https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9386

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **JUDICIAL REVIEW APPLICATION NO.E002 OF 2025** **REPUBLIC ………………...…..……………………………..APPLICANT** **VERSUS** **COUNTY WILDLIFE COMPENSATION** **COMMITTEE, HOLA …………………………..1ST RESPONDENT** **CABINENT SECRTARY MINISTRY OF** **TOURISM & WILDLIFE …………………...........2ND RESPONDENT** **KENYA WILDLIFE SERVICE…......................3RD RESPONDENT** **AND** **SAMSON MUNYOKI NDUNDA ………….EX PARTE APPLICANT** **JUDGMENT** 1. The Ex parte Applicant has filed a Judicial Review application dated 23rd May 2025 seeking for an order of mandamus directed to the Respondents to compel them to settle a claim lodged by the Ex parte Applicant as per the provisions of section 25 Rule 4 of the Wildlife Conservation and Management Act No.46 of 2013 (herein referred to as the WCMA or the Act). They also seek for costs of the application. 2. The application was opposed by the 3rd Respondent on the grounds, inter alia, that compensation for human-wildlife conflicts is not within the mandate of the 3rd Respondent. 3. The 1st and 2nd Respondents were served with the application but did not file responses. **Case for Ex parte Applicant** 4.The case for the Ex parte Applicant is that he is a farmer at Bilisi area in Bura within Tana River County. That on the 3rd April 2024 elephants invaded his farm and destroyed his farm produce that was ready for harvesting. He reported the incident at the 3rd Respondents offices and filed out the requisite claim form together with the supporting documents. That the respondents have failed to finalize the compensation. That he has waited for over one year and the Respondents have continued to delay the compensation without any plausible explanation. That the Respondents are public bodies established under statute with clear obligations and have breached their statutory duty to the detriment of the Ex parte Applicant. **Case for 3rd Respondent** 5.The case for the 3rd Respondent was that it has no mandate under the WCMA to compensate the Ex parte for any injuries sustained. That the mandate fell under the ambit of the 2nd Respondent. 6.The application was disposed of by way of written submissions. **Ex parte Applicant`s submissions** 7.Counsel for the Ex parte Applicant submitted on four issues – 1. the mandate of the 3rd Respondent; 2. the relationship of the 1st and 2nd Respondents with the 3rd Respondent; 3. whether the 3rd Respondent is a necessary party to the suit, and 4. whether the court can grant the orders sought. 8. On the first issue the Ex parte Applicant submitted that the functions of the 3rd Respondent are outlined under section 7 of the Wildlife Conservation and Management Act to include- 1. Conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction; 2. Provide security for wildlife and visitors in national parks, wildlife conservation areas and sanctuaries; 3. Set up a country wildlife conservation committee in respect of each county. 4. Promote or undertake commercial and other activities for the purpose of achieving sustainable wildlife conservation; 5. Collect revenue and charges due to the national government from wildlife and, as appropriate, develop mechanisms for benefit sharing with communities living in wildlife areas; (m) Advise the National Land Commission, the Cabinet Secretary and the Council on the establishment of national parks, wildlife conservancies and sanctuaries; (n) Promote and undertake extension service programs intended to enhance wildlife conservation, education and training. 9. It was submitted that none of these functions includes the duty to pay for human-wildlife claims. 10. On the second issue it was submitted that the 1st Respondent is an agent of the 3rd Respondent to assist in carrying out the fundamental roles of the 3rd Respondent. That under section 16 of the Act the Board of Trustees of the 3rd Respondent has the duty to, inter alia, make provisions for the estimated expenditure of the service for the financial year and in particular: **(a) payment of salaries, allowances, pensions, gratuities and other charges in respect of the staff of the Service, regional wildlife conservation area committees and community wildlife scouts;** **(b) payment of salaries, allowances, pensions, gratuities and other charges in respect of the county wildlife conservation and compensation committees, as the case may be;** **(c) payment of allowances in respect of the County Wildlife Conservation and Compensation Committees…..** 11. It was submitted that the section shows that the 1st Respondent is an agent of the 3rd Respondent. Further reliance in this respect was placed in sections 18 and 25 of the Wildlife Conservation and Management Act and the in the case of **Judicial Review Application No. E054 of 2024 In the matter of Republic v Kenya Wildlife Service & County Wildlife Conservation & Compensation Committee, Kiambu & Director, Ministerial Conservation Compensation Committee and Joyce Wangui Muhia** where the court affirmed that it is the County Wildlife Conservation and Compensation Committee that has the mandate to verify a claim on behalf of the 3rd Respondent. 12. On whether the 3rd Respondent is a necessary party in the suit, it was submitted that the functions of the 3rd Respondent as provided by section 7 of the Act include the management of National Parks and rendering services to the farming and ranching communities in Kenya necessary for the protection of agriculture and animal husbandry against destruction by wildlife. Reliance was placed in the Court of Appeal decision in **Kenya Wildlife Service v Joseph Musyoki Kalonzo** **(2017) eKLR** where it was held: **The appellant admits the duty to manage and conserve wildlife. That duty comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty.** 13. Reliance was also placed in **Joseph Boru Ngera & another v Kenya Wildlife Service & Rift Valley Agricultural Contractors Limited (2014) eKLR** it was held: **The cabinet secretary referred to in the Act pays money on behalf of the appellant. Neither the court nor the parties should concern themselves with the internal arrangement of the appellant as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.** 14. On whether the court can grant the orders sought, it was submitted that a claim for judicial review must challenge a decision, act or failure to act by a body exercising a public function. That an order of mandamus is to compel the performance of a public duty which is imposed on a person or body of persons by a statute where there is failure to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. That the Ex parte Applicant is entitled to an order of mandamus to compel the Respondents to pay through the 3rd Respondent as it is the body statutorily bound to protect crops and domestic animals from destruction by wild animals as provided under Section 3A of the WCMA. The Applicant relied on the holding in the case of **Republic v Kenya Wildlife Service & 2 others: Koros (Ex parte Applicant)** [**[2025] KEHC 11774 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11774/eng%402025-07-31)where the Court held that the fact that KWS has the duty to manage wildlife comes with the responsibility to compensate claims for loss or damage caused by wildlife. More so that it remained liable as the body tasked with implementing the statutory framework under the WCMA 15. It was submitted that in this matter the value of the crops damaged was Ksh.933,301/= as per Crop Damage Assessment Report dated 3/4/2024. That the Respondents have not given any justification for failure to notify the Ex parte Applicant of their decision. That more than one year has lapsed since the time the claim was lodged. The Ex parte Applicant urged the court to compensate the Ex parte Applicant to the tune of KKsh.933, 310/=. **3rd Respondent`s submissions** 16. The 3rd Respondent submitted that the 1st Respondent is established under section 18 of the WCMA. That all the members of the Committee save for the secretary are drawn from outside the officers of the 3rd Respondent. That Section 16(3) and (4) provides that it is the Cabinet Secretary upon the advise of the Salaries and Remuneration Commission and with the concurrent of the National Treasury who shall make the final decision regarding the payment of allowances of the members of the committee. It was submitted that this is a clear indication that the committee is created and controlled by the National Government through the 2nd Respondent. 17. It was submitted that Section 8 of the WCMA as referred to by the Ex-parte Applicant does not show any nexus between the 1st and the 3rd Respondent. That other than the Director General of the service who acts as the Secretary to the Board of Trustees, there is no other relationship between the Board of Trustees and the 3rd Respondent that can be inferred to demonstrate that the 1st Respondent acts on behalf of the 3rd Respondent. That the 1st Respondent is expected to be impartial and free from any influence whatsoever by the 3rd Respondent in order to ensure that justice is served to victims and claimants in human-wildlife conflicts. That if any relationship is to be deduced, it would be that of the 3rd Respondent assisting the 1st Respondent with information as received from claimants. That the submission that the 1st Respondent is in operation to assist in carrying out the fundamental roles of the 3rd Respondent is false and misleading. 18. It was submitted that Section 18(2) provides that the committees may hold a maximum of four (4) meetings every financial year and further that in case an additional meeting is to be held by the committee, the same may be held with the prior approval of the Cabinet Secretary – the (2nd Respondent). That this shows that the Committee is under the control of the national government. 19. It was submitted that the functions of the 1st Respondent under Section 19(a) of the Act are to: **“review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife,”** 20. That all cases of human-wildlife conflicts are first reported to the 3rd Respondent which, through its officers, documents the occurrences through its Occurrence Book and the Compensation Claim and forwards the information to the committee for deliberation. That the recommendations made to the 3rd Respondent by the 1st Respondents upon deliberation of the claims, are communicated to the 2nd Respondent, who is expected to settle the claims. Should the Cabinet Secretary fail to settle the claims for whatsoever reason, then such decision shall be communicated to the claimant/victim through the 3rd Respondent and the Claimant shall be at liberty to appeal to the National Environment Tribunal as provided for in Section 25(6) of the WCMA. 21. It was consequently submitted that it is the 2nd Respondent who oversights and controls the functions of the 1st Respondent such that any judgment entered against the 1st Respondent can only be properly dealt with by the 2nd Respondent and not the 3rd Respondent. Therefore, that the 3rd Respondent is an improper party in the matter and that the reliefs sought against should not be granted. 22. The 3rd Respondent submitted that an order of mandamus cannot issue against it. Reference was made to the case of **Republic v Kenya Vision 2030 Board & another Ex-parte Eng Judah Abekar [2015], eKLR** where the court quoted the Court of Appeal decision in **Kenya National Examination Council vs Republic Ex parte Geoffrey Gathenji Njoroge**, which quoted paragraph 90 Halsbury’s Law of England 4th Edition Volume 1 at 111 on whom and in what circumstances an order of mandamus can issue: **“The order of mandamus is of a 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 legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”** 23. Also cited was **Republic v Kenya Vision 2030 Board & another Ex-parte Eng Judah Abekar [2015], eKLR,** wherethe court stated: **In** **REPUBLIC v THE COMMISSIONER OF LANDS AND ANOTHER EX-PARTE KITHINJI MURUGU M’AGERE, Nairobi High Court Misc. Application No. 395 of 2012, G.V. Odunga, J explored the circumstances under which an order of mandamus can issue. I beg to quote him …. as follows:** …….. **A party in a judicial review seeking an order of mandamus must show the existence of a statutory duty conferred or invested by statute upon some person, body of persons or tribunal which such person, body of persons or tribunal has failed to perform. See Republic vs. Registrar of Societies & 5 Others ex parte Kenyatta & 6 Others Nairobi HCMCA No. 747 of 2006 [2008] 3 KLR (EP) 521.** 24. The court in that matter in its conclusion stated: **From the cited decisions, it is apparent that an order of mandamus will issue to compel the performance of a statutory duty owed to an applicant. Therefore, the fulcrum of an order of mandamus is that a statutory duty must be owed to an applicant and the public officer or public body, after being asked to perform the duty, has refused or failed to discharge that duty and there is no other adequate remedy.** 25. It was therefore submitted that an order of mandamus cannot issue to compel 3rd Respondent to perform a statutory duty expressed in law to be owed to the Ex parte Applicant by another institution totally different from the 3rd Respondent. 26. It was submitted that the 3rd Respondent is established under Section 6 of the Wildlife Conservation and Management Act, 2013 and its functions are provided for under Section 7 of the Act. That the functions listed in section 7 do not include the function to settle compensation awards made under Section 25(4) or 25(5) of the WCMA. 27. It was the submission of the 3rd Respondent that Section 24 of the WCMA provides for establishment of a scheme by the government for the purposes of compensation for claims resulting from human-wildlife conflict. Therefore, that the person supposed to settle the amount awarded by the 1st Respondent is either the 2nd Respondent through the amount defrayed by the government for this purpose into the Wildlife Compensation Scheme as provided for in Section 24 of the WCMA or by the 1st Respondent as provided for in Section 25(5) of the WCMA. That in view of the foregoing judgment cannot be entered against the 3rd Respondent. **Analysis and determination** 28. I have considered the pleadings and the arguments raised in the matter. The 3rd Respondent argued that it is the government through the Ministry of Tourism and Wildlife and or the Wildlife Compensation Committee that have the mandate to pay human-wildlife claims. Therefore, that no judgment should be entered against the 3rd Respondent. 29. The Ex pate Applicant on the other hand argued that the duty falls on the 3rd Respondent to pay the said claims. The issues for determination are therefore in my view: 1. Whether the 3rd Respondent is a necessary party in the case. 2. Whether it is the mandate of the 3rd Respondent to pay human-wildlife conflicts claims, and if so 3. Whether the orders sought should issue. ***Whether the 3Rd respondent is a necessary party in the case*** 30. The WCMA gives the 3rd respondent the mandate to receive compensation forms from claimants and forward them to the 1st Respondent. After the 1st Respondent has dealt with the matter and a decision is made, the same is communicated to the claimant by the 3rd Respondent. The official of the 3rd Respondent is the secretary of the County Wildlife and Compensation Committees. More so it is the duty of the 3rd Respondent to manage wildlife and national parks. All these duties make the 3rd respondent a necessary party in the case. The procedure for compensation involves all the three respondents sued herein. The 3rd respondent is therefore a necessary party in this case. ***Whether it is the mandate of the 3rd Respondent to pay human-wildlife conflict claims*** 31. It is in the first place important to note that the Act establishes the secretary of the County Wildlife Compensation Committee as being an officer of the 3rd Respondent. It is also to be noted that the Director General of the 3rd Respondent is the secretary of the Board of Trustees that manages the affairs of the 3rd Respondent. More so that the functions of the 3rd Respondent under section 7 of the WCMA include the duty to: **(a) conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction and national Reserves.** **(e) collect revenue levies and charges due to the national government from wildlife and, as appropriate, develop mechanisms for benefit sharing with communities living in wildlife areas.** 32. Section 8 of the Act establishes the Board of Trustees of the 3rd Respondent as the management organ of the 3rd Respondent. Section 9 of the Act provides for the functions of the Board of Trustees to be, inter alia, the approval of the strategic plans, operational policies and capital and recurrent budget of the service. Section 16 provides that the Board shall make provisions for the estimated expenditure of the service for the financial year and in particular: **(b) payment of salaries, allowances, pensions, gratuities and other charges in respect of County Wildlife Conservation and Compensation Committees.** 33. In view of the fact that it is the duty of the 3rd Respondent to manage national parks, collect revenue from such and more so that its Board of Trustees is by law required to budget for money for compensation of the human-wildlife conflict claims, I am of the view that the 3rd Respondent cannot distance itself from payment of such claims. 34. Indeed, Kenyan courts in various judgments have rendered themselves on the issue that the 3rd Respondent is liable to shoulder payments in human-wildlife conflict claims. The Court of Appeal in **Kenya Wildlife Service v Joseph Musyoki Kalonzo** **(2017) eKLR** stated that: **The appellant admits the duty to manage and conserve wildlife. That duty comes with the attendant responsibility to shoulder any claims of loss or damage caused by breach of that duty.** 36. This was approved by the Supreme Court in **Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited (2018) eKLR** where the Court stated that: **65. It follows, therefore, that though the government would ideally be expected to have control of the wildlife, factually it was the KWS which had the duty of control of the wildlife by dint of section 3A of the Wildlife Act. Consequently, the liability for the damage occasioned falls on it.** **The Wildlife Act gives the responsibility to KWS as the park revenue collector to compensate damage occasioned by wild animals.** 37. In **Joseph Boru Ngera & another v KWS V Rift Valley Agriclt Contractors Limited (2014)** **e KLR** the court stated that: **The cabinet secretary referred to in the Act pays money on behalf of the appellant. Neither the court nor the parties should concern themselves with the internal arrangements of the appellant as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.** 38. In view of the foregoing, it is my finding that the duty to compensate for claims arising from human-wildlife conflicts falls on the 3rd Respondent. ***Whether the orders sought should issue*** 39. The Ex parte Applicant is seeking that this court issues an order of mandamus compelling the Respondents to settle the claim as per the provisions of section 25 rule 4 of the WCMA No.46 of 2013. **Section 25 (1)** provides as follows:- **Where any person suffers any bodily injury or is killed by any wildlife listed under the third schedule, the person injured, or in the case of a deceased person, the personal representative or successor or assign, MAY launch a claim to the country wildlife conservation and compensation committee within the jurisdiction established under this Act.”** 40. The procedure for compensation in human-wildlife conflict claims is set out under the WCMA. Since the Ex parte Applicant brought his claim under the WCMA, a decision has to be made in accordance with the provisions provided by the Act. 41. It is the case for the Ex parte Applicant that he has followed the procedure provided by the Act to lodge his claim but that the Respondents have sat on the claim for over a year without making a decision over the same. He has not been informed of the reasons behind the delay. 42. The essence of an order of mandamus is to compel a public body to perform a duty required of it by the law. In **Republic v Kenya Vision 2030 Board & another Ex-parte Eng Judah Abekar [2015] eKLR,** the court held that: **From the cited decisions, it is apparent that an order of mandamus will issue to compel the performance of a statutory duty owed to an applicant. Therefore, the fulcrum of an order of mandamus is that a statutory duty must be owed to an applicant and the public officer or public body, after being asked to perform the duty, has refused or failed to discharge that duty and there is no other adequate remedy.** 43. The purpose of an order of mandamus was explained in **Ex parte Gathenji** (supra) to the effect that: **…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 legal remedy, yet that mode of redress is less convenient, beneficial and effectual.** 44. The Respondents are public bodies and have failed to make a decision on the Ex parte Applicant`s claim within reasonable time. It is more than one year since when the Ex parte Applicant lodged the claim. This in my consideration amounts to inordinate delay. I am of the view an order of mandamus is the most appropriate remedy in this matter and the same should issue to compel the Respondents to act on the Ex parte Applicant`s claim within a limited period of time. 45. In view of the foregoing, I find the prayer to issue an order of mandamus to be merited and therefore make the following orders: 1. **An order of mandamus do and is hereby issued to the Respondents directing them to consider and make a decision in accordance with the provisions of the Wildlife Conservation and Management Act on the claim lodged by the Ex-parte Applicant herein and communicate the decision to him within three months from the date of delivery of this ruling.** 2. **The Ex-parte Applicant to have the costs of the application.** **Delivered, dated and signed at GARSEN this 4th day of June 2026.** **J. N. NJAGI** **JUDGE** **In the presence of:** **Mr. Ndungu for Ex parte Applicant** **Mr. Nyaga for 3rd Respondent** Court Assistant - Rahma