https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7332

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARISSA** **MISC. JUDICIAL REVIEW APPLICATION NO. E001 OF 2026** **IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF *MANDAMUS*** **AND** **IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT, NO. 47 OF 2013 LAWS OF KENYA** **BETWEEN** **REPUBLIC…………………………………………………………...……….APPLICANT** **VERSUS** **THE KENYA WILDLIFE SERVICE ………………..………..…..……..1ST RESPONDENT** **CABINET SECRETARY,** **MINISTRY OF TOURISM AND WILDLIFE.……………………….2ND RESPONDENT** **AND** **DAMA KAHINDI NDISO** **(Suing as the Legal Representative and Administrator of** **the Estate of Kadzo Kombe Nzai)………………………………*EX PARTE* APPLICANT** **RULING** 1. The ex parte applicant herein, instituted these judicial review proceedings by way of a Notice of Motion dated 18-2-2026 seeking *mandamus* orders compelling the respondents to pay the *ex parte* applicant a sum of 5 Million through his advocate, costs of the suit and any other relief. 2. The application is anchored on grounds stated on the face of it and further amplified by the averments contained in the verifying affidavit in support sworn by the *ex parte* applicant on 11-2-2026. It was averred that on the 28-9-2020, the deceased was viciously attacked by a hippopotamus while at her shamba along Galana River consequences whereof she died on 20-3-2021. He averred that the injuries were caused as a result of the 1st respondent’s negligence and breach of statutory duty as governed by the **Wildlife Conservation and Management Act No. 47 of 2013**. 3. That a report was made to the police and consequently to the first respondent who promised to compensate but in vain. Consequently, a claim for compensation was made as provided for under the **Act** leading to the 2nd respondent convening a meeting of the Community Wildlife Conservation Committee to deliberate on the compensation claim and make recommendation to the Ministerial Wildlife Compensation Committee that validates and further approves the awards made by the Community Wildlife Conservation Committee. 4. That the Committee approved a sum of 5M as compensation on 22.11.2022. That 60 days have since lapsed without the said claim and subsequent award being honoured hence the instant suit. That every effort made to seek the said payment has not been honoured. During the hearing, the applicant basically sought to rely on the particulars on the face of the application and the affidavit in support. 5. Despite service of the application, there is no response filed hence the matter went on *ex parte.* I have considered the application herein and the affidavit in support. The only issues which germinate for determination are; whether the applicant has met the requisite threshold for grant of a *mandamus* order and secondly, whether the respondents jointly singularly pay the award. 6. As stated, the application is not opposed. However, that does not mean that the application must succeed automatically. The applicant must establish and prove the claim to the required degree. See **Konchellah v Sunkuli & 2 others (Civil Application 26 of 2018) [2018] KESC 58 (KLR) (7 September 2018) (Ruling**). 7. The key prayer in the instant application is, issuance of a *mandamus* order to compel the respondents to honour the claim. An order of *mandamus* is codified under **Order 53** of the **Civil Procedure Rules** thus anchoring the main objective of the order as that of compelling the performance of a public duty. This position was succinctly stated by Nyamweya J *(as she then was)* in the case of **Republic -vs- Jomo Kenyatta University of Agriculture and Technology *ex parte* Elijah Kamau Mwangi [2021] eKLR** *as follows;* **“The purpose of mandamus is to compel the performance of a public duty or any act contrary to or evasive of the law. It therefore lies against a public officer when some specific act or thing, which the law requires to be done, has been omitted. The conditions for its grant are that it must be shown that the public officer has failed to perform his duty; the court will not grant mandamus where there is an alternative remedy available to the Applicant; and that it may be refused if the enforcement of the order will pose implementation challenges that require the Court’s supervision.”** 1. It is trite that, before grant of the order of *mandamus,* the court has to be convinced that the applicant has done his part in terms of supplying the requisite documents and demanding for payment. See the case of **Republic -vs- Principal Secretary, Ministry of Internal Security & Anor Ex-Parte Schon Noorani & Anor [2018] KEHC 9433 (KLR)** where the court stated; **“29. 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),****[[23]](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/9433/eng%402018-09-11%22%20%5Cl%20%22_ftn23%22%20%5Co%20%22) and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).****[[24]](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/9433/eng%402018-09-11%22%20%5Cl%20%22_ftn24%22%20%5Co%20%22) 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:** 1. **A prior demand for performance;** 2. **A reasonable time to comply with the demand, unless there was outright refusal; and** 3. **An express refusal, or an implied refusal through unreasonable delay;** 4. **No other adequate remedy is available to the Applicants;** 5. **The Order sought must be of some practical value or effect;** 6. **There is no equitable bar to the relief sought;** 7. **On a balance of convenience, mandamus should lie.”** 8. It is my view that, failure by the respondents to honour the award amounts to neglect of duty or failure to honour performance of a public duty hence calling for an order of *mandamus* to enforce performance. 9. Indeed, in clearing any doubt as to who between the KWS and the Cabinet Secretary for Tourism and Wildlife 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.**” 1. 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)e KLR.** 1. In this case, it is not in dispute that the deceased died as a result of a vicious attack by a hippo and that an assessment of Kshs. 5 Million compensation has already been done in his favor. This is pursuant to **Section 25** of the **Wildlife Conservation & Management Act** which provides; **(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**](https://new.kenyalaw.org/akn/ke/act/2013/47/eng%402022-12-31#part_IV__sec_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.** **(4)…** **(5)…** **(6)…** **(7)…** 1. Considering that the claim is not denied nor is the compensation award in dispute, the respondents are jointly and severally held liable. It is the joint responsibility of the two respondents to ensure that the amount ordered for is paid. This is galvanized by the fact that the 1st respondent is the Manager and Caretaker of Wildlife and the 2nd respondent is the Accounting Officer of the Wildlife Management Resources. 2. Therefore, the mere fact that duties are split in terms of who manages and processes compensation claims and who finally pays the compensation under **Sections 18** and **25** of the parent **Act**, they owe the claimant his or rightful duty of compensation jointly. See **High Court at Homa Bay Republic v Kenya Wildlife Service & 2 others; Oketch (Suing as the Legal Representative of the Estate of Ebennezar Onyango Oketch - Deceased) (Ex parte Applicant) (Judicial Review E010 of 2024) [2026] KEHC 4164 (KLR) (13 March 2026)** (Judgment) where the Court ordered the Kenya Wildlife Services to pay 5 Million to the estate of the deceased. 3. Having reneged on their statutory duty to honour payment after several demands to pay, the court is left with no choice but to grant a *mandamus* order to enforce performance of that public duty. 4. Accordingly, a *mandamus* order be and is hereby granted directing the respondents jointly and severally to pay a sum of 5 Million to the *ex parte* applicant together with costs of the suit. Dated, signed and delivered virtually this **22nd** day of **May 2026** ………………….….. J. N. ONYIEGO **JUDGE**