https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11494

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **JUDICIAL REVIEW APPLICATION NO. E001 OF 2024** **IN THE MATTER OF AN APPLICATION FOR AN ORDER OF MANDAMUS** **AND** **IN THE MATTER OF ARTICLES 22, 23, 47, 48 AND 159 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT NO 47 OF 2013 LAWS OF KENYA** **BETWEEN** **REPUBLIC............................................................................................APPLICANT** **VERSUS** **KENYA WILDLIFE SERVICE.........................................................1ST RESPONDENT** **COUNTY WILDLIFE COMPENSATION COMMITTEE.............. 2ND RESPONDENT** **MINISTERIAL WILDLIFE COMPENSATION COMMITTEE……3RD RESPONDENT** **MUSA OTIENO OKINYI …………...……………………... EX PARTE APPLICANT** **JUDGMENT** Before this Court is the Ex Parte Applicant’s Notice of Motion dated 14th August 2024 seeking an order of mandamus to compel the Respondents to immediately release to the Applicant Advocate herein the sum of Kenya Shillings two Million (Kshs. 2,000,000/=) together with costs of the application. The claim is supported by the grounds in the statutory statement dated 14th August 2024 and the verifying Affidavit of Musa Otieno Okinyi sworn on 14th August 2024 respectively. The Ex-Parte Applicant averred that on 28th April 2020 he was viciously attacked by a hippo at Got Kachola in their home compound while untying cows thus occasioning him grievous injuries of the 1st degree as a result of the 1st Respondent’s negligence and breach of statutory duty as governed by the Wildlife Conservation and Management Act No. 47 of 2013. Following the incident, a report was made at Got Kachola Police Post and the 1st Respondent’s Officers went to take the details and promised to compensate the ex-parte Applicant for the injuries caused in accordance with the provisions of the Wildlife Conservation and Management Act, 2013. That the 1st Respondent convened a meeting of the Community Wildlife Conservation Committee as regards the claim for compensation as mandated to recommend to Ministerial Wildlife Compensation Committee that validates and approves payment of the awards by the committee. the Applicant followed up at the County offices and he was informed that the Ministerial Committee approved the award but he was yet to receive the compensation for the injuries suffered as the 1st Respondent was not forthcoming with information and had been taking him round in circles and he had waited for 3 years. That as a result of the unjustified delay by the Respondents the Applicant decided to seek redress in court through the current application which is meritorious and has been brought without delay. The Respondents filed response through Replying Affidavit sworn by Jackson Kibor on 2nd January 2026 and averred that the Claimant’s claim was verified and a sum of Kshs 500,000/= approved and forwarded to the cabinet Secretary and the approved claim paid by the state through Equity Bank. Mr. Kibor deponed that the claim of 2,000,000/= was a figment of the Applicant’s own imagination and should be dismissed as the 2nd Respondent did not approve or recommend such compensation. Directions were taken that the application be heard by way of written submissions. The Applicant’s Counsel filed submissions dated 25th July 2025 long before the Respondents filed their reply. The submissions were to the effect that **the statute establishes the 1st Respondent herein and the functions spelt out therein. They relied on Sections 6 and 7 of the Wildlife Conservation and Management Act, 2013 which provides that the 1st Respondent is established to perform the following functions, inter alia :-** **"7. The functions of the Service shall be to —** * 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;** **It was further submitted that the legal capacity and the mandate of the 1st Respondent with regards to the case at hand is clear from the above provisions. Amongst them includes the management of the National Parks, Wildlife Conservation areas and sanctuaries under its jurisdiction. This would imply that the 1st Respondent has a statutory mandate to control wildlife.** **On whether the 1st Respondent is mandated to compensate the Ex-Parte Applicant, it was submitted that, the procedure to be followed for payment of damages by a Claimant who opts to pursue a claim under the Act as was done by the exParte applicant is outlined under Section 25 of the Act which provides as follows:-** **"1)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 representatives or successor or assign, may launch a claim to the County Vikiiife Conservation and Compensauon Committee  the jurisdictiæ** **established under this Act.** **2)The County Wildlife Conservation and Compensation Committee established under Section 18 shall veri9 a claim made under subsection (1) and upon verification, submit the claim to the Cabinet Secretary together with its recommendations thereon.** **3)The Cabinet Secretary shall consider the recommendations made under subsection** **(2) and where appropriate, pay compensation to the claimant as follows:-** **a.ln the case of death, five million shillings;** **b.ln the case of injury occasioning permanent disability, three million shillings; c.ln the case of any other injury, a maximum of two million shillings, depending on the extent of the injury."** **The Applicant’s Counsel cited the Court of Appeal case of Kenya Wildlife Service vs Joseph Musyoki Kalonzo [20171 eKLR where it stipulated as follows on this** **Issue:-** **"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. The law on that point as succinctly pronounced in** **Ngera & Another vs Kenya Wildlife Service vs Rift Valley Agricultural Contractors Limited [20141 eKLR among others is still good law on this point. 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."** **The Applicant further relied on the Supreme Court holding in Kenya Wildlife Service —vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No 11 of 2015 (2018) eKLR where it was stated as follows:-** **'A global comparison of laws and jurisprudence relating to animal and wildlife management normally provide that an entity charged with such a management task also collects the revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation for damage made by animals and wildlife...The Wildlife Act gives responsibility to Kenya Wildlife Service as the park revenue collector to compensate for damage occasioned by wild animals.'** **That in view of the foregoing, it is evident that the duty to pay compensation has been positively determined by the Court of Appeal and the Supreme Court. It was therefore their submission that the 1st Respondent is liable to compensate the ex parte applicant, the applicant's claim having been approved following the laid down procedures under Section 25 of the Wildlife Conservation and Management Act. That the 1st Respondent therefore owes the applicant the amount of KShs. 2,000,000/ = as compensation for his injury.** **On whether the Ex Parte Applicant is entitled to the order of mandamus it was submitted that, the exParte applicant has moved this court to compel the Respondents, particularly the 1st Respondent to satisfy a recommendation by the Committees as compensation for the injuries in the sum of Kshs. 2,000,000/=.** **That it is not disputed that the County and Ministerial Committees recommended for compensation in the sum of Kshs. 2,000,000/ = to the exparte applicant as provided for under Section 25 of the Act. However the 1st Respondent has failed to satisfy the said recommendation despite several follow ups by the ex parte Applicant prompting him to file the present application for mandamus.** **The Ex-Parte Applicant’s Counsel further submitted that the court in Kenya Wildlife Service vs Awuor (Civil Appeal E013 of 2022) [2023] KEHC 3721 (KLR) (26 April 2023) (Judgment) and Kenya Wildlife Service vs Abraham M'ngai M'itumitu [2021] eKLR held as follows:-** **"Clearly, the appellant having awarded an amount under the Act, further intervention in court could only have been by the appeal process following upon the provision of the section, that is to say through the mechanism of a first appeal to the tribunal and thereafter a second appeal to the Environment and Land Court. The respondent may have opted to pursue its claim for compensation in negligence for damages for personal injury in the civil court as an alternative to the statutory compensation mechanism. Without deciding, I would consider that the respondent may also have pursued judicial review remedy in the High Court, if so advised by his advocates, for the award of the full award of compensation prescribed under the Act. The respondent may also, as he may be advised by his legal advisors, file an application for extension of time to pursue the appeal process set out in Section 25(6) of the Act."** **The Applicant further relied on the recent case of Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte Applicant) (Judicial Review Application E003 of 2024) [20241 KEI-IC 8086 (KLR where the High Court faced a similar application as the present one in Court and relying on the above authorities held that the Ex Parte Applicant was within her right to file the judicial Review application. The Court went ahead and granted the Application for an order of mandamus compelling the 1 st Respondent therein (Kenya Wildlife Service) to pay the amount of Kshs. 5,000,000 as compensation for the death of the deceased. In light of the foregoing cases, it was their submission that the ex Parte applicant is within his right to file the instant Judicial review to enforce the compensation.** **The Ex-Parte Applicant submitted that he had shown that the Wildlife Conservation and Management Committee recommended for compensation in the sum of Kshs. 2,000 000/= for the injuries as provided for under Section 25 of the Act. Having established that the 1st Respondent's duty to manage and conserve wildlife comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty, it is the ex parte Applicant's case that the 1st Respondent has failed to satisfy the recommendation for compensation.** **The Ex-Parte Applicant further relied on the following authorities to support his claim for compensation:-** * 1. **Republic v Kenya Wildlife Service & 2 others; Oguna (Suing as the Legal Representative of the Estate of Peter Ouma Ogola) (Exparte Applicant)** **(Judicial Review E002 of 2024) [2025] KEHC 2019 (KLR) (7 February 2025) (Ruling)** * 1. **NAROK HCJR/E002/202+ Salonik Murunya Parmuai vs Kenya Wildlife Service** **And County Wildlife Compensation Committe, Homabay And 1 Others** * 1. **Republic v Kenya Wildlife Service & 2 others; Ouma (Exparte Applicant) (Judicial Review Miscellaneous Application E006 of 2024)** **[20251 KEHC 5759 (KLR) (9 May 2025) (Judgment)** **d) LODWAR HCJR/E003/202+Dong01 Eleman Kokoi vs Kenya Wildlife Service And** **County Wildlife Compensation Committe, Turkana And 1 Others** **Based on the strength of the above decisions, the court was urged to allow the application and issue an order of mandamus as sought in the application and also award costs.** **The Respondents did not file any submissions to the application as directed by the court. In the circumstances the court will consider the application, the Replying Affidavit and the Ex-Parte Applicants submissions to determine the claim.** **ANALYSIS AND DETERMINATION** **Having considered the pleadings, affidavits and submissions of the parties, the following issues arise for determination:** 1. **Whether an order of mandamus should issue.** 2. **Who bears the costs of the application.** Judicial review is concerned with the legality of decision-making processes and the performance of public duties by public bodies. The law governing the issuance of an order of mandamus is now settled. Mandamus is a public law remedy issued to compel the performance of a statutory duty where the Applicant has established a clear legal right, the Respondent owes a corresponding public duty, all conditions precedent have been fulfilled, there has been a demand and refusal or unreasonable delay in performance, and there exists no other efficacious remedy. The principles were authoritatively stated in **Republic v Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 234 of 1996** and have consistently been applied in subsequent decisions including **Republic v Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR.** The Ex-Pate Applicant was attacked by a hippo occasioning grievous bodily harm which was attributed to the negligence of the 1st Respondent. He reported to the to the police and an abstract was duly filled and issued. He sought treatment at Migori County Hospital and the treatment notes and P3 form was duly filled confirming grievous injuries suffered as a result of the hippo attack. Subsequently a report was made to the 1st Respondent and the Mr. Kibor for the 1st Respondent has acknowledged in the Replying Affidavit that indeed the Ex-Parte Applicant suffered injuries and according to him compensation of Kshs.500,000/= had already been deposited in his account. The 1st Respondent did not however attach any proof of the recommendation, approval or even payment made to the Ex-Parte Applicant. In the circumstances of the acknowledgement by Mr. Kibor this court finds that the Applicant has met the threshold for issuance of an order of mandamus to compel the Respondents to issue a recommendation for compensation for the injuries suffered by the Ex-Parte Applicant and pay the same within 60 days from the day of this judgment. The costs of this application to be borne by the Respondents. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 24TH DAY OFJULY, 2026.** **JUDGE HIGH COURT OF KENYA** **In the Presence of:-** **Victor – Court Assistant** **Calvince- Court Assistant** **Ex-Parte Applicant Advocate –** **Respondent Advocate -**