https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7022

Republic v County Wildlife Conservation & Compensation Committee, Meru & 2 others; Kanario (Ex parte Applicant) (Miscellaneous Application E075 of 2025) [2026] KEHC 7022 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7022 (KLR) Republic of Kenya In the High Court at Meru Miscellaneous Application E075 of 2025 SM Githinji, J May 21, 2026 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (ORDERS BY WAY OF MANDAMUS) AND IN THE MATTER OF THE CONSTITUTION OF KENYA (2010) AND IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT (COMPENSATION) REGULATIONS 2017 ACT NO. 47 OF 2013 LAWS OF KENYA AND IN THE MATTER OF SECTIONS 4 (1), (6), 7, 8, 9 OF THE FAIR ADMINISTRATIVE ACTION ACT Between Republic Applicant and County Wildlife Conservation & Compensation Committee, Meru 1st Respondent Cabinet Secretary Ministry of Tourism and Wildlife 2nd Respondent Kenya Wildlife Service 3rd Respondent and Monica Kanario Ex parte Applicant Ruling 1.For determination is the chamber summons dated 18/6/2025 pursuant to Order 53 Rule 1 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, seeking that;1.This Honourable Court do grant leave to the Applicant herein to apply for an Order of Mandamus by way of Judicial Review directed to the County Wildlife Compensation Committee Meru, cabinet secretary ministry of tourism and wildlife, Kenya Wildlife Service compelling the Respondents to pay the exparte applicant the amounts assessed and indicated in the agricultural report of Kshs. 3,524,620/= being compensation for crop damaged from an elephant attack.2.The Respondents be ordered to comply by paying the exparte applicant the said statutory sum within 14 days from the date of service of the order of mandamus.3.Cost of the application be in the cause. 2.The application is premised on the grounds on the face of it and supported by a verifying affidavit sworn by Monica Kanario, the exparte Applicant on even date. She averred that on 3/02/2022, her leased land parcel No. Igembe/Ndoleli/ Antubetwe Kiongo/2495 was invaded by elephants, as a result of the 3rd Respondent’s negligence and breach of statutory duty under Section 7 of the Wildlife Conservation and Management Act. She reported the incident to the 3rd Respondent’s offices at Meru National park Murera gate via O.B 10/03/02/2022 and was referred to the agricultural officer for assessment of the damage caused on the crops. She filled out the requisite claim form issued on 14/2/2022 attaching all required supporting documents and the 3rd Respondent undertook to facilitate the compensation process to her for the loss and damage suffered. She has on various occasions visited the 3rd Respondent’s offices to follow up on the compensation process, to no avail, thus necessitating this application, and it is fair and equitable that the orders sought are granted. 3.The 1st and 2nd Respondents filed grounds of opposition dated 16/10/2025 that;1.The Chamber Summons Application dated 18th June, 2025 has not met the threshold for the grant of the orders sought.2.The application is misdirected since the 1st and 2nd Respondents have neither failed nor refused to deliberate, verify and/or recommend the compensation of the Applicant since the strict procedures stipulated in the Wildlife Conservation and Management Act, 2013 and the Wildlife Conservation and Management (Compensation) Regulations, 2017 are ongoing.3.It is trite law that for a court to grant an order for Mandamus, the Applicant must prove that there is an express refusal, or an implied refusal through unreasonable delay by the public body. The 1st & 2nd Respondents have not refused and/or delayed in complying with the law in the instant matter.4.The application fails to demonstrate any specific breach of statutory duty or wrongdoing on the part of the 2nd and 3rd Respondents, and there is no evidence establishing neglect, refusal, or failure to perform any duty as required by the law.5.The 1st & 2nd Respondents have not abdicated their statutory roles as alleged by the Applicant, and no evidence has been adduced to support those wild allegations.6.This application is misadvised as it seeks to circumvent the prescribed legal and administrative mechanisms expressly established by the law to handle such claims.7.The Application is misconceived and full of untrue allegations which are not supported by any evidence and therefore should be dismissed forthwith. 4.The 3rd Respondent opposed the application vide a replying affidavit sworn by Wanjiru Christine, its Legal Officer on 25/7/2025. She avers that the 3rd Respondent is not a proper party to the proceedings as the orders sought can only lie against the 2nd Respondent, who is statutorily mandated to pay the ex parte Applicant’s compensation. According to her, the ex parte Applicant has not demonstrated that her claim lodged before the 1st Respondent has been deliberated upon and an award given, and as such, there is nothing for this court to enforce payment for. In her view, the orders sought by the ex parte Applicant would only be granted if the 1st Respondent had deliberated on the claim and given the recommendations to the 2nd Respondent for payment, which has not happened. Submissions 5.The Ex-Parte Applicant, through the firm of G.K Mwilaria & Co. Advocates, filed submissions dated 5/8/2025. Counsel contended that the Exparte Applicant’s claim, the period lapsed since the date of the incident and the following up on compensation justified the invocation of the Judicial Review jurisdiction, and cited Nandwa v Attorney General & another (Judicial Review Application E160 of 2024) [2025] KEHC 3617 (KLR) (Judicial Review) (25 March 2025) (Ruling). 6.The 1st and 2nd Respondents filed submissions through the Attorney General dated 3/11/2025. Counsel cited Meixner & Another v A.G (2005) 1 KLR 189 Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 and Republic v Kenya Revenue Authority, Commissioner Ex parte Keycorp Real Advisory Limited [2019] KEHC 11050 (KLR) on the prerequisites to be met before leave to apply for judicial review orders can be granted. Counsel contended that the application failed to demonstrate any specific breach of statutory duty or wrongdoing on the part of the 1st & 2nd Respondents as there was no evidence establishing neglect, refusal, or failure to perform any duty as required by law. 7.The 3rd Respondent did not file any submissions. Analysis and Determination 8.After critical consideration of the application, the responses thereto and the submissions on record together with the cited authorities, the issue for determination is whether the threshold for grant of leave to apply for Judicial Review Order of Mandamus has been met. 9.Order 53 of the Civil Procedure Rules provides that leave must mandatorily be sought before Judicial Review proceedings can be commenced. 10.The principles which guide our courts when exercising jurisdiction to grant leave under Order 53 of the Civil Procedure Rules were settled in Republic v County Council of Kwale & Another; Kondo & 57 others (Ex parte) [1998] KEHC 2 (KLR) where Waki J (as he then was) enunciated that: “The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration…Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.” 11.In Meixner & another v Attorney General (Civil Appeal 131 of 2005) [2005] KECA 292 (KLR) (16 September 2005) (Judgment), the Court of Appeal held that; “The leave of the court was a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion. The Court of Appeal can only interfere with the discretion of the judge denying the appellants leave to apply for judicial review on the firmly established principles stated in Mbogo v Shah [1968] EA 93.” 12.Evidently, the gist of the ex-parte Applicant’s claim is predicated under Section 25 of the Wildlife Conservation and Management Act and Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations 2017. 13.Without going into the merits of the substantive motion so as not to pre-empt the outcome thereof at this interlocutory stage, I find that the Ex-parte Applicant has demonstrated to the satisfaction of the court that she has an arguable case warranting grant of leave. 14.The upshot from the foregoing is that leave is hereby granted to the Ex-parte Applicant to apply for an order of Mandamus. 15.The substantive motion be filed and served within 21 days from the date hereof. 16.Costs be in the cause. DATED AND DELIVERED AT MERU THIS 21ST DAY OF MAY, 2026.S.M. GITHINJI –JUDGE21/5/2026In the presence of:Miss Mwiraria for the Applicant.Ms. Wanjiru for the first Respondent.Miss Kibiti for the 2nd Respondent.