https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11368

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E162 OF 2023** **THANARA THUMATHIA ………………. APPELLANT** **Versus** **KENYA WILDLIFE SERVICES ……………. RESPONDENT** **JUDGEMENT** **Introduction** 1. This appeal arises out of the judgement of the Magistrates Court in Meru CMCC No. E167 of 2022 delivered on 29/09/2023 in which the trial magistrate dismissed the Appellant’s claim for compensation for crops destroyed by wild animals. 2. Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated 05/10/2023 with the following listed grounds; 1. The learned trial magistrate's decision to find the Plaintiff did not prove he was the owner of L.R. 314 BUURI 'A' ADJUDICATION SECTION and therefore was not entitled to any damages for wildlife invasion of the farm and destruction of his crops, is wholly unsupported by the facts of the case, the evidence tendered in court, the principles of law and the applicable judicial precedents, therefore the same is unreasonable, erroneous and has occasioned a miscarriage of justice. 2. The learned magistrate erred in law and fact in finding the Plaintiff had not proved his case on a balance of probabilities, thereby arriving at an erroneous decision. 3. The learned trial magistrate erred in law and fact in failing to give appropriate consideration to the witness testimonies tendered for the Appellant that were not contradicted by any testimony from the Respondent, the submissions made by the Appellant and the legal authorities provided thereof. 4. The learned magistrate’s judgement as a whole is not supported by evidence that was tendered in court. 3. The Appellant prayed for the appeal to be allowed and the judgment delivered on 29/09/2023 be set aside and judgement be entered for the Appellant. He also prayed for the costs of this appeal to be provided for. 4. This appeal was canvassed by way of written submissions. **Appellant’s submissions** 1. The Appellant in his written submissions dated 21st May 2026, claims that the trial court's Judgment delivered on 29th September 2023, dismissing his suit for destruction of crops by wildlife, was erroneous and against the weight of evidence. 2. On whether the Appellant proved ownership or possessory interest in the suit land, the Appellant submitted that he pleaded and testified that he was the lawful and beneficial owner and user of Land Parcel No. 314 Buuri "A" Adjudication Section, and adduced documentary evidence including the Chief's letter confirming his occupation and use of the land. He argued that strict proof of title is not mandatory in tort claims, as possession alone is sufficient to establish a legally protected interest. 3. On whether the Appellant proved his case on a balance of probabilities, he submitted that the evidence on record was clear, direct, and unchallenged: elephants invaded the Appellant's land and destroyed crops, the destruction was confirmed by an independent Agricultural Officer, and the value of loss was assessed at over Kshs. 310,000/-. He argued that the Respondent called no evidence to rebut the claim, and uncontroverted evidence must be accepted unless inherently incredible. 4. On whether the Respondent was liable for the destruction caused by wildlife, the Appellant submitted that the Respondent is a statutory body established under Section 6 of the Wildlife Conservation and Management Act, 2013, with the mandate to manage and control wildlife. 5. The Appellant prayed for the appellate court to allow the appeal in its entirety, set aside the trial court's Judgment, enter judgment in favour of the Appellant as prayed in the plaint, and award costs of the suit and the appeal to the Appellant. **Respondent’s submissions** 1. The Respondent in its written submissions opposes the Appeal and contends that the trial court's Judgment delivered on 29th September 2023 was sound and properly dismissed the Appellant's suit for failure to prove ownership of the suit land. 2. On whether the trial court failed to consider the evidence, the Respondent submitted that the trial court's judgment engaged the material placed before it and expressly addressed the documents relied upon, correctly finding they do not prove ownership or a cognizable proprietary interest. The Respondent argues that the burden of proof remained with the Appellant under Sections 107-109 of the Evidence Act, and even where the Respondent calls no witness, the Appellant must still discharge the legal and evidential burden. 3. The Respondent prayed for the appeal to be dismissed with costs **Analysis and determination** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 2. In ***Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR*** the Court of Appeal stated that: ***“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** 1. Before this Court can proceed to examine the merits of the appeal, it must first satisfy itself that the proceedings in the court below were properly founded in law. Jurisdiction is a threshold question that precedes any inquiry into the merits of a dispute. As was stated by the Court of Appeal in ***Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1***, ***“…jurisdiction is everything; without it, a court must down its tools. A court that proceeds without jurisdiction renders its proceedings a nullity, however well-intentioned…” [Emphasis added].*** 1. Having considered the record of appeal before this Court, a fundamental jurisdictional question arises on whether the trial court had the requisite jurisdiction to hear and determine this suit, given that the Appellant had not exhausted the statutory dispute resolution mechanism established under the Wildlife Conservation and Management Act, No. 47 of 2013. Although this issue was not raised as a preliminary objection by the Respondent at trial, nor specifically pleaded by either party on appeal, jurisdiction cannot be conferred by consent, waiver, or silence See ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR***. 2. Section 25 of the Act establishes the statutory framework for compensation of persons affected by human-wildlife conflict. The relevant provisions read as follows: ***(1) …*** ***(2) …*** ***(3) …*** ***(4) Any person who suffers loss or damage to crops, livestock or other property from wildlife specified in the Seventh Schedule hereof and subject to the rules made by the Cabinet Secretary, may submit a claim to the County Wildlife Conservation and Compensation Committee who shall verify the claim and make recommendations as appropriate and submit it to the Service for due consideration.*** ***(5) The County Wildlife Conservation and Compensation Committee shall review the claim and award and pay a compensation valued at the ruling market rates:Provided that no compensation shall be paid where the owner of the livestock, crops or other property failed to take reasonable measures to protect such crops, livestock or property from damage by wildlife or his land use practices are in compatible with the ecosystem-based management plan for the area.*** ***(6) A person who is dissatisfied with the award of compensation by either the County Wildlife Conservation and Compensation Committee or the Service may within thirty days after being notified of the decision and award, file an appeal to the National Environment Tribunal and on a second appeal to the Environment and Land Court.*** ***(7) …*** 1. In [***Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome) [2024] KECA 1127 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1127/eng%402024-09-06), the Court of Appeal held that the intention of Section 25 of the Act was to cause claimants to benefit from the specialized statutory dispute resolution mechanism, which was less cumbersome and better placed to deal with human-wildlife conflict matters. 2. I am further guided by the objects of the Act itself. One of the stated objects of the Act under section 5 is to manage human-wildlife conflict and to provide compensation for injuries, deaths, and property damage caused by wildlife. Parliament deliberately created the Committee as a specialised body equipped with the technical knowledge, proximity, and institutional capacity to assess and determine such claims. The Act provides a full appellate ladder where dissatisfied claimants may appeal from the Committee to the National Environment Tribunal, and on a second appeal to the Environment and Land Court under Section 25(6) of the Act. 3. In the present case, I find that the Appellant did not explore the statutory avenues under section 25 of the Act and the trial court did not have jurisdiction to entertain the claim. 4. For the foregoing reasons, I find that the trial court lacked the requisite jurisdiction to hear and determine this suit, as the Appellant had not exhausted the statutory mechanism established under Section 25 of the Act before filing suit. The proceedings before the trial court and the judgment delivered on 14th May 2024 are accordingly a nullity and the appeal is hereby dismissed. **Disposition** 1. The upshot of the above is that: - 1. The appeal is hereby dismissed 2. The judgement of the trial court in Meru CMCC No. E167 of 2022 delivered on 29/09/2023 hereby set aside. 3. Each party to bear their own costs. It is so ordered. Right of appeal 30 days. Dated, signed and delivered vide TEAMS platform at Nairobi on this 24th day of July, 2026. **……………………………** **Hon. R. A. Oganyo, Mrs.** **Judge.** **In the Presence of; -** Court Assistant…E, Sana Mr. Ashaba for the Appellant Mr. Mutai for the Respondent.