamus compelling the Respondent to pay and release to the respective ex-parte Applicants the sum of Kshs. 5,000,000.00 each, to be disbursed directly to the Applicants’ advocates.b.An order directing the Respondent to comply by paying the said approved sums within fourteen (14) days from the date of service of the order of mandamus.c.That the costs of, and incidental to, these applications be provided for and borne by the Respondent. 3.The applications are grounded upon the statutory statements dated 19th September 2025 and the verifying affidavits sworn by Andrew Lodeya Ebei in JR No. E006 of 2025 and Akaale Ngandungo Nyalamoe in JR No. E007 of 2025 on the same date. 4.In JR No. E006 of 2025, the ex-parte Applicant, Andrew Lodeya Ebei, acting as the next of kin and administrator of the Estate of Nakuleu Ewesit, avers that the deceased was viciously attacked and fatally injured by a crocodile on 17th May 2023 while fishing along the shores of Lake Turkana. 5.In JR No. E007 of 2025, the ex-parte Applicant, Akaale Ngandungo Nyalamoe, acting as the mother and administrator of the Estate of Ekatorot Eipa, similarly avers that the deceased was fatally attacked by a crocodile on 1st June 2023 while fishing at the shores of Lake Turkana. 6.Both incidents, it is alleged, occurred as a result of the Respondent’s failure to manage and keep dangerous wildlife under control, in direct breach of their statutory duties. Both incidences were promptly reported to the Lowarengak Police Station and to the local administration through the area chief. Following these reports, officers of the Kenya Wildlife Service visited the scenes, documented the details of the attacks, and assured the bereaved families that the statutory compensation process would be initiated. The Applicants subsequently fulfilled all statutory prerequisites of obtaining letters of administration and completing the prescribed claim forms provided by the Kenya Wildlife Service. 7.For nearly two years, the Applicants engaged in repeated and unsuccessful follow-ups with the Respondent’s offices in Lodwar and Nairobi. They subsequently discovered that the delay was occasioned by the late constitution of the Turkana County Wildlife Compensation Committee. On 7th July 2025, the Community Wildlife Conservation Committee finally convened, verified the claims, found no contributory negligence on the part of either deceased person and recommended the statutory maximum of Kshs. 5,000,000.00 for each claim. 8.These recommendations were subsequently validated and approved by the Ministerial Wildlife Compensation Committee. Despite the clearance of all administrative hurdles, the Respondent has remained silent on the expected disbursements. The Applicants contend that as of September 2025, more than sixty (60) days had lapsed since the final administrative approvals, directly violating the timelines provided under Section 27 of the Wildlife Conservation and Management Act, 2013, and the 2017 Regulations. Response by the Respondent 9.The Respondent, represented by State law under the office of the Honourable Attorney General, filed grounds of opposition dated 7th March 2026, opposing the grant of the judicial review orders. It is their case that the applications are premature because the ex-parte Applicants have failed to exhaust the statutory dispute resolution and compensation mechanisms established under the Wildlife Conservation and Management Act, 2013. 10.The Respondent points to Section 18 of the Act, which establishes the County Wildlife Conservation and Compensation Committee, and Section 19, which defines its statutory mandate to include receiving, investigating, verifying, and recommending claims. It is their position that the statutory scheme is sequential and mandatory, and that compensation does not arise automatically. 11.It is further argued that the Applicants have not demonstrated that the Turkana County Wildlife Conservation and Compensation Committee heard and determined the claims. Specifically, the Respondent highlights that the Applicants have failed to annex the physical minutes or formal proceedings of the Committee meeting, and that no formal document has been produced to show how the compensation sum of Kshs. 5,000.000.00 was determined. 12.Relying on Section 9(2) and (3) of the Fair Administrative Action Act, 2015, the Respondent contends that a court of law must not review an administrative action unless internal mechanisms have been exhausted, and that the Applicants have neither sought nor obtained an exemption from this requirement under Section 9(4) of the Act. Consequently, the Respondent argues that because the Committee has not formally finalized the claims, no enforceable public statutory duty has crystallized. 13.It is asserted that mandamus cannot be used to determine entitlement to compensation, fix the quantum of damages, or bypass statutory verification procedures. On such grounds, the Respondent submits that the applications represent an attempt to circumvent the clear statutory procedure established by Parliament and urges this Court to dismiss the Notices of Motion with costs. Analysis and Determination 14.This Court is called upon to determine whether the administrative objections raised by the Respondent provide a sufficient legal justification to withhold payment of a verified statutory debt, and, if the findings is to the negative, whether the ex-parte Applicants are entitled to the orders of mandamus as sought. 15.The Respondent has vigorously contended that the consolidated applications offend the doctrine of exhaustion of remedies as codified under Section 9(2) and (3) of the Fair Administrative Action Act, 2015. The doctrine of exhaustion is a fundamental tenet of Kenyan administrative jurisprudence. It mandates that where Parliament has provided a clear, specific, and statutory procedure for the resolution of any particular grievance, that procedure must be strictly followed before a party invokes the supervisory jurisdiction of the High Court. This rule is anchored on the principle that specialized statutory tribunals and administrative bodies are uniquely qualified to resolve disputes in their respective domains.11Speaker of the National Assembly v James Njenga Karume [1992] KLR 21 16.However, this doctrine is not an absolute bar and is subject to well-established exceptions, both under common law and Section 9(4) of the Fair Administrative Action Act, 2015. In Aly Khan Satchu vs Capital Markets Authority [2019] eKLR, the court noted that where an internal remedy would not be effective, where its pursuit would be futile, or where the administrative body has failed to act, a party may approach the court directly. 17.In the present applications, the Respondent’s contention that the claims have not been determined by the Turkana County Wildlife Conservation and Compensation Committee is factually contradicted. The ex-parte Applicants have annexed a copy of the replying affidavit sworn by Terry Wauvengo on behalf of the Kenya Wildlife Service dated 11th July 2025 in Lodwar Misc. Application E001 of 2025, which formally documents the meeting of the Turkana County Committee on 7th July 2025 and confirms the approval of the said compensation claims. 18.Moreover, it is not the first time that this court is being faced with a similar application to this. In the previous parallel case of John Akuut Losinyono vs Cabinet Secretary, Ministry of Tourism and Wildlife, Lodwar Judicial Review No. E003 of 2025), brought before this court having arose out of the exact same Turkana County Committee meeting of 7th July 2025, the Respondent never contested liability or the approval of the claim but defended the delay solely on the basis of budgetary constraints and Treasury delays. 19.Its current averments that the claims were never heard or determined by the Committee violates the long-standing legal doctrine that a party cannot approbate and reprobate at the same time. An administrative body or a litigant cannot accept the existence or validity of an administrative decision in one instant while denying its existence in other identical files arising from the same transaction to evade its legal obligations. Public officers and state counsel are bound by the national values and principles of governance under Article 10 of the Constitution, which mandate integrity, transparency, accountability and the rule of law. The State cannot act as a chameleon, changing its factual positions across sister files to frustrate the administration of justice. 20.In any event, by dint of section 112, Evidence Act, what transpired at the Turkana County Wildlife Compensation Committee is with the control and thus special Knowledge of the respondent, hence the burden of proving or disproving same rested with the respondent. In failing to avail the minutes or proceedings therein undertaken, the respondent failed to disprove the positive assertion by the ex-parte applicants. 21.The court holds that once the Turkana County Committee verified the claims on 7th July 2025 and the Ministerial Committee validated them, the administrative process from the perspective of the claimants was complete. The Wildlife Conservation and Management Act, 2013, provides no internal appeal or review mechanism for a claimant whose claim has been approved but remains unpaid. By the fact of there been an award and a validation, the remedy given by the Act gets exhausted and the duty of the respondent to effect the compensation kicks in, and the statute sets timelines. It then becomes a failure on the part of the respondent to perform public duty in accordance with the law and the only remedy then becomes mandamus 22.This court therefore declines the invitation close its doors on a litigant on the false basis that statutory remedy has not been exhausted when the facts dictate otherwise. Forcing the Applicants to return to the CWCC to seek a decision that has already been rendered would be futile, impractical and outrightly unjust. The court thus adjudges the objection regarding exhaustion be without merit and is thus rejected and dismissed. 23.Even if the court were to entertain the Respondent’s position, Section 18 of the Wildlife Conservation and Management Act, 2013 mandates the Respondent to constitute, facilitate, and fund the County Wildlife Conservation and Compensation Committees. The fatal attacks on Nakuleu Ewesit and Ekatorot Eipa occurred in May and June 2023. By its own papers filed, it failed to constitute the Turkana County Committee for nearly two years, rendering the statutory compensation mechanism entirely inoperative and non-existent for the Applicants during that period. 24.The statutory timelines under Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations, 2017, prescribe a total duration of sixty (60) days for the processing and disbursement of human-wildlife compensation. If indeed the respondent failed to constitute the committee within this sixty-day duration which has long lapsed, the Respondent cannot, in fairness and invoke the doctrine of exhaustion under Section 9(2) of the Fair Administrative Action Act, 2015. It cannot invoke its own statutory breaches to defeat the applicants ‘claims. 25.It is a foundational principle of the Fair Administrative Action Act, 2015 that a public authority cannot benefit from its own statutory default to the detriment of citizens who have suffered loss. The Respondent is the very officer responsible for constituting the committee. Its failure to do so, despite the statutory duration having long lapsed, makes the internal remedy ineffective and futile. The failure of the Respondent to perform their statutory duties confirms that the Applicants had no viable internal remedy to pursue. 26.Forcing the Applicants to return to the County Committee to seek a decision that has already been rendered and validated would be highly impractical and futile, satisfying the exceptional circumstances exception under Section 9(4) of the Fair Administrative Action Act, 2015. The preliminary objection regarding the exhaustion of remedies is therefore without merit and is rejected. 27.On whether a clear, specific, and mandatory public statutory duty has crystallized on the part of the Respondent, an order of mandamus is a prerogative command issuing from the High Court, requiring a public body or officer to perform a specific public duty imposed by statute. The Court of Appeal discussed the nature of the remedy of mandamus in Republic vs Kenya National Examinations Council ex parte Githinji & 8 Others [1997] eKLR citing with approval Halsbury’s Laws of England 4th Vol. 7 p. 111 para 89:-“The order of mandamus is the most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative remedy, yet that mode of redress is less convenient, beneficial and effectual…”These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons had failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.” 28.In the circumstances, the first requirement is a public legal duty to act. Section 25 of the Act is the primary provision at play and states that where a person is killed by wildlife listed under the Third Schedule, the personal representative may launch a claim to the County Wildlife Conservation and Compensation Committee. The process involves CWCC verification of the claim under Section 25(2) then submitting it with recommendations to the Cabinet Secretary. The Cabinet Secretary, through the MWCC, considers the recommendations and, where appropriate, pays compensation. The Act specifies a mandatory amount of five million shillings in the case of death. Section 25(3) of the Wildlife Conservation and Management Act, 2013, states that:“The Cabinet Secretary shall consider the recommendations made under subsection (2) and, where appropriate, pay compensation to the claimant as follows: (a) In the case of death, five million shillings...” 29.In the court’s understands the use of the word shall to denote a mandatory obligation rather than a permissive power. While the statutory phrase where appropriate introduces an element of administrative discretion during the verification stage, that discretion is fully exhausted once the County Committee verifies the claim, finds no contributory negligence, recommends payment, and, the Ministerial Committee validates the award. 30.Part IV, Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations, 2017, provides the operational timelines of 30 days for compensation to be effected. Regulation 27(1) and (2) of the Wildlife Conservation and Management (Compensation) Regulations, 2017, mandates that on receipt of a claim, the County Committee shall verify and submit it to the Cabinet Secretary within thirty (30) days and upon receipt of the recommendation, the Cabinet Secretary shall make payments within thirty (30) days. 31.Courts have interpreted these regulations as requiring the settlement of verified claims within 60 days of the incident being reported, or at the very least, within a reasonable timeframe following approval. In the present cases, the Turkana County Committee approved the payments of Kshs. 5,000,000.00 each on 7th July 2025. As of September 2025, more than sixty (60) days had passed since the approvals were granted, and the Respondent had failed to make any disbursements. In total, since the incidents occurred, the Applicants have waited for more than 23 months. One of the key principles of administrative law is that unreasonable delay in performing a statutory duty amounts to a constructive refusal to act, justifying the issuance of an order of mandamus. The court thus determines that there is clear demonstration that the public duty on the respondent had crystalised by the date the application was filed. The respondent thus has a clear and legally vested duty and obligation to perform the statutory duty owed to the ex-parte applicants. 32.For the reasons set out above, the Court finds the consolidated Judicial Review Applications No. E006 of 2025 and No. E007 of 2025 wholly meritorious, and makes the following orders:a.An Order of Mandamus is hereby issued compelling the Respondent to pay and release to the two Ex-Parte Applicants; Andrew Lodeya Ebei (suing as the legal representative and administrator of the Estate of Nakuleu Ewesit) and Akaale Ngandungo Nyalamoe (suing as the legal representative and administrator of the Estate of Ekatorot Eipa), the approved statutory compensation sum of Kshs. 5,000,000.00, each.b.The Respondent is hereby ordered to comply with the Orders of Mandamus issued herein by paying the said approved sums of Kshs. 5,000,000.00 each to the respective Applicants' advocates within thirty (30) days from the date of service of this order.c.The costs of both applications are awarded to the ex-parte Applicants, to be borne by the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE, 2026PATRICK J O OTIENOJUDGE