Republic v Kenya Wildlife Service; Luwakutuk (Suing as the Administrator and Legal Representative of the Estate of Lkaneti Lowakutuk - Deceased) (Ex parte Applicant) (Judicial Review Miscellaneous Application E001 of 2026) [2026] KEHC 11283 (KLR) (23 July 2026) (Ruling)

Republic v Kenya Wildlife Service; Luwakutuk (Suing as the Administrator and Legal Representative of the Estate of Lkaneti Lowakutuk - Deceased) (Ex parte Applicant) (Judicial Review Miscellaneous Application E001 of 2026) [2026] KEHC 11283 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11283 (KLR) Republic of Kenya In the High Court at Marsabit Judicial Review Miscellaneous Application E001 of 2026 FR Olel, J July 23, 2026 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (ORDER 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 and Kenya Wildlife Service Respondent and Lbeneka Luwakutuk (Suing as the Administrator and Legal Representative of the Estate of Lkaneti Lowakutuk - Deceased) Ex parte Applicant Ruling A. Introduction 1.Before court for determination is the substantive judicial review notice of motion Application dated 13thFebruary 2026 brought under provisions of, Section 8 & 9 of the Law Reform Act, Cap 26, Order 53 Rule 3(1) of the Civil Procedure Rules and all other enabling provisions of law. The Ex parte Applicant seeks for orders that;a.An order of Mandamus be issued to compel the Respondent to pay the Exparte Applicant the sum of Kshs 5,000,000/= to the Applicants advocate.b.That costs and further incidentals to the Application be provided for by the respondentsc.Such further and other reliefs that this Honourable court may deem just and expedient to grant. 2.This application is supported by the grounds advanced on the face of the said Application, the statutory statement, and the verifying Affidavit of the Applicant, Lbeneka Lowakutuk dated 4 February 2026. The respondent opposed this Application through the Replying Affidavit dated 7 April 2026 sworn by their legal office, one Mr. Gideon Mutai. B. The Motion And Response 3.The Ex parte Applicant averred that he was the legal representative of the estate of the late Lkaneti Lowakutuk, who was unfortunately attacked by a poisonous flying snake on 8th February 2015 while herding cattle along the Ngare Narok river, thereby occasioning him fatal injuries. The incident was reported at Wamba Police Station under OB No. 10/16/2/2015 and at the local chief’s office. Officers from the Respondent subsequently visited the family and, after due process, the Community Wildlife Conservation Committee (CWCC) convened and recommended compensation. The matter was escalated to the Ministerial Wildlife Compensation Committee (MWCC), which approved an award of Kshs.5,000,000/= in 2017. 4.Despite persistent follow‑ups over the last ten years, the Respondent had failed to process and settle the said award, leaving the deceased family in distraught and without compensation. The Applicant contends that this conduct is contrary to the guiding principles of fair administrative action and that unless the court intervenes by issuing an order of mandamus, the family would continue to suffer injustice. He therefore urged the court to grant the orders sought. 5.In response, the Respondent’s through its legal officer averred that the application was fatally defective and bad in law, having been brought prematurely before the court without exhaustion of the mechanisms provided under Section 25 of the Wildlife Conservation and Management Act, 2013. It was contended that the application seeks to compel the Respondent to undertake duties outside its statutory mandate, which responsibility laid on the door steps of the Cabinet Secretary, Ministry of Tourism and Wildlife, acting through the MWCC, and not with the Respondent herein. 6.It was further argued that the Cabinet Secretary had the final authority to either approved or rejected the claim, the claimant would be duly notified, after which they may either seek judicial review or appeal to the National Environment Tribunal (NET). The Respondent thus urged the court to find that the instant application was premature, unmerited, and an abuse of the court process, and to dismiss it with costs. C. Parties Submissions i. Ex parte applicant’s submissions 7.The Ex Parte Applicant filed submissions dated 27th April 2026, where they reiterated the facts pleaded and stated that under Sections 6 and 7 of the Wildlife Conservation and Management Act, 2013, the Respondent were charged with the duty of conserving and managing national parks, wildlife conservation areas, and sanctuaries. Further, under Section 25 of the said Act, the Respondent, through the County Wildlife Conservation and Compensation Committee, was mandated to verify and assess claims for compensation and recommend appropriate payment in cases of injury or death occasioned by wildlife. 8.He further averred that his claim was duly verified and approved by the Ministerial Wildlife Compensation Committee to the tune of Kshs.5,000,000/= in 2017, yet the Respondent has failed to settle the award despite persistent follow‑ups for close to a decade. They submitted that this prolonged delay amounts to abdication of a statutory duty and undermines the principles of fair administrative action. Reliance was placed on Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR, Kenya Wildlife Service v Rift Valley Agricultural Contractors Ltd, Supreme Court Petition No. 11 of 2015 [2018] eKLR, and Joseph Boru Ngera v Kenya Wildlife Service [2014] eKLR, which affirmed the respondents duty to manage and conserve wildlife carries with it the responsibility to compensate for harm caused. Additional reference was made to Kenya Wildlife Service v Awuor (Civil Appeal E013 of 2022) [2023] KEHC 3721 (KLR), Dongol Eleman Kokoi v Kenya Wildlife Service & County Wildlife Compensation Committee, Lodwar HCJR No. E003 of 2024, and Salonik Murunya Parmuai v Kenya Wildlife Service & County Wildlife Compensation Committee, Narok HCJR/E002/2024, where similar applications were allowed and writs of mandamus issued. 9.The Ex Parte Applicant therefore urged the court to grant the orders sought. ii. Respondent’s submissions 10.The Respondent relied on their submissions dated 27th April 2026, reiterating the contents of their Replying Affidavit. They argued that the application was premature, as the Ex Parte Applicant had not exhausted the compensation mechanisms provided under Section 25 of the Wildlife Conservation and Management Act, 2013. They emphasized that the writs of mandamus could only issue to enforce a crystallized statutory duty, and in this case the claim was still undergoing verification and consideration. Reliance was placed on Commissioner of Lands & Others ex parte County Council of Bomet [2016] eKLR and Shah v Attorney General (No. 3) [1970] EA 543, where courts held that mandamus cannot compel payment of sums not yet determined. 11.They further submitted that under Section 25(2) and (3) of the Act and Regulation 27(2) of the Wildlife Conservation and Management (Compensation) Regulations, 2017, the duty to pay compensation lies with the Cabinet Secretary, Ministry of Tourism and Wildlife, and not with the Respondent. Reference was made to Republic v Kenya Vision 2030 Delivery Board & Another ex parte Eng. Judah Abekah [2015] eKLR, affirming that mandamus requires a clear statutory duty owed to the applicant. 12.They also urged that the doctrine of exhaustion under Section 9 of the Fair Administrative Action Act barred the application, since the Applicant had not pursued available statutory remedies before approaching the Court. Authorities cited included Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] eKLR, Peter Muturi Njuguna v Kenya Wildlife Service [2017] eKLR, and NGO Coordination Board v E.G. & 4 Others; Katiba Institute (Amicus) [2023] KESC 17 (KLR), all emphasizing the need to exhaust statutory mechanisms before invoking judicial review. 13.The Respondent therefore urged the Court to dismiss the application with costs. D. Determination 14.Having carefully considered the Application, the statutory statement, the verifying affidavit, and the replying affidavit filed in opposition thereto, together with the detailed submissions of the parties herein, I discern that the issues arising for determination are:a.Whether the order of Mandamus should be granted against the respondents.b.Who should bear the costs of this Application? 15.The Court in Republic vs Kenya National Examinations Council exparte Gathenji and 9 Others, [1997] e KLR had this to say with regards to Mandamus;“What is the scope and efficacy of an Order Of Mandamus? Once again, we turn to Halsbury’s Law Of England, 4th Edition Volume 1 at page 111 from paragraph 89. That learned treatise says:-“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.”At paragraph 90 headed “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….” 16.The conditions under which an order of mandamus may properly issue were also elaborated by Mativo J. in Republic v Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR, where the Court outlined as follows:“Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General),and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration) . The eight factors that must be present for the writ to issue are:-(i)There must be a public legal duty to act;(ii)The duty must be owed to the Applicants;(iii)There must be a clear right to the performance of that duty, meaning that:a.The Applicants have satisfied all conditions precedent; andb.There must have been:i.A prior demand for performance;ii.A reasonable time to comply with the demand, unless there was outright refusal; andiii.An express refusal, or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the Applicants;v.The Order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convivence, if an order of Mandamus should lie. 17.These conditions were further expounded in Republic v Chief Officer of Finance Machakos County; Bernard Nzivo Waita (Ex Parte) [2020] KEHC 8707, where the Court set out the circumstances that an applicant must establish in order to obtain a writ of mandamus, namely:a.A clear legal right and a corresponding duty in the Respondent.b.A specific act or thing which the law requires that particular officer to do has been omitted to be done by him.c.Lack of any alternative remedy.d.Whether the alternative remedy exists but is inconvenient, less beneficial or less effective or totally ineffective. 18.It is not in dispute that the Ex Parte Applicant is the duly appointed legal representative of the estate of the late Lkaneti Lowakutuk, who on 8th February 2015 was fatally attacked by a poisonous snake while herding cattle along the Ngare Narok river. The incident was reported at Wamba Police Station under OB No. 10/16/2/2015 and to the local chief. The claim was thereafter lodged with the Community Wildlife Conservation Committee (CWCC), which processed and forwarded it to the Ministerial Wildlife Compensation Committee (MWCC). In 2017, the MWCC approved compensation in the sum of Kshs.5,000,000/=. Despite repeated follow‑ups over nearly a decade, the award remains unpaid, and the Applicant contends that he is entitled to the relief sought. 19.In response, the Respondent asserts that under Section 25(2) and (3) of the Wildlife Conservation and Management Act, 2013 and Part V, Rule 27(2) of the Wildlife Conservation and Management (Compensation) Regulations, 2017, the obligation to settle compensation lies with the Cabinet Secretary, Ministry of Tourism and Wildlife, and not with the Respondent. It was therefore argued that the judicial review orders of mandamus cannot issue against the Respondent, and the application ought to be dismissed. 20.As correctly advanced by the ExParte Applicant, the issue of responsibility for settling wildlife compensation claims has already been conclusively addressed by the superior courts. The Court of Appeal in Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR held 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 the breach of that duty. The law on that point was succulently pronounced in Joseph Boru Ngera Vs Kenya wildlife service Vs Rift valley Agricultural contractors limited (2024) eKLR amongst others is still good law on this point. The cabinet secretary referred to in the act pays the money on behalf of the appellant. Neither the court nor the parties should concern themselves with the internal arrangements of the appellants as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.” 21.In addition, the Supreme Court in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited, Petition No. 11 of 2015 [2018] eKLR 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 rational being that such revenue supports the costs of management and any related outcomes, including compensation for damages made by animals and wildlife……. The wildlife Act gives responsibility to Kenya wildlife service as the park revenue collector to compensate for damages occasioned by wild animals” 22.The jurisprudence cited above is binding upon this Court under the doctrine of stare decisis, and it conclusively determines the question of liability for settlement of wildlife compensation awards. The Respondent cannot sidestep its statutory obligation by shifting responsibility to the Cabinet Secretary, since the law and precedent place the duty squarely upon it. Disposition 23.In light of the Applicant’s compliance with all procedural requirements and the Respondent’s prolonged failure to act, I am persuaded that the relief sought is justified, and the order of mandamus must issue. 24.The Notice of Motion Application dated 13th February 2026 therefore has merit and the same is allowed in terms of prayer (a) and (b). 25.Stay of execution is granted for 60 days to enable the respondents to process the same. READ, SIGNED, AND DELIVERED VIRTUALLY AT MARSABIT ON THIS 23RD DAY OF JULY, 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 23rd day of JULY 2026.In the presence of;………………………………….for Ex parte Applicant………………………………….for Respondent………………………………….Court Assistant