https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9359

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **JURICAL REVIEW MISC APP NO. E002 OF 2026** **IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICAL 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** **VERSUS** **KENYA WILDLIFE SERVICE…………………………..……1st RESPONDENT** **CABINET SECRETRARY** **MINISTERY OF TOURISIM AND WILDLIFE…………….2nd RESPONDENT** **AND** **PAUL LONGOLE ESEKON & JULIUS LOPEIYOK ATURAI (Suing as the administrator and legal representative of the Estate of LOKWAWI ESEKON, Deceased) ………………………………..EX PARTE APPLICANT** **RULING** 1. **INTRODUCTION** 2. Before court for determination is the substantive judicial review notice of motion Application dated 23rd March 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 law. The Ex parte Applicant seeks for orders that; 3. ***An order of Mandamus be issued to compel the 1st and 2nd respondents to pay the Exparte Applicant the sum of Kshs 5,000,000/= to the Applicants advocate.*** 4. ***That costs and further incidentals to the Application be provided for by the respondents*** 5. ***Such further and other reliefs that this Honourable court may deem just and expedient to grant.*** 6. 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, ***Paul Longole Esekon*** dated 14th March 2026. The respondent did oppose this Application through the Replying Affidavit dated 19th May 2026 sworn by their legal office, ***Mr Gideon Mutai***. 7. **THE MOTION & RESPONSE** 8. The Ex parte Applicants averred that they are the legal representatives of the estate of the late **LOKWAWI ESEKON**, who was unfortunately attacked by an Elephant on 17th October 2023, while on his way home from their shopping center, thereby occasioning him to suffer fatal Injuries. They did report this incident at Kulamawe police station under OB.15/18/10/2023 and at the local chief’s office. The 1st respondent's officers subsequently did visit them and after due process, the community wildlife conservation compensation committee (MWCC) award them a sum of Kshs 5,000,000.00/= in July 2025. 9. Despite their constant reminder, the respondents had been reluctant and uncooperative in processing their claim, which was contrary to the guiding principles of fair administrative process, and they therefore had genuine apprehension that unless the court intervened on their behalf to issue the orders of mandamus, they were not likely to get any formal response and/or justice from the respondents. They thus urged the court to grant the orders sought. 10. In response, the 1st respondent's legal officer did aver that the said application was defective and bad in law as it seeks to compel them to undertake, that which was not within their mandate, and that the said application ought to be directed to the 2nd respondent, who had the responsibility to settle the applicants claim ***under section 25(3) of the wildlife conservation and Management Act***. Based on the forgoing, they urged the court to find that the application lacked merit and urged the court to dismiss the same. 11. **SUBMISSIONS** 12. **The Ex parte Applicant's Submissions** 13. The Ex parte Applicant filed submissions dated 15th May 2026 wherein they rehashed the facts pleaded and stated that under **Section 6 & 7 of the Wildlife conservations and Management Act No 47 of 2013**, the 1st respondent had the statutory obligation of managing the national parks, wildlife conservation areas and sanctuaries under its jurisdiction. Further under Section 25 of the aforestated Act, they were mandated, through the County Wildlife conservation and compensation committee to verify and assess a claim made for compensation under the said act and recommend appropriate payment for the injury suffered and/or death as the case maybe. Reliance was placed in the case of **Kenya Wildlife service Vs Joseph Musyoki Kalonzo (2017) Eklr & Kenya Wildlife service Vs Rift valley Agricultural Contractors Limited, Suprem court Petition No 11 of 2015 (2018) Eklr**, where it was held that the primary responsibility of settling wildlife claim remained with Kenya Wildlife service 14. Secondly, it was submitted that the respondents had not denied the fact that their claim and been verified and approved by the county wildlife conservation and compensation committee to the tune of Kshs 5,000,000/= in July 2025 and that the same had not been settled despite their persistent push for settlement of the same. They had thus established that the respondents had the statutory duty to settle the claim and had unjustifiably failed to do so. Reliance was placed in ***Kenya wildlife service Vs Awuor (Civil Appeal E013 of 2022),(2023) KEHC 3721(KLR), Dongol Eleman Kokoi Vs Kenya Wildlife service & County wildlife compensation committee, Turkana & 1 other (Lodwar JCJR NO E003 of 2024), & Salonik Murunya Parmuai Vs Kenya Wildlife service & County Wildlife compensation committee, Homabay & 1 other (Narok HCJR/E002/2024)*** 15. The respondents had been given ample time to comply and perform their statutory duty, but had failed to do so without any justification and therefore urged the court to grant the orders sought. 16. **The 1st Respondents Submissions.** 17. The 1st respondent relied on their submissions dated 19th May 2026, where they reiterated that they were not statutorily mandated to settle the claim under ***Section 25 of the Wildlife conservation and Management Act, 2013, read together with Part V, Rule 27(2) of the wildlife conservation and management (compensation) Regulations 2017***, which placed that obligation on the 2nd respondent. Reliance was placed in ***Republic Vs Kenya vision 2030 Delivery Board & Another, Ex parte Eng Judah Abekah (2015) Eklr***, where it was held that a party seeking judicial review orders of mandamus must show the existence of a statutory duty conferred or invested by statute upon some person or body of persons, which duty they had failed to perform. 18. The 1st respondent thus urged this court to find that there was no statutory duty conferred upon them and thus the orders sought could not issue against them. They thus urged the court to dismiss this application with costs. 19. **DETERMINATION** 20. I have carefully considered the Application, statutory statement, verifying Affidavit, and the replying affidavit filed in opposition to the said Application. I have also considered the detailed submissions filed by the parties and discern that the issue which arise for determination is whether 21. ***Whether the order of Mandamus should be granted against the respondents.*** 22. ***Who should bear the costs of this Application?*** 23. In **Republic vs Kenya National Examinations Council exparte Gathenji and 9 Others, [1997] e KLR.** The said Court held as follows in this regard: ***“ 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 requirements for an order of mandamus to issue were further explained by Mativo J. in **Republic vs Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & Another [2018] eKLR** 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; and*** ***b. There must have been:*** ***i. A prior demand for performance;*** ***ii. A reasonable time to comply with the demand, unless there was outright refusal; and*** ***iii. 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.*** 1. It is an uncontested fact that the applicants are the legal representative of the late ***LOKWAWI ESEKON***, who was trampled upon by an elephant, while on his way home and it fatally injured him. They did file their claim with the community wildlife conservation committee (CWCC), which made a recommendation in July 2025 that they be compensated to the tune of ***Kshs 5,000,000/=***. The said amount remains unpaid despite constant reminder and thus the applicants did contend that they were entitled to the orders sought. 2. In response the 1st respondent states that ***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***, places the responsibility of compensation on the Cabinet Secretary, Ministry of Tourism and Wildlife (the 2nd respondent) and thus the judicial review orders of mandamus could not issue against them. 3. As rightly pointed out by the Ex’parte Applicant, the question as to who between the two respondents should settle the claim, has been exhaustively been determined by the superior courts. The court of Appeal in ***Kenya wildlife Service Vs Joseph Musyoki Kalonzo (2017) eKLR*** discuss this issue and 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.”*** 1. Further, the supreme court in ***Kenya Wildlife service Vs Rift Valley Agricultural Contractors Limited, Supreme court Petition No 11 of 2015 (2018) eKLR***, also 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 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.*** 1. The above cited decisions are binding on this court, under the principal of stare decisis, and thus conclusively settles the question of who is responsible to settle the outstanding sum claimed. In other words, the 1st respondent cannot run away from its statutory duty to settle the compensation awarded and I therefore do hold that the orders sought are merited. 2. **DISPOSITION**. 3. The Notice of Motion Application dated 23rd March 2026, therefore has merit and the same is allowed in terms of prayer (a) and (b). 4. 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 30th day of **JUNE,** 2026. **FRANCIS RAYOLA OLEL** **JUDGE** **Delivered** on the **virtual platform, Teams** this **30th** day of **JUNE 2026.** **In the presence of;** ………………………………….for Ex parte Applicant ………………………………….for Respondent ………………………………….Court Assistant