[2022] KEHC 102 (KLR)

Republic v Kenya Wildlife Service & 3 others; Musau (Interested party) (Judicial Review Miscellaneous Application 54 of 2020) [2022] KEHC 102 (KLR) (7 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 102 (KLR)

Republic of Kenya

In the High Court at Machakos

Judicial Review Miscellaneous Application 54 of 2020

MW Muigai, J

February 7, 2022

N THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND IN THE MATTER OF WILDLIFE CONSERVATION AND MANAGEMENT ACT, 2013

Between

Republic

Applicant

and

Kenya Wildlife Service

1st Respondent

Cabinet Secretary, Ministry of Tourism and Wildlife

2nd Respondent

Attorney General

3rd Respondent

Director Ministerial Conservation Compensation Committee

4th Respondent

and

Tabitha Kanini Musau

Interested party

Ruling

1. AMENDED NOTICE OF MOTIONTHAT this Court be pleased to grant an order for Judicial Review in the nature of CERTIORARI to quash the decision of the Ministerial Wildlife Conservation Compensation Committee made on the 7th October, 2019 dismissing the Appellant’s claim for compensation.

2. The application is supported by the following grounds:-1. That the Exparte Applicant was granted leave to commence the instant Judicial Review proceedings on the 29th July, 2020. 2.That on 25th January, 2015, while working at her farm at Oldonyo Sabuk within the Machakos County, the Exparte Applicant was violently attacked by two stray buffaloes from the Oldonyo Sabuk National Park.3. That the Exparte Applicant was severely injured and was admitted to the Immaculate Heart of Mary Hospital for ten days, and even thereafter, continued visiting her local hospital to have her healthmonitored.4. That the Exparte Applicant thereafter applied for compensation, and on the 20th March, 2015, she submitted to the Oldonyo Sabuk National Park Offices a duly filled Kenya Wildlife Services Compensation Claim Form, a Kenya Police Medical Examination Report (P3 form), and all her medical treatment notes and receipts.5. That after waiting for more than five years on the 12th December, 2019 she was issued with a Kenya Wildlife Service letter dated 7th October 2019, which informed her that a body by the name of Ministerial Wildlife Conservation Compensation Committee had rejected her claim for compensation because of inconsistencies in the various claim documentations.6. That the Ex-parte Applicant inquired at the 1st Respondent’s Offices at Machakos of the alleged inconsistencies. However, up to date, she has never been issued with any information on the alleged inconsistencies cited in the decisions by the aforesaid Ministerial Wildlife Conservation Compensation Committee.7. That the Ex-parte Applicant has never been summoned byeither the 1st or 2nd Respondent or the said Ministerial Wildlife Conservation Compensation Committee to clarify and issues, inconsistencies, and or discrepancies arising from her claim documentation further, she was not even issued with the final report made to the Cabinet Secretary or the Ministerial Wildlife Conservation Committee.8. That the Respondents rejected the Ex-parte Applicant’s claim prematurely, denied her a chance to be heard contrary to the Constitution, the Fair Administrative Actions Act and the rules of Natural Justice.9. That the said Ministerial Wildlife Conservation Committee failed to give the grounds on which their decision was based contrary to the Fair Administrative Actions and the Rules of Natural Justice.10. That the process adopted by the above Ministerial Committee in determining the Ex-parte Applicant’s claim for compensation does not conform to the rules of natural justice, and the national values espoused under Article 10 of the Constitution.REPLYING AFFIDAVIT FILED ON 25THJAN 2021 BY KWS

3. That the Applicant has not disclosed any cause of action against Kenya wildlife Service and consequently urge that the name of KWS be struck off the proceedings.

4. That Section 25 of the Wildlife Conservation and Management Act 2013 addressed the subject of compensation for personal injury or death or damage to property occasioned by Wildlife as follows:25 (1)where any person suffers any bodily injury or is killed by any wildlife listed under the third Schedule, the person injures, or in the case of a deceased person, the personal representative or successor or assign, may launch a claim to the county Wildlife Conservation and Compensation Committee within the jurisdiction established under this Act.(2)The County Wildlife Conservation and Compensation committee established under section 18 shall verify 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)in the case of death, five million shillings;(b)in the case of injury occasioning permanent disability, three millions shillings;(c)in the case of any other injury, a maximum of two million shillings, depending on the extent of injury.(4)Any person who suffers loss or damage to crops, livestock or other property from Wildlife specified in the Seventh Schedule hereof and subject to the rules made by the Cabinet Secretary may submit to the county Wildlife conservation and Compensation Committee who shall verify the claim and recommendations as appropriate and submit it to the service for due consideration.(5)The County Wildlife conservation and Compensation Committee shall review the claim and award and pay a compensation valued at the ruling market rates.Provided that no compensation shall be paid where the owner of the livestock, crops or other property failed to ...............”

5. That nowhere is KWS mentioned in matters of Compensation hence their presence in this case is unwarranted.

6. That an officer for KWS being the officer for the County is required under the Provisions of Section 18 the Wildlife Conservation and Management Act 2013 to serve as the secretary to the County Wildlife Conservation and compensation Committee which consists of a total of 13 individuals/persons representative of various governmental organs ie.“18 (a) a chairperson appointed by the Cabinet secretary through a competitive process, who shall have at least five years’ experience in Wildlife conservation and management;(b)a representative of the county government;(c)an agricultural officer based in the country;(d)a land use planning officer responsible for the county;(e)a livestock officer responsible for the county;(f)The officer of the Service for the county who shall be the secretary;(g)four persons not being public offices knowledgeable in wildlife matters and nominated by the community wildlife associations within the area through an elective process.(h)Monitor the implementation of management plans for any relevant national park in collaboration with the Service;(i)Develop and implement, in collaboration with community wildlife associations, mechanisms for mitigation of human wildlife conflict;(j)review and recommend claims resulting from loss or damage caused by wildlife for payment of compensation;(k)undertake education, extension services and public awareness; and(l)perform such other functions as the Service may require or delegate to it”

5. That without prejudice to the matters aforegoing KWS officer servicing as the secretary of the County Wildlife Conservation and Compensation (CWCCD) serves the roles of merely facilitating the operational matters of the said committee such as providing an avenue for members of the public to collect and return compensation forms, taking down minutes of the committees’ meetings and communicating to the public the decisions of the said committee and it does not make them liable for matters arising out of wildlife – human conflict. It is under that context that the letter dated 7/10/2019 was written to the ex-parte applicant.

6. That further and without prejudice to the matters aforegoing the reason given in the said letter dated 7/10/0219 was unequivocal and that is why the claim was rejected due to in consistencies in the date of incident indicated in the various claim documentation.

7. That on the said committee, the locals including the Ex-parte Applicant are represented by four persons not being public officers knowledgeable in wildlife and nominated by the Community Wildlife Associations within the area through an elective process. These four individuals represent the interests of the local community and speak on behalf of any affected individual as elected representatives.REPLYING AFFIDAVIT IN RESPONSE TO 2ND, 3RD, AND 4TH GROUND OF OPPOSITION DATED 30TH JUNE, 2021.

8. That the decision of the Ministerial Wildlife compensation committee was issued on the 7th October, 2019.

9. That the Exparte Applicant was informed on the decision on the 19th December, 2019 when she collected the letter dated 7th October, 2019 from the Oldonyo Sabuk National Park offices.

10. That in the month of March 2020, the Exparte Applicant instructed the firm of M/S Mulekyo and Co. Advocates to lodge Judicial Review proceedings praying to quash the said decision.

11. That again the month of March, 2020 the country was placed under lock down due to Covid – 19 and as such physical filling of documents in court was not possible.

12. That as a result of the forgoing, on the 7th April, 2020 the Exparte Applicant advocates on record wrote to the Machakos High Court Registry asking to be allowed to file the chamber summons application for leave via email.

13. That the Exparte Applicant was advised by her advocates on record that as guided by Eldoret High Court Civil Appeal No. 23 of 2004 Savana Saw Mills Limited –vs- George Mwale Mudomo [2005] eKLR that a document is considered filed once court filing fees have been paid.

14. That the Ex-parte Applicant case was therefore filed exactly 6 months from 7th October, 2019 when the impugned decision was issued, and within 3 months and 19 days from the 19th December, 2019 when the impugned decision was issued.RESPONDENT’S WRITTEN SUBMISSIONS

15. On whether the application by the ex-parte Applicant is time barred it was submitted that;“In the case of Benjamin Leonard Mafay –vs- United Africa Company Limited (UK) 1962 AC 1962 AC 152 it was held that if an act is void, then in law it is a nullity, it is not only bad, but incurable bad.... and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”

16. Section 9(3) of the Law Reform provides that;“In the case of an application for an order of certiorari to remove any judgement order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such short period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceedings is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

17. Section 9 (3) of the Law Reform Act was upheld in the case of Republic –vs- Kenya urban road authority & 2 others JR Misc. Civil appl. No. 121 of 2016.

18. On whether the Applicants are seeking for remedies on the substance of the matter the Respondent cited the Civil Appeal No. 180 of 2013 – Isaack Osman Sheik – vs- IEBC & Others.APPELLANT’S SUBMISSIONS

19. On the issue whether the 1st Respondent is a necessary party to these proceedings the case of Tuck & Sons limited (1956) I ALL ER 273 was cited where it was held that the only reasons which make its necessary to make a person a party to an action is so that“he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.”

20. In Republic –vs- Kenya Revenue Authority Exparte Yaya Towers limited [2008] eKLR the Court stated that:“The grounds for judicial review have experienced unprecedented increase and the challenge for the court is to weigh each and every case presented before it on its own merits. However, there are conservative grounds that have remained outstanding in judicial review challenged such as:-i.Abuse of discretionii.Irrationalityiii.Improper motivesiv.Failure to exercise discretionv.Abuse of the rules of natural justicevi.Fettering of discretionvii.Error of law”

21. The Supreme Court in Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Limited & 2 others [2012] eKLR declared that jurisdiction flows from either the Constitution or Legislation or both. The County Wildlife Conservation and Compensation Committees are established under Section 18 of the Wildlife Conservation and Management Act therefore the committees have a statutory role under Section 25 (2) of the Act to receive compensation claims and to verity their veracity. In the circumstances where there is a claim for death or personal injury the committee passes its determination and recommendation to the Cabinet Ministry of Tourism and Wildlife, who pays compensation where appropriate.1ST RESPONDENT’S WRITTEN SUBMISSIONS TO AMENDED NOTICE OF MOTION DATED 9/12/2020.

22. It is submitted that in Halsburys Laws of England 4th Edition Vol. 1 pg 102, paragraph 80 states as follows:-“In so far as the orders are concerned with Jurisdictional Control Mandamus will be appropriate to compel a tribunal to exercise jurisdiction which it possess but declines to exercise prohibition will be appropriate to restrain a tribunal which assumes or threatens to assume a jurisdiction which it does not possess provided that the proceedings have not terminated and certiorari will be appropriate to quash the decision of a tribunal which has assumed a jurisdiction which it does not possess.”

23. It was further submitted that the Court of Appeal in Civil Appeal No. 180 of 2013 Isaack Osman Sheik –vs- IEBC & Others held that;“A judicial review of administrative judicial and quasi-judicial action and decisions of inferior bodies and tribunals by the High Court in exercise of its supervisory jurisdiction flowing from Article 165(6) of the Constitution is not in the nature of an appeal. It concerns itself with process and is not a merit review of the decision of those other bodies. And it does not confer on the High Court a power to arrogate to itself the decision – making power reserved elsewhere.”

24. It is further submitted that both the Director General KWS and the Ministerial Committee had no jurisdiction to issue any directions in regard to the Applicant’s claims for compensation.DETERMINATION

25. The Court has considered pleadings filed by parties through respective Counsel, the rival written submissions by learned Counsel. It is not disputed that the Exparte Applicant Tabitha Kanini Musau on 25th January, 2015 at her farm at Oldonyo Sabuk in Machakos County, she was violently attacked by two stray buffaloes from the Oldonyo Sabuk National Park. She was severely injured and admitted to the Immaculate Heart of Mary Hospital for 10 days. Thereafter, she visited local hospital for further treatment.

26. She applied for compensation, and duly filled Kenya Wildlife Services Compensation Claim Form, presented ID Card No xxxxxxx, Medical Examination Report (P3 Form), medical treatment notes and receipts with the claim.

27. On 12th December, 2019 she received the letter dated 7th October 2019, from Ministerial Wildlife Conservation Compensation Committee signed by Secretary MWCCC for Director -General that her claim for compensation was rejected because of inconsistencies in the various claim documentation.

28. By leave granted to file judicial review proceedings on 29th July 2020The Applicant filed the Judicial Review in the instant matter. It raises the following contested issues for determination;1. Whether the Judicial review pleadings were filed within the statutory period of 6 months.2. Whether KWS is a necessary party to the proceedings and if not be struck off3. Whether the proceedings/process culminating to the outcome of the Exparte Applicant’s claim were in tandem with the Constitution, Fair Administrative Action Act and Kenya Wildlife Act?4. What remedies should be granted?(1) Whether the Judicial review pleadings were filed within the statutory period of 6 months.

29. The Respondents took issue with compliance of mandatory timeline of 6 months for the Applicant with leave to file Judicial Review pleadings. In the instant case, the Applicant submitted that in 2020, the Country was under lockdown from March, 2020 due to Corvid 19 and Courts could not facilitate physical filing of documents. On 7th April 2020 as per the email annexed to pleadings, it was seeking to file the JR Application to Machakos High Court Registry, the Chamber Summons was assessed and filing fees paid and the Court Payment transaction Code is also annexed to confirm filing.

30. The impugned decision of Ministerial Wildlife Compensation Committee was issued on 7th October 2019 and the Applicant was informed of the decision and went to collect the letter on 19th December 2019. The Judicial Review was filed on 7/04/2020.

31. Therefore, Section 9 (3) of Law Reform Act was complied with, that the judicial review application was filed within 6 months of the impugned decision; from October 2019 - April 2020, the 6 month period was within the statutory timelines.(2) Whether KWS is a necessary party to the proceedings and if not be struck off.

32. The 1st Respondent, Kenya Wildlife Service, contests inclusion in these proceedings as there is no disclosed cause of action against it and it is not a necessary party. The prayer for certiorari sought is to quash the decision of Ministerial Wildlife Conservation Compensation Committee and not KWS or Director -General. Secondly, Sections 18 & 25 of Wildlife Conservation and Management Act 2013, stipulates that the Constitution of the relevant Committee and role of each constituent body or office in decision-making/adjudication process of compensations claim. The 1st Defendant deposed that it is the 2nd Respondent, Cabinet secretary Ministry of Tourism & Wildlife who determines disputes or deals with matters regarding compensation.

33. The Ministerial Wildlife Conservation Compensation Committee that made the decision on 7th October 2019, is not the same as the County Wildlife Conservation Committee that Kenya Wildlife Service (KWS) which is legally mandated to set up with respect to each County under Section 7 of Wildlife Conservation & Management Act 2013 and to determine compensation disputes. The actions/omissions of Ministerial Conservation Committee are therefore beyond control of KWS and therefore KWS is not liable.

34. The Applicant opposed the 1st Respondent’s assertion that it is party to these proceedings on the following grounds;The 1st Respondent Kenya Wildlife Service is established under Section 6 of Wildlife Conservation & Management Act, 2013. Section 7 of the same Act prescribes the 1st Defendant’s role and statutory duties particularly, to advise the Cabinet Department on matters pertaining to Wildlife Policy, Strategy and Legislation among others. Section 25 of the Act 1st Defendant was/is to set up the County Wildlife Conservation & compensation Committee to verify the claims for compensation and upon verification submit to the Cabinet Secretary.

35. This Court is persuaded by the following concerns /grounds;The 1st Respondent has specific role and duties with regard to facilitating the verification of compensation claims as provided by Sections 7(c) 7 (m), 18, 19 & 25 of the Wildlife Conservation & Management Act 2013. Since Judicial Review’s import is to scrutinize the process of decision-making or dispute resolution is in tandem with the Constitution and Subsidiary Legislation, the 1st Respondent is a necessary party in the determination of these issue(s).

36. Secondly, the letter of 7th October 2019 that contains the impugned decision is referenced KWS/3005 and signed by Secretary MWCCC for Director General who must be of KWS, Director General of 1st Respondent.

37. Thirdly, the Claim Form filled by the Applicant, is on KWS letterheads, whereas the Applicant’s claim was approved by Wildlife Conservation& Compensation Committee (CWCCC) and approved for payment at Ksh 37,500/-in 2017 and stamped Chairman CWCCC- Machakos, thereafter remarks by Director-General Kenya Wildlife Service are that the claim is rejected due to inconsistency of date of incident on Claim Form, P3 Form & Police OB signed on 22/5/2019 by Director- General.Remarks by Cabinet Secretary is indicated as ‘Rejected’All these factors and critical role of KWS necessitate that the 1st Respondent remains a party to these proceedings so as to effectually and completely settle the question(s) in the action- See Amon vs Raphael Tuck & Sons Ltd (1956) 1 All E R 273. (3) Whether the proceedings/process culminating to the outcome of the Exparte Applicant’s claim were in tandem with the Constitution, Fair Administrative Action Act and Kenya Wildlife Conservation & Management Act?(4) What remedies should be granted?

38. The Exparte Applicant submitted through learned Counsel, she is aggrieved by the decision housed in letter of 7th October 2019 because; She was not issued with any information on the alleged inconsistencies cited in the decisions by the aforesaid Ministerial Wildlife Conservation Compensation Committee.

She was not/never summoned by either the 1st or 2nd Respondents or the said Ministerial Wildlife Conservation Compensation Committee to clarify any issues, inconsistencies, and or discrepancies arising from her claim or documentation,

She was not issued with the Final Report made to the Cabinet Secretary or the Ministerial Wildlife Conservation Committee.

39. The Respondents rejected the Ex-parte Applicant’s claim prematurely, denied her a chance to be heard contrary to the Constitution}}, the Fair Administrative Actions Act and the Rules of Natural Justice. The Ministerial Wildlife Conservation Committee failed to give the grounds on which their decision was based contrary to the Fair Administrative Actions and the Rules of Natural Justice.

40. The process adopted by the above Ministerial Committee in determining the Ex-parte Applicant’s claim for compensation does not conform to the rules of natural justice, and the national values espoused under Article 10 of the Constitution.

41. In Council of Mombasa vs. Republic & Umoja Consultants LtdCivil Appeal No. 185 of 2001, the Court of Appeal held;“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision…It is the duty of the decision maker to comply with the law in coming to its decision, and common sense and fairness demands that once the decision is made, it is his duty to bring it to the attention of those affected by it more so where the decision maker is not a limited liability company created for commercial purposes but it a statutory body which can only do what is authorised by the statute creating it and in the manner authorised by statute.”

42. In Pastoli –vs- Kabale District Local Government Council and Others [2008] 2 EA 380where the court cited with approval the cases of Council of Civil Unions –vs- Minister for the Civil Service [1985] AC Z and an application by Bukoba Gymkhana Club [1983] EA 478and held:“In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety... Illegality is when the decision making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of a law or its principles are instances of illegality. It is, for example illegality, where a Chief Administrative Officer of a District interdicts a public servant on the directions of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission.....Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural justice or to act with procedural fairness towards one to be affected by the decisions. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative investment by which such authority exercises jurisdiction to make a decision.”

43. The Appellant’s decision-making process culminating to the decision contained in the letter of 7th October 2019 was contrary to Articles 10, 47, 48 & 50 of CoK 2010. The Letter of 7th October 2019 reads in part;The Ministerial Wildlife Conservation Compensation Committee (MWCCC) ………the claim was rejected due to inconsistencies in the date of the incident indicated in various claim documentation.

44. Section 18 & 25 of the Wildlife and Conservation & Management Act 2013 provide for the constitution of the County Conservation Compensation Committee to verify the Compensation Claims and make proposals. In this instant the Section 19 of Wildlife and Conservation & Management Act 2013 provide as follows;The functions of the Community Wildlife Conservation Committees shall be to—review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife;Section 25 Wildlife and Conservation & Management Act 2013 Provides;The County Wildlife Conservation and Compensation Committee established under section 18 shall verify a claim made under subsection (1) and upon verification, submit the claim to the Cabinet Secretary together with its recommendations thereon.

45. Therefore, there is/was no other legal entity mandated by law as the Ministerial Wildlife Conservation Compensation Committee (MWCCC) to carry out verification of compensatory claims.

46. Except the one prescribed in Section 25 of wildlife Conservation Management Act.

47. Secondly, the Director -General under the Act has no legal duty in the verification, processing and approving or refuting the compensation claims except as titular head of the 1st Respondent KWS under Section 7(g) of the Act to advise the Cabinet Department on matters pertaining to wildlife policy, strategy and legislation. It therefore follows; that the decision contained in the Letter of 7th October 2019 was reached by an unlawful body unknown to law called Ministerial Wildlife Compensation Committee. The said Committee and the Director-General lacked jurisdiction as the Act allows only the County/Community Wildlife Conservation Compensation Committee constituted by the 1st Defendant KWS to conduct the verification of compensation claims exercise.

48. Thirdly, in the KWS Wildlife Claim Form contains following details;a.Place of Residence of the Applicantb.Occupationc.Particulars of Death/Injuryd.Animal Responsible for permanent injurye.Medical Officer of Health Comment(s)f.Comments by KWS Wardeng.Wildlife Conservation Compensation Committee

49. All these parts were duly filled in by the relevant Officers who confirmed the Applicant was attacked by buffaloes while in her shamba, she was injured and sought medical treatment. The Wildlife Conservation & Compensation Committee CWCCC; approved the Exparte Applicant’s claim for payment at Ksh 37,500/-in 2017 and stamped Chairman CWCCC- Machakos.

50. The Remarks by Director-General Kenya Wildlife Service who legally had no role in the said process as per the Act indicated on the KWS Form that the claim is rejected due to inconsistency of date of incident on Claim form, P3 Form& Police OB signed on 22/5/2019 by Director- General.

51. Thereafter, Remarks by Cabinet Secretary are indicated as ‘Rejected’.

52. If the legally mandated body CWCCC-Machakos verified the Applicant’s claim and approved compensation, on what legal basis did the Director General intervene?

53. From the above outlined sequence of events in the said exercise this Court finds the decision-making process tainted by illegality; the decision made by the legally instituted body CWCCC was overturned by unknown body called Ministerial Wildlife Compensation Committee which acted without jurisdiction or ultra vires or contrary to the provisions of law or its principles.Article 50 CoK 2010 provides;1. Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body

54. The Exparte Applicant was legally entitled to appear before the relevant legal Committee to explain, clarify or substantiate the claim lodged with the Committee before final decision was reached. The Rules of natural justice prescribe that no one should be condemned unheard. The Applicant had the right/opportunity to present its case or respond to any enquiry and to explain or clarify any issue before the relevant Committee before the decision was made.

55. Article 47 CoK prescribes;(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

56. The Exparte Applicant placed for consideration with her claim the following documents;a.Claim for Compensation Formb.Copy Of ID Cardc.Medical Examination Form (P3 Form)d.Letter of 6th July 2017 from the Chiefe.Letter of 6th July from the Assistant Chieff.Treatment notes from Immaculate Heart of Mary hospital-Kilimambogo, Kianzabe Healthcare Thika, Thika Level 5 Hospital, NHIF and Receipts of medical services and purchase of medicine.

57. All these documents were filled in at different times by different persons in different places on diverse dates but in relation to the complained incident subject of the claim for compensation. The relevant Committee ought to have given the Applicant an opportunity to explain the anomaly or discrepancy before final decision was reached. The Applicant was deprived of fair hearing and condemned unheard. The decision-making process was/is irrational due to unreasonableness due to the unfairness occasioned by failure to observe natural justice and to act with procedural fairness towards the Applicant who was affected by the decision.

58. The totality of the evidence on record discloses that the decision- making process did not adhere to the mandatory standards outlined in the Constitution and legislation as outlined above and there resulted in illegality, irrationality and without procedural propriety.More importantly, the mandated Committee approved the claim and proposed payment yet an unknown Ministerial Wildlife Compensation Committee rejected the claim without giving the Applicant a fair hearing, notice to appear, present any other documents and/or adduced oral evidence or clarify any issue (s).

59. Section 9(1) Fair Administration Act provides that the High Court or Subordinate Court shall where remedies are provided under the law then the remedies should be exhausted first.

60. Section 25 of the Wildlife and Conservation and Management Act 2013 provides that the decision by the Committee constituted under section 18 of the Act, an aggrieved party may appeal to the Environment & Land Court. In this case the Committee approved the Applicant’s claim but a Ministerial Wildlife Compensation Committee declined and refused the Applicant’s claim without a hearing. The remedy under Section 25 of the Act is therefore is not available to the Applicant. The remedy that commends itself to the matter at hand is Order of Certiorari and the decision of the Ministerial Wildlife Compensation Committee as contained in the letter of 7th October 2019 is vacated forthwith.

61. Parties shall revert to status quo ante and begin the decision-making process on/to the Exparte Applicant’s claim through the legally mandated Committee and bodies in compliance with the standard process prescribed by the Constitution 2010 and relevant legislation.

62. The Costs follow the event, the application for Judicial Review is allowed with costs.

DELIVERED SIGNED & DATED IN OPEN COURT ON 7THFEBRUARY 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF:MR. MUGO - FOR THE APPLICANTMR. MULEKYO - FOR THE 1**ST RESPONDENTMR. MUTUA FOR THE 2ND RESPONDENTNO APPEARANCE - FOR THE 4TH*RESPONDENTGEOFFREY- COURT ASSISTANT