https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12957

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **JUDICIAL REVIEW MISC. APPLICATION No. E015 OF 2025** **REPUBLIC…………………………........……………..…………..APPLICANT** **VERSUS** **KENYA WILDLIFE SERVICE ..............................................1ST RESPONDENT** **COUNTY WILDLIFE CONSERVATION &** **COMPENSATION COMMITTEE MERU............................2ND RESPONDENT** **AND** **IBRAHIM HUSSEIN ABDI ....................................... EX-PARTE APPLICANT** **JUDGMENT** 1. Coming up for determination is the Notice of Motion dated 2nd September 2025 in which the ex-parte applicant seeks the following orders: 2. That the Honorable Court be pleased to grant an Order of judicial Review by way of Mandamus compelling the Respondents and specifically the 1st Respondent through the 2nd Respondent (CMCC) to deliberate upon the Ex-Parte's claim lodged on 3rd September 2022 within the next 30 days pursuant to Regulation 27 (1) (2) of the Wildlife Conservation and Management Compensation Regulations 2017. 3. That the 1st Respondent do report to this Honorable Court it's decision and/or deliberation under Prayer (1) above on or before the Expiry of 30 days from the date of issuance of this Order. 4. Costs of and incidental to the application be provided for; Such further and other reliefs that this Honourable Court may deem just and expedient to grant 5. The application is supported by the affidavit sworn by the ex-parte applicant on even date. He avers that leave has been obtained to file the application. 6. It is the ex-parte applicant’s case that on 9th February 2022, a rogue buffalo attacked him as he was taking his livestock to the river. That as a result, he sustained injuries. That he reported the incident to the 1st respondent’s office and he filled the requisite claim form attaching the necessary documentation. 7. The ex-parte applicant avers that he has made follow up visits but the 1st respondent has neglected, failed, refused or ignored to finalize the compensation process, by compelling the 2nd respondent to deliberate, verify and recommend compensation amount of Ksh, 2,000,000/-. That he thus seeks the orders sought. 8. The 1st respondent opposed the application vide a replying affidavit sworn by Daniel Kosgey, the County Warden, Isiolo County. 9. It is averred that -the claim lodged by the ex parte Applicant before the 2nd Respondent has since been deliberated and an award of Kshs. 500,000/- recommended. That in view of the foregoing, the application is moot and has been overtaken by events. 10. The 2nd and 3rd respondents opposed the application through ground of opposition dated 31st October 2025. The following grounds have been set out: 11. That the application has not met the threshold for the grant of the orders sought. 12. That the application is misdirected since the 2nd and 3rd 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. 13. That 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 2nd and 3rd respondents have not refused and/or delayed in complying with the law in the instant matter. 14. That 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. 15. That the 2nd and 3rd respondents have not abdicated their statutory roles as alleged by the applicant and no evidence has been adduced to support those wild allegations. 16. That this application is misadvised as it seeks to circumvent the prescribed legal and administrative mechanisms expressly established by the law to handle allegations of crop damage by wildlife and the resultant compensation if the claim is proved as required by the law. 17. That the application is misconceived and full of untrue allegations which are not supported by any evidence and therefore should be dismissed forthwith. 18. Parties filed their respective submissions, which I shall not rehash, but will refer to them where necessary. 19. Having considered the application, the responses thereto and the parties’ submissions, I find that the following issues arise for determination: 20. The nature of an order of mandamus, 21. Whether the application is properly directed at the 1st respondent. 22. Whether the application offends the determine of ripeness, 23. Whether the ex-parte applicant is entitled to the orders sought. 24. An order of mandamus is a writ issued by this court to compel the performance of a statutory duty owed to an applicant. In the case of **Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No. 266 of 1996 the** purpose and scope of an order of mandamus was described as follows: **“The next issue we must deal with is this: 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.”** 1. The order of mandamus is issued pursuant to the provisions of Article 165(6) which states as follows: **The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.** 1. The Fair Administrative Action Act at section 11 provides as follows: **Orders in proceedings for judicial review** **(1) In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order–** **….** **(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;** 1. Section 106 (2) of the Wildlife Conservation and Management Act provides as follows: **Any person who has reason to believe that the provisions of this Act have been, are being, or are about to be violated, may petition the High Court for—** 1. **a declaration that the provisions of this Act are being, have been, or are about to be contravened;** 2. **an injunction restraining any specified person from carrying out the contravention;** **(c)the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act; or any remedy at law or equity for preventing or enforcing the provisions of this Act.** 1. From the foregoing, provisions of the law, it is abundantly clear that this court has the requisite jurisdiction, where appropriate, to issue a writ of mandamus compelling any person or body to undertake an act that it is by law required to so undertake. 2. For the court to issue an order of mandamus, it has to be satisfied that the person to whom the writ is directed has a statutory duty to undertake certain action and has failed or neglected to undertake such action 3. From the application as drawn, the order sought is directed at respondents and specifically the 1st respondent. 4. Does the 1st respondent bear a duty to compensate the ex parte applicant? 5. Section 25 of the Wildlife Conservation and Management Act provides as follows in regards to claims thereunder; **(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 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 million shillings;** **(c)in the case of any other injury, a maximum of two million shillings depending on the extent of injury.** 1. From my reading of the said section, it clear that the 1st respondent bears no duty to compensate the ex parte applicant. That duty lies with the 2nd respondent and the Cabinet Secretary concerned, or his delegated officer. 2. The 1st respondent’s role is that of secretary to the Committee, which is established under section 18 of the Act. 3. The 1st respondent’s case is that the claim has been deliberated on and an award of Ksh.500,000/= made by the 2nd respondent. 4. I therefore agree with the 1st respondent that it is the 2nd respondent which has the mandate to assess the claim and recommend payment. This has already happened, meaning that it is the 3rd respondent or the Cabinet Secretary, which now has a mandate to make any payment, as set out under the Act. 5. This court’s power is thus to compel the 2nd respondent to submit the recommendation to the Cabinet Secretary or the 3rd respondent, who are also to be compelled to make payment. 6. Therefore, after considering the application, I grant the following orders: - 7. ***Orders of mandamus against the 2nd respondent submit the recommendation to the Cabinet Secretary or the 3rd Respondent within the next 45 days.*** 8. ***Orders of mandamus against the 3rd respondent to pay the ex parte applicant Ksh.500, 000/= assessed by the 2nd respondent.*** 9. ***Costs to the ex parte applicant, to be borne by the 2nd and 3rd respondents.*** **Dated, Signed & Delivered at Meru this 5th day of August 2026.** **H.M. NYAGA** **JUDGE**