https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11507

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **JUDICIAL REVIEW CASE NO. E005 OF 2026** **IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS** **AND** **IN THE MATTER OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE WILDLIFE CONSERVATION & MANAGEMENT ACT, CAP 347 LAWS OF KENYA** **BETWEEN** **REPUBLIC………………………………………………………………….. APPLICANT** **VERSUS** **KENYA WILDLIFE SERVICES……………………………….………. 1ST RESPONDENT** **THE CABINET SECRETARY, MINISTRY OF TOURISM & WILDLIFE………….………………………………………...……… 2ND RESPONDENT** **JOSEPH MALIKA KIMULI** (*Suing as the Legal Representative & Administrator of the estate of* **MBATHA MALIKA**)**……………………….…….*EX-PARTE* APPLICANT** **JUDGMENT** 1. The application seeking determination is dated 04/02/2026 brought under **Sections 8 & 9 of the Law Reform Act, Cap 26 Laws of Kenya, Order 53 Rule 3 of the Civil Procedure Rules** and all other enabling provisions of the law. It seeks; 2. **An order of mandamus to compel the Respondents to immediately release Kshs. 5,000,000/= to the Applicant’s Advocate.** 3. **Costs of the Application be provided for.** 4. The application is supported by the grounds on its face and the affidavit of Joseph Malika Kimuli sworn on the same date. He deposed that he is the Legal Representative of Mbatha Malika (deceased) who was fatally bitten by a poisonous snake on 13/04/2016 owing to the 1st Respondent’s negligence and breach of statutory duty as governed by provisions of the **Wildlife Conservation and Management Act**. That, he reported the matter to the 1st Respondent’s officers who took details and promised compensation. 5. He averred that, the 1st Respondent convened a meeting of the Community Wildlife Conservation Committee (CWCC) as regards the compensation claim, a function which it is tasked with together with making recommendations to ministerial Wildlife Compensation Committee (MWCC) which validates and approves payment of the awards by the aforesaid committee. 6. That, he followed up at the County offices within the year and was informed that the MWCC had approved the award but is yet to receive the compensation on behalf of his deceased son. That, he has made follow ups on various occasions but the 1st Respondent has not been forthcoming. 7. He stated that, he has waited for close to nine years and the Respondents continue to unjustifiably delay the compensation without any plausible explanation. He expressed his apprehension that unless the court intervenes and compels the Respondents to settle the claim, they will continue to ignore his demands for compensation thus corroding and eroding his confidence and that of the general public in the efficiency of administrative processes in Kenya. 8. The 1st Respondent, in its submissions, alluded to a Replying Affidavit sworn by Diana Sigei on 31/03/2026 but the same is neither on CTS nor physical file. 9. The 2nd Respondent opposed the application through the following grounds of opposition dated 11/05/2026; 10. The Notice of Motion is bad in law and the orders sought are untenable as the Applicants have failed to demonstrate any efforts whatsoever to have the compensation award settled by the Respondents. 11. That the Application as well as the supporting affidavit are jumbled up with extraneous and incoherent matters that on the face of it merely bring out speculative and emotive conclusions based on the Applicant’s misconceived belief, he was awarded Kshs. 5,000,000/= by the Respondents. 12. The Notice of Motion lacks any merit as it falls short of meeting the threshold of judicial review as adumbrated in the celebrated case of **Republic -vs-Public Procurement Administrative Review Board & 2 Others Ex-Parte Sanitam Services (E.A) Limited (2013) eKLR**. 13. The Notice of Motion is a mere grope in the dark and the Applicant is merely attempting to evoke the court’s humanitarian nature to be awarded the said orders. 14. The Notice of Motion is a non-starter, abuse of court and justice as the orders sought are not supported by evidence of any decision by the Respondents to compensate the *Ex-parte* Applicant. 15. The *Ex-parte* Applicant is guilty of laches hence the claim against the Respondents cannot be granted in the circumstances for being time barred. 16. The application was canvassed through written submissions. 17. The issues for determination were identified to be; 18. **Whether the statutory compensation process has been duly completed.** 19. **What are the timelines within which the Applicants claim should be settled?** 20. **Whether the 1st Respondent is mandated to compensate the ex-Parte Applicant.** 21. **Whether the ex-Parte Applicant is entitled to the orders for *mandamus.*** 22. As to whether the statutory compensation process has been completed, it was submitted that **Section 25 of the Wildlife Conservation and Management Act (the Act)** sets out a statutory framework and process for compensation arising from harm caused by wildlife. 23. It was submitted that the *Ex-Parte* Applicant lodged the claim and was given claim compensation forms which he filled. That, he was also given a form to indicate bank details which he did on 05/10/2022 but is yet to receive any payment. That, this is a confirmation that the process as per **Section 25 of the** **Act** is complete and the only pending thing is disbursement of funds. Reliance was placed on the case of **Republic -vs- Kenya Wildlife Service & 2 Others; Lesarko & Another (*Ex-parte Applicants*) (Suing as Legal Representatives of the Estate of Langi Lesarkoo) (Judicial Review E006 of 2024) {2025} KEHC 13152 (KLR) (Judicial Review) (24th September 2025) (Judgement)** where the court held that; **“The process of compensation is set out under Section 25 of the Act. It begins with the claimant submitting the claim documents to the committee established under Section 18 of the Act. The committee is supposed to verify the claim within 30 days of receipt of documents and make recommendation to the Cabinet Secretary. The Cabinet Secretary is supposed to make payments within 30 days of receiving the advice of the committee.”** 1. As for the timelines within which the claim should be settled, it was submitted that **Regulation 27 of the Wildlife Conservation and Management (Compensation)** regulations provides clear and mandatory timelines. That, the Committee’s recommendation to the Cabinet Secretary triggered a mandatory thirty-day obligation for settlement of the claim. That, the claim of Kshs. 5,000,000/= is not disputed as the Applicant was asked for bank account details which he provided. 2. As to whether the 1st Respondent is mandated to compensate the *Ex-Parte* Applicant, it was submitted that the issue was settled by the Court of Appeal in **Kenya Wildlife Service -vs- Joseph Musyoka Kalonzo (2017) eKLR** where it was held; **"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 this point was succinctly pronounced in Joseph Boru Ngera & Another vs Kenya Wildlife Service & Rift Valley Agricultural Contractors Limited (2014) eKLR amongst 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 arrangement of the appellant as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.”** 1. Further reliance was placed on 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 held that; **“Secondly, the 1st Respondent's contention that the statutory obligation to settle the ex parte 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”** 1. Consequently, it was submitted that the duty to manage the National Parks and reserves comes with the attendant responsibility to shoulder claims arising out of loss, injury or damage caused to property and human life by Wildlife. Further reliance was placed on the following cases; 2. **Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No. 11 of 2015 (2018) eKLR where the Supreme Court stated as follows at paragraph 66;** **“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 revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation or 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.”** 1. **Republic -vs- Kenya Wildlife Service & 2 others; Muhia (Ex-parte Applicant) (Judicial Review Application E003 of 2024) {2024} KEHC 8086 (KLR) (4 July 2024) (Ruling) where the court stated;** **“It is not in dispute that the 1st respondent is liable to compensate the ex parte applicant and it is not for her to concern herself with the internal arrangements of the 1strespondent as to whether the Cabinet Secretary should disburse the monies to the applicant. It is my considered view that the 1st respondent is liable to compensate the ex parte applicant and that the applicant's claim was approved following the laid down procedures under the Wildlife Conservation and Management Act. The applicant has satisfied this court that the 1st respondent owes her amount of Kshs. 5,000,000 inform of compensation for injuries sustained.”** 1. **Republic -vs- Kenya Wildlife Service & 2 others; Pepela (Suing as the legal representative of the estate of Bravine Wanjala Pepela- Deceased (Ex parte Applicant) {2025} KEHC 11682(KLR)** where the court stated thus; **“I have further considered the decision in the case of Kenya Wildlife Service vs Rift Valley Agricultural Contractors Ltd (2018) eKLR where the court of appeal expressed the view that the mandate of managing wildlife, and collecting revenue from the services offered, could not be separated from the duty to compensate those who are injured or suffer loss, caused by wildlife. It is my finding therefore that in as far as the Applicant's claim has not been vetted and recommendations made to the minister, the 1st Respondent has failed in its statutory duty.”** 1. Consequently, it was submitted that the Supreme Court and the Court of Appeal have settled the law that the 1st Respondent has a statutory duty to compensate the *Ex-Parte* Applicant. 2. As to whether the *Ex-Parte* Applicant is entitled to the orders for *mandamus*, it was submitted in the affirmative and reliance placed on the case of **Republic -vs- Kenya National Examinations Council ex-parte Githinji & 8 Others {1997} eKLR citing with approval Halsbury’s Laws of England 4th Vol. 7p 111** **para 89** where the court stated; **“The order of mandamus is the 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 remedy, yet that mode of redress is less convenient, beneficial and effectual ” These principles mean that an order of mandamus compels 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 had failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”** 1. Further reliance was placed on the case of **Republic -vs- Principal Secretary, Ministry of Internal Security & Another *ex- parte* Schon Nooroni & Another (2018) eKLR** where the court (Hon. Mativo J, as he then was) stated; **“*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 orders sought must be of some practical value or effect;** **VI. There is no equitable bar to the relief sought;** **VII. On a balance of convenience, *mandamus* should lie”** 1. It was submitted that the Respondents have a statutory duty imposed by **Sections 18 and 25 of the Act** to receive, verify and recommend appropriate payment for persons who have suffered bodily injury or are killed by wildlife. That, the thirty (30) day statutory period stipulated under **Regulation 27(2)** has long expired and the Respondents remain in breach of their statutory obligation by failing to effect payment. Reliance was placed on the case of **Republic -vs- Kenya Wildlife Service & 2 Others; Lokui (*Ex-parte* Applicant) (Judicial Review E002 of 2025) {2026} KEHC 356 (KLR) (20 January 2026)** where the court stated; **“The 1st and 2nd Respondents have failed to perform a public duty which is imposed on them by a statute, specifically Sections 7(c), 19 (a) and Section 25 (2) and (4) to the detriment of the ex parte Applicant who has a legal right to expect the duty to be performed. In the circumstances, an order of mandamus becomes the appropriate remedy”** 1. Further reliance was placed on the case of **Republic -vs- Kenya Wildlife Service & 2 Others; Nyawara & Another (Ex-parte Applicants) (Suing as Administrators and the Legal Representative of the Estate of John Clinton) (Judicial Review E001 of 2025) {2025} KEHC 6137 (KLR) (16 May 2025)** where the court stated; **“Even though the 1st Respondent has vehemently opposed the application, the Wildlife Conservation and Management Act 2013 clearly provides that claims arising from injuries or death occasioned by Wildlife ought to be handled by the Respondents within Sixty (60) days. The delay of three years is unacceptable in the circumstances. Further, the failure of the Respondents to address the Applicants’ claim despite being presented with the requisite documents for consideration, now warrants this court to allow the request for an order of mandamus to compel the Respondents to perform their statutory duties. The Respondents are public bodies and are expected to perform their functions and duties in accordance with the law and that in the event of failure to do so, the Applicants have recourse to the court for the judicial remedy of *mandamus*. I find that in the circumstances the Applicants are entitled to such an order.”** 1. It was submitted that the *Ex-Parte* Applicant has no other way of enforcing payment and reliance placed on the case of **Republic -vs- Kenya Wildlife Service & 2 Others; Ouma (Exparte Applicant) (Judicial Review Miscellaneous Application E 006 of 2024) {2025} KEHC 5759 (KLR) (9 May 2025) (Judgement)** where the court stated; **“The Applicant has no other way of enforcing payment of her claim because in Section 21(4) of the Government Proceedings Act, Chapter 40 of the Laws of Kenya it is stipulated that: “(4)... no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”** 1. Further reliance was placed on the cases of **Kenya Wildlife Service -vs- Awuor; (Civil Appeal E013 of 2022) (2023) KEHC 3721 (KLR) (26 April 2023) (Judgement) and Kenya Wildlife Service -vs- Abraham M’ngai M’tumitu {2021} eKLR** where the court stated; **“Clearly the appellant having awarded amount under the Act, further intervention in court could only have been by the appeal process following upon the provision of the section, that is to say through the mechanism of a first appeal 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.”** 1. The 1st Respondent identified the issues for determination to be; Whether the 1st Respondent is a proper party in these proceedings and if so, whether there was a decision to compensate and whether the orders sought against them are available to the *Ex-parte* Applicant. 2. It was submitted that the 1st Respondent is an improper party in these proceedings and the reliefs sought against them cannot be granted. Reliance was placed on the cases of **Republic -vs- County Government of Nairobi & 2 others *Ex-Parte* Kingpost Limited [2021] eKLR** and **Republic -vs- Kenya Vision 2030 Delivery Board & another *Ex-parte* Eng Judah Abekah [2015] eKLR** for the submission that a party seeking an order of *mandamus* must show the existence of a statutory duty owed to them and must also show that the public officer/body, against whom the order is sought, has refused or failed to discharge that duty and there is no other adequate remedy. 3. It was submitted that an order of *mandamus* cannot issue to compel the 1st Respondent to perform a statutory duty owed to an Applicant by another institution totally different from the 1st Respondent. It was contended that the 2nd Respondent has not made a decision compelling the 1st Respondent to pay Kshs. 5,000,000/= to the *Ex-Parte* Applicant. 4. It was submitted that the 1st Respondent is established under **Section 6** **of the** **Act** and its duties enumerated under **Section 7** therein. That, there is no duty to compensate or pay compensation on claims resulting from loss or damage caused by wildlife. 5. It was further submitted that the evidence annexed in the application and relied upon by the *ex-Parte* Applicant is inconclusive. That, there is also no evidence that the 2nd Respondent has approved the said claim and as such, the submissions by the *Ex-Parte* Applicant are unsubstantiated and cannot be verified by this Honourable Court. 6. It was contended that the submission by the Applicant that the 1st Respondent should take up the role of the 2nd Respondent and compensate the Applicant, is arbitrary and unlawful. That, this court has a duty to interpret the law as it is without any modifications whatsoever and to examine the evidence adduced before it and make a determination based on the same. Reliance was placed on the case of **Republic -vs- County Government of Nairobi & 2 Others Ex-Parte Kingpost Limited [2021] eKLR** where the court stated; **“Whereas the Ex-parte Applicant is correct that the 3rd Respondent is the line minister in matters land, it is apparent that he has no role in these proceedings. This is a case of mis-joinder.”** 1. It was submitted that compensation for claims of loss and damage caused by wildlife is clearly provided for under **Sections 24 and 25 of the Act**. That, the statutory duty to sit and deliberate on compensation claims lies squarely with the 2nd Respondent and the duty to pay such compensation, if awarded, lies with the Cabinet Secretary. 2. The issues for determination were stated to be; 3. **What are the grounds for Judicial Review Application?** 4. **Whether court has jurisdiction to determine issues in the Notice of Motion Application.** 5. **Whether the court should grant the reliefs sought?** 6. As for the grounds for Judicial Review Application, reliance was placed on the case of **Council of Civil Service Unions -vs- Minister for the Civil Service (1985) AC 374** for the submission that the grounds for reversing an administrative decision by way of Judicial Review were summed up by Lord Diplock to be; illegality, irrationality and procedural impropriety. 7. It was submitted that the *Ex-Parte* Applicant ought to have demonstrated that the process that led to the impugned decision was illegal, outrageous and improper. That, the *Ex-Parte* Applicant failed this test miserably as they have not demonstrated that there was a decision to enforce. 8. As to whether the court has jurisdiction, it was submitted that Judicial Review is concerned with the decision-making process and not the merits of a decision. That, this court is being called upon to sit on the merits or otherwise of a purported decision by the Respondent. That, the facts pleaded by the Applicant are entirely disputed by the 2nd Respondent and the Applicant has not demonstrated that he was awarded the compensation or steps taken to ensure payment of the compensation. That, this raises a question as to whether the Applicant was indeed awarded the compensation. 9. As to whether the reliefs sought should be granted, it was submitted that *mandamus* cannot compel exercise of power or discretion and cannot compel the performance of a duty in a particular way or to achieve a particular outcome. Reliance was placed *inter alia* on the case of **Republic -vs- Marshland and Fen District Commissioners (1910) 1KB 155 at 165** where the Court stated; **“It may be that the Act of Parliament has granted a power rather than imposed a duty, has conferred a discretion rather than an obligation. If a power or discretion only as distinct from a duty, exists then the prerogative writ of mandamus will not be issued by the court.”** 1. It was submitted that in this case, the Applicant seeks to compel the Respondents to perform statutory duty and secretion in a particular way to achieve particular results. That, the Applicant is relying on a non-existent decision awarding the alleged compensation and has failed to demonstrate that he sought settlement from the 2nd Respondent and was denied. It was contended that the Applicant has failed to demonstrate that he is owed a duty by the 2nd Respondent. Reliance was placed on the case of **Republic -vs-Kenya Vision 2030 Delivery Board & Anor *Ex-Parte* Eng Judah Abekah (2015) eKLR** where the court stated; **“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 adequate remedy.”** 1. Further reliance was placed on the case of **Republic -vs- The Commissioner of Lands & Anor Ex-Parte Kithinji Murugu M’agere; Nairobi High Court Misc Application No. 395 of 2012** where the court (G.V Odunga J, as he then was) stated; **“12. It is an order sought under sections 8 and 9 of the Law Reform Act, Cap 26 Laws of Kenya as read with Order 53 of the Civil Procedure Rules by person or body from the High Court of Kenya requiring any act to be done. In other words, mandamus would issue from the alternative remedy, requesting that a statutory body etc be compelled to fulfill its statutory obligation. So, *mandamus* order can issue from the High Court commanding a body or person to do that which it is its or his duty to do. It lies to secure that performance of a public duty, in the performance of which the applicant has a sufficient legal interest.”** 1. Having looked at the application, Grounds of Opposition and the rival submissions, it is my considered view that the following issues arise for determination; 2. **Whether the Application is time barred?** 3. **Whether the 1st Respondent is a proper party in these proceedings?** 4. **Whether the order of mandamus should be issued.** 5. The 2nd Respondent accused the *Ex-Parte* Applicant of latches and argued that the claim cannot be granted for being time barred. The principle of latches was explained by the Court of Appeal in the case of **James Kanyiita Nderitu -vs- Attorney General & Director of Public Prosecution (2019) KECA 1006 (KLR)** as follows; **“28. We have considered the appellant’s submission and the learned judge’s finding that there was inordinate delay in the filing of the petition. In this context, the learned judge invoked the principle of laches. Laches means the failure or neglect, for an unreasonable length of time, to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time…”** 1. The Application herein is brought under **Order 53 of the Civil Procedure Rules and Sections 8 & 9 of the Law Reform Act**. **Order 53(1) and (2)** provide as follows: **“53(1). No application for an order of Mandamus, Prohibition or Certiorari shall be made unless leave therefor has been granted in accordance with this rule.** **53(2). Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”** 1. On the other hand, **Section 9(2) and (3) of the** [**Law Reform Act**](https://kenyalaw.org/akn/ke/act/1956/48) provides as follows: **“9(2). Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.** **9(3). In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”** 1. From the above provisions, it is evident that the 6-month rule applies when it is an order of *certiorari* being sought. In short, an application for the Judicial Review order of *certiorari* must be filed within six months from the date of the decision being challenged. 2. With regard to orders of *mandamus* and prohibition, there is no express provision giving a timeline within which they should be sought. I am in agreement with the reasoning in the persuasive case of [**Joseph Muriithi Nyaga -vs- Embu County Government**](https://kenyalaw.org/akn/ke/judgment/kehc/2021/2597) **[2021] eKLR** where Section 9 of the Law Reform Act was interpreted as follows; **“15. What is clear from Section 9(2) is that the rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or *certiorari* shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates. My understanding of this section is that it is the rules which are made to govern court proceedings which can (discretionally) provide for the time limit within which an application for *mandamus* (as the case herein) can be made. The only instance when section 9 limits such time is where an applicant seeks for orders of *certiorari.*** **16. The power to make rules as contemplated under section 9(1) is actually actualized by the provisions of Order 53 of the** [**Civil Procedure Rules**](https://kenyalaw.org/akn/ke/act/ln/2010/151/eng%402022-12-31) **2010. Indeed, there are no other rules besides Order 53 of the** [**Civil Procedure Rules**](https://kenyalaw.org/akn/ke/act/ln/2010/151/eng%402022-12-31) **2010.** **17. I have clearly looked at the said Order 53 of the** [**CPA**](https://kenyalaw.org/akn/ke/act/1924/3/eng%402022-12-31) **and there is nowhere in that Rule is it stated that an application for the order of *mandamus* must be made within six months of the date of the act complained of. It is only in Order 53 Rule 2 that a specific timeline is given for the application for the order of *certiorari.*** **18. Further, from the reading of the said section 9(2), the prescription as to the time within which applications for an order of mandamus, prohibition or *certiorari* ought to be made is in regards to specified proceedings. There are no other rules which have been made in regards to execution against the government taking the same as specific proceedings as contemplated by the said section.** **19. It is my view therefore, that the respondent herein misconstrued the law in raising the preliminary objection. It is clear that section 9(2) does not limit the time for filing an application for mandamus to six months but provides that rules made to provide for the procedure of the courts may limit such time. The procedural rules (**[**CPR**](https://kenyalaw.org/akn/ke/act/ln/2010/151/eng%402022-12-31) **2010) which are the only applicable rules do not provide for such a limitation on time in relation to an application for orders of *mandamus* but only when seeking for orders of certiorari.”** 1. Similarly, in this case, there are no other rules which have been made in regards to compensation under the **Wildlife Management & Conservation Act** which are **‘specified proceedings’** as contemplated by **Section 9(2) of the Act**. 2. Further, this case is seeking to enforce the performance of alleged statutory duties hence there can be no prejudice on the Respondents due to unavailability of witnesses. 3. Consequently, it is my considered view that the application is not time barred. 4. The 1st Respondent (KWS) is established under **Section 6 of the Act** and its functions are outlined under **Section 7**. The Wildlife Compensation Scheme is established under **Section 24**. According to **Section 24(2),** the scheme shall be used for financing compensation claims for human death or injury or crop and property damage caused by wildlife. 5. According to **Section 18(2) of the Act**, an officer of KWS for the County serves as the Secretary of the Community Wildlife Conservation Committee whose functions, under **Section 19**, are; **(a)review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife;** **(b)develop and implement, in collaboration with the Service and Community Wildlife Associations, mechanisms for mitigation of human wildlife conflict;** **(c)bring together relevant stakeholders to harness participation in conservation and management programmes of wildlife; and** **(d)perform such other functions as the Service may require or delegate to it.** 1. The procedure for compensation is provided for under **Section 25 of the Act**. According to **Section 25(2);** **‘the County Wildlife Conservation and Compensation Committee established under** [**Section 18**](https://new.kenyalaw.org/akn/ke/act/2013/47/eng%402025-11-04#part_IV__sec_18) **shall verify a claim made under Subsection** [**(1)**](https://new.kenyalaw.org/akn/ke/act/2013/47/eng%402025-11-04#part_V__sec_25__subsec_1) **and upon verification, submit the claim to the Cabinet Secretary together with its recommendations thereon.’** 2. Consequently, the duty of KWS is limited to verifying a claim and submitting it to the Cabinet Secretary together with recommendations thereon. It is therefore evident that KWS is a necessary party, in proceedings of compensation claims, for purposes of informing court whether it has discharged its mandate. 3. Additionally, the necessity of KWS as a party in these proceedings can be deduced from the holding of the Court of Appeal in **KWS -vs- Joseph Musyoki Kalonzo *(supra*).** In my view, KWS cannot be a Manager of Wildlife without the attendant consequences and obligations. It cannot avoid responsibility in compensating the claimants. Being custodians of wildlife, they cannot claim benefits of wildlife yet disown consequences arising out of their existence. 4. An order of *mandamus* is codified in **Order 53 of the CPR**. It is trite that the purpose of a *mandamus* order is to compel the performance of a public duty as 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** *to wit;* **“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. In this case, the *Ex-Parte* Applicant deposed that the deceased died after being bitten by a poisonous snake on 13/04/2016. He also deposed that he reported the matter to KWS officers who took details and promised to compensate for the death. That, he filled the relevant bank forms and has been making follow-ups from KWS County offices. He exhibited a document from KWS (JMK 4) where he filled his bank details on 05/10/2022. 2. The procedure for lodging a compensation claim is provided under **Section 25 of the Act.** 3. **Section 25 of the Act** provides as follows; **(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. **Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations** provides as follows; **“27. Claims of bodily injury or death** **(1) On receipt of a claim for bodily injury or death, the Committee shall within thirty days of such receipt verify the claim and submit it to the Cabinet Secretary together with its recommendations.** **(2) Upon receipt of a claim for bodily injury or death, the Cabinet Secretary shall consider the recommendation of the Committee and make payments within thirty days of receipt of the claim.”** 1. It is therefore evident that the 2nd Respondent’s duty to pay crystalizes once it receives the claim and recommendations from the 1st Respondent. 2. There is no evidence tendered that a claim for compensation was lodged and acted upon as provided under **Sections 18, 19 and 25 of the Act**. There is no proof that the compensation committee sat and made a compensation award capable of execution by way of a *mandamus* order. 3. It is trite law that he who alleges must proof. **See Sections 107-109** **of the** **Evidence Act**. It is not enough to allege a claim for compensation without attaching any evidence that a claim for compensation was made. Flagging a mere banking slip with details of KWS which anybody can fill does not automatically lay a *bonafide* claim against KWS. 4. There should have been same evidence or evidence or minutes to show that the Compensation Committee sat and made the award. The court is left to speculate that there was a claim lodged and an award made. There is nothing before the court to prove that a claim was made, deliberated upon and a compensation award made. 5. In a nutshell, I do not find sufficient evidence to warrant issuance of the orders sought. Consequently, I am inclined to dismiss the application for lack of sufficient evidence that the Respondents have failed to discharge a public duty. As to costs, I will order that each party bears own costs. Dated, signed and delivered virtually this **23rd** day of **July 2026** ........................................... J.N.ONYIEGO **JUDGE**