https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12423

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **HCJR NO. E006 OF 2026** **IN THE MATTER OF AN APPLICATION 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** **BETWEEN** **REPUBLIC…………….……………………………………….APPLICANT** **-VS-** **KENYA WILDLIFE SERVICE………………….……...RESPONDENT** **RAHEL DOKOTU BAJI & ABADURE HASHAKO ABASHORA** (Suing as the legalrepresentatives of the Estateof HIRIBAE HASHAKO-DECEASED**…………EX-PARTE APPLICANT** **JUDGMENT** 1.The Ex-parte Applicants herein filed a Notice of Motion dated 4th February 2026 under Sections 8 and 9 of the Law Reform At (Cap 26) and Order 53 Rule 3 of the Civil Procedure Rules seeking the following orders; 1. **An order of Mandamus be issued to compel the Respondent to pay the exparte applicants the sum of Kshs. 5,000,000.00 as compensation for the Fatal injuries suffered by the deceased after being attacked and injured by Wildlife.** 2. **The Respondent be and is hereby ordered to pay the said approved sum within fourteen (14) days from the date of service of the order of Mandamus.** 3. **Costs and further incidentals to this application be provided for.** 2. The claim was denied by the Respondent. **Case for the Ex-Parte applicants.** 3. The Ex-parte Applicants herein are the legal representatives and administrators of the estate Hiribae Hashako Abashora, the deceased. The 1st Ex-parte applicant asserted that on 8/1/2019 the deceased was attacked by a puff adder snake while in his farm occasioning him fatal injuries as a result of the Respondent’s negligence and breach of statutory duty. They reported the matter at Tarassaa Police Station and the Respondent’s officers went and took the details and promised to compensate them for the death of her son. 4. The applicants applied for compensation by filing the claim form provided by the Respondent. Thereafter, the Respondent convened a meeting of the Community Wildlife Conservation Committee (CWCC) to discuss the claim compensation. That on following up at the Kenya Wildlife office county offices, they were informed that the Ministerial Wildlife Compensation Committee approved the award of Kshs. 5,000,000/= on 21/11/2022. That the Exparte applicants are yet to receive the compensation. 5. It is the case for the Ex parte applicants that the Respondent continues to unjustifiably delay the compensation without any plausible explanation. They are apprehensive that unless the court intervenes and compels the Respondents to act on their decision and settle the claim, the Respondent will continue to ignore their demands for compensation. **Respondent’s case** 6. In response, the Respondent filed a replying affidavit sworn by its Principal legal officer, Derrick Karinga, on the 6th day of May, 2026 in which he asserts that it is not the Respondent’s mandate under Section 7 of the Wildlife Conservation and Management Act, 2013 to compensate the ex parte applicant. That it is the duty of the Tana River County Wildlife Conservation Committee under Section 18 of the Wildlife Conservation and Management Act, 2013 (herein referred to as WCMA or the ACT) to review and recommend payment on claims resulting from loss or damage caused by wildlife under Sections 19 (1) (a) and 25 (2) of the Act. 7. According to him, the Respondent is only the secretary to the County Wildlife Conservation Committee established under Section 18 of the Wildlife Conservation and Management Act, 2013. That the Exparte applicants reported the incident leading to the claim to the Respondent’s Tana River Station and was issued with claim compensation forms from the Ministry of Tourism and Wildlife which he filled and returned to the Respondent for processing. That Section 25 (3) of the Wildlife Conservation and Management Act places the role of payment of compensation on the cabinet Secretary, Ministry of Tourism and Wildlife. 8. It was deposed that the Committee awarded a sum of Kshs. 5,000,000/= as compensation. The Ex-parte Applicants provided bank details on 25th March, 2026 and the same sent to the Ministry of Tourism and Wildlife for processing of the payment. That it is not the Respondent’s duty to compensate the Applicant and the present application is urging the court to act beyond its powers which will amount to an illegality. 9. The matter was disposed of by way of written submissions of the respective counsels for the parties. **Ex parte applicants` submissions** 10. Counsel for the Ex Parte Applicants identified three issues for determination, to wit: whether the Respondent is statutorily bound to manage national parks and reserves; whether the Respondent is mandated to compensate the Ex parte Applicants and whether the Ex parte Applicants are entitled to the orders of mandamus. 11. On whether the Respondent is statutorily bound to manage national parks and reserves, counsel relied on Sections 6 and 7 of the Wildlife Conservation and Management Act, 2013 where under Section 7 of the Act, the Respondent’s functions are; to conserve and manage national parks, wildlife conservation area including sanctuaries under its jurisdiction and to provide security for wildlife and visitors in national parks, wildlife conservation areas and sanctuaries. He contended that based on the said provision, the Respondent has a statutory mandate to control wildlife. 12. On the second issue of whether the Respondent is mandated to compensate the applicant, counsel submitted that the procedure for payment of damages is outlined under Section 25 of the Act. He further relied on the case of **Kenya Wildlife Service vs Joseph Musyoki Kalonzo (2017) eKLR** where the Court of Appeal stated as follows; **“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 *Joseph Boru Ngera & Another vs Kenya Wildlife Service & Rift Valley Agricultural Contractors Limited (2014) 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.”** 13. Counsel also relied on the Supreme Court decision in **Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No. 11 of 2015 (2018) eKLR** where the court held 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 revenue 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.’** 14. It was his submission that the 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. 15. On the issue of whether the Ex Parte Applicant is entitled to the order of mandamus, counsel submitted that the Wildlife Conservation and Management Committee had recommended for compensation in the sum of Kshs. 5,000,000/=pursuant to Section 25 of the Act which amount the Respondent failed to pay thereby necessitating the present application for orders of mandamus. That having established the Respondent’s duty to manage and conserve wildlife, the Respondent ought to shoulder any claim of loss or damage caused by the breach of that duty. Counsel relied on the cases of **Kenya Wildlife Service vs Awuor (Civil Appeal E013 of 2022) (2023) KEHC 3721 (KLR) (26 April 2023)** and **Kenya Wildlife Service vs Abraham M’ngai M’itumitu (2021) eKLR** where the courts held**;** **“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 provisions 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.”** **Respondent’s Submissions** 16. Counsel for the Respondent on the other hand submitted that the County Wildlife Compensation Committee upon reviewing and considering the claim as required under Section 19 (1) of the Wildlife Conservation and Management Act, 2013 made a recommendation to the Cabinet Secretary, Ministry of Tourism and Wildlife under Section 25 (2) of the WCMA for compensation of the Ex parte Applicant in the amount of Kshs. 5,000,000/=. 17. Counsel identified two issues for determination; whether the Respondent is a proper party in these proceedings and if so, whether the orders sought against them are available to the Ex parte Applicants and secondly whether the Respondent holds an account holding funds defrayed for the purpose of payment of compensation. 18. On the first issue, counsel submitted that the Respondent is improperly joined in these proceedings and the reliefs sought against them cannot be granted. He submitted that it is the duty of the Ministerial Wildlife Compensation Committee to settle the compensation amount recommended by the County Wildlife Compensation Committee. He relied on the case of **Republic v County Government of Nairobi & 2others Ex-Parte Kingpost Limited (2021) eKLR** the court stated: **“In determining these issues, it is crucial to first lay down the principles that guide the Court when dealing with the Judicial review remedy of mandamus, which the Ex-parte Applicant is seeking. The Court of Appeal in Commission on Administrative Justice vs Kenya Vision 2030 Delivery Board & 2 others (2019) eKLR stated as follows:** **“As observed by the Judge and correctly so in our view, the principle that guides the High Court when dealing with the scope and efficacy of an order of mandamus was crystalized by the Court in Kenya National Examination Council v Republic Ex-Parte Geoffrey Gathenji Njoroge & 9 others namely:** **“The order of mandamus is of most extensive remedial nature and is in the form of 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 of 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 it may issue in cases where although there is an alternative remedy, yet the mode of redress is not convenient, beneficial and effectual,”** 19. Counsel submitted that an order of mandamus cannot issue to compel the Respondent to perform a statutory duty owed to the Applicant by another institution totally different from the Respondent. He also submitted that the Respondent is not duty bound to compensate or pay compensation on claims resulting from loss or damage caused by wildlife. That the Respondent is improperly joined in these proceedings and the duty in question in these proceedings is the duty to compensate for losses and damage caused by wildlife and not the duty to manage wildlife. 20. On whether the Respondent holds an account holding funds for the purpose of payment of compensation, counsel submitted that Section 7 of the WMCA provides for the functions of the Respondent which revolves around wildlife conservation. Further, that Section 24 of the WCMA provides that any money sought by the applicant can only be recovered from the Wildlife Compensation Fund. That payment of compensation claims is the preserve of the government through the Ministry of Tourism and wildlife and as such, the Respondent has no statutory duty to compensate for claims for loss and damage caused by wildlife. **Analysis and determination** 21. The Ex-Parte applicants contend that the Respondent is mandated to compensate the applicants following the death of their kin after an attack by a puff adder snake while in his farm which attack was as a result of the Respondent’s negligence and breach of statutory duty. 22. The Respondent on the other hand contends that the Wildlife Conservation and Management Committee awarded a sum of Kshs. 5,000,000/= as compensation. That the Ex-parte Applicants provided bank details on 25th March, 2026 and the same sent to the Ministry of Tourism and Wildlife for processing of the payment. Therefore, that they are improperly enjoined in these proceedings and that the reliefs sought against them cannot issue. 23. The issues for determination are therefore: 1. **Whether the Respondent is a necessary party in the case.** 2. **Whether it is the mandate of the Respondent to pay human-wildlife compensation claims, and if so** 3. **Whether the orders sought should issue.** **Whether the Respondent is a necessary party in the case.** 24. The WCMA gives the Respondent the mandate to receive compensation forms from claimants and forward them to the County Wildlife Compensation Committee. After the Committee has dealt with the matter and a decision is made, the same is communicated to the claimant by the Respondent. The official of the Respondent is the secretary of the County Wildlife and Compensation Committees. More so it is the duty of the Respondent to manage wildlife and national parks. All these duties make the Respondent a necessary party in the case. In my view, the Respondent is therefore a necessary party in the suit. **Whether it is the mandate of the Respondent to pay human-wildlife compensation claims** 25. It is not in dispute that the Applicants indeed invoked the statutory mechanism of reporting the incident, filling compensation forms and submitting supporting documents. The Respondent has also acknowledged that in fact the Wildlife Conservation and Management Committee awarded a sum of Ksh. 5,000,000/= as compensation. 26. In clearing any doubt as to who is supposed to pay compensation, the Court of Appeal in the case of **Kenya Wildlife Services -vs- Joseph Musyoki Kalonzo (2017) e KLR** stated as follows; **“The Appellant admits duty to manage and conserve wildlife. The duty comes with attendant responsibility to shoulder any claims of loss or damage caused by breach of that duty…the Cabinet Secretary referred to in the Act pays the money on behalf of the appellant (KWS). 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. If there is any conflict of responsibilities or performance of duty between the two, that is upon the two to sort out but should not be used to deny a party compensation duly owed to it.**” 27. Similar position was held in the case of **Republic vs Kenya Wildlife Service & 3 Others (Judicial review E006 of 2004) (2025) KEHC 14189(KLR) (3 October 2025) (Ruling)** where the court stated that; **“Secondly; the 1st Respondent’s contention that the statutory obligation to settle the exparte Applicant’s claim lay with the cabinet secretary for Tourism and Wildlife also holds no water, and is an issue which has been settled by the court of appeal in Kenya WildLife Service vs Joseph Musyoka Kalonzo (2017) eKLR.** 28. 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.** 29. More so, the Supreme Court in **Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Limited** (supra), a judgment delivered in 2018, categorically stated that the Respondent herein is the body liable to pay for human-wildlife claims.The issue is thereby settled. 30. In view of the foregoing, it is my finding that the duty to compensate for claims arising from human-wildlife conflicts falls on the Respondent. **Whether the orders sought should issue** 31. 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.** 32. 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.** 33. The procedure for compensation in human-wildlife conflict claims is set out under the WCMA. The Applicants invoked the statutory mechanism of reporting the incident, filling compensation forms and submitting supporting documents. The Respondent has also acknowledged that in fact the Wildlife Conservation and Management Committee awarded a sum of Ksh.5,000,000/= as compensation. 34. The compensation in question was awarded on 21/11/2022. The delay in payment of the same has not been explained by the Respondent. I am of the view that an order of mandamus is the most appropriate remedy in this matter and the same should issue to compel the Respondent to pay the claim. 35. In view of the foregoing the prayers sought in the Notice of Motion date 4th February 2026 are granted in the following terms: 1. **An order of mandamus be and is hereby issued to compel the Respondent to pay the Ex parte Applicants herein the sum of Ksh.5,000,000/= for fatal injuries suffered by the deceased after being attacked and injured by wildlife.** 2. **The Respondent to pay the claim within 60 days from the date of delivery of this ruling.** 3. **The Ex parte applicants to have the costs of the suit.** Orders accordingly. **Delivered, dated and signed at GARSEN this 30th day of July 2026** **J. N. NJAGI** **JUDGE** **In the presence of:** **N/A for Ex parte Applicants** **Mr. Nyaga for Respondent**