REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
JUDICIAL REVIEW MISC APP NO. E004 OF 2026
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL 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…………………………..………......RESPONDENT
AND
JONATHAN LESEE & KHOBOSO SEYEE
(Suing as the administrators and legal representatives of the Estate of ALI BUTE ESIMTOKO,Deceased) …………………………………EX PARTE APPLICANTS
RULING
A. INTRODUCTION
1. Before this Court for consideration is the Ex Parte Applicants’ substantive judicial review notice of motion Application dated 25 th March 2026. The Application is grounded on Section 8 & 9 of the Law Reform Act, Cap 26, Order 53 Rule 3(1) of the Civil Procedure Rules alongside other relevant legal provisions. Through this suit, the Applicants move the Court for the following substantive remedies:
a) An order of Mandamus be issued to compel the Respondent to pay the Exparte Applicant the sum of Kshs.5,000,000/= to the Applicants advocate.
b) Costs and further incidentals to the Application be provided for by the respondent.
c) Such further or other relief as this Honourable Court may deem just and expedient to grant.
2. The Application is anchored on the grounds set forth on its face, the statutory statement dated 19 th March 2026, and the verifying affidavit sworn by one of the Ex Parte Applicants, Khoboso Seyee. Conversely, the Respondent opposed this application through their Replying Affidavit executed on 19 th May 2026 by its legal officer, Mr. Gideon Mutai.
B. THE MOTION AND RESPONSE
3. The Ex Parte Applicants averred that they are the next of kin and legal representatives of the estate of the late Ali Bute Esimtoko who was viciously attacked by an elephant at Ngare Mara area on 9 th July 2022 and was rushed to hospital, where he succumbed to his injuries while undergoing treatment. The incident was formally reported at Isiolo Police Station under OB No. 39/12/7/2022, as well as to the local chief's office. Officers from the Respondent subsequently visited, took details of the incident, and assured the family of compensation for the death of their kin.
4. Following the attack, the Applicants applied for compensation by filling and submitting the prescribed claim form provided by the Respondent. The Community Wildlife Conservation Committee (CWCC) convened and considered the claim, recommending it for approval, and forwarded the matter to the Ministerial Wildlife Compensation Committee (MWCC). In July 2025, payment of compensation in the sum of Kshs.5,000,000.00 was duly approved. The Applicants contend that despite waiting for close to four years since reporting the incident and making repeated follow-ups, the Respondent has failed to settle the award. It is argued that this continued delay is unjustifiable runs contrary to administrative justice, and unless the Court intervenes by issuing an order of mandamus, the Applicants will continue to suffer prejudice.
5. Opposing the Application, the Respondent, through its Legal Officer averred that the suit is fatally defective and lacks legal foundation, as it endeavors to enforce an obligation beyond the scope of its statutory functions. The Respondent maintained that pursuant to Section 25(3) of the Wildlife Conservation and Management Act, No. 47 of 2013 , the primary statutory obligation to disburse compensation to victims of wildlife attacks is explicitly vested in the Cabinet Secretary, Ministry of Tourism and Wildlife, rather than the Kenya Wildlife Service.
6. Furthermore, it was asserted that the Respondent’s legal posture in the compensation framework is restricted to serving as a conduit or "go-between" connecting claimants and the Cabinet Secretary. On that premise, the Respondent contended that the Applicants failed to establish any actionable breach of a legal or statutory duty attributable to it, and accordingly prayed for the dismissal of the Application with costs on the grounds that it is unmerited and an abuse of the judicial process.
C. PARTIES SUBMISSIONS
i) Ex parte applicant’s submissions
7. The Ex Parte Applicants submitted that under Sections 6 and 7 of the Wildlife Conservation and Management Act, 2013 (the Act) , the Respondent is statutorily mandated to manage national parks, reserves, and wildlife conservation areas, which carries an inherent obligation to control wildlife and safeguard human life. They argued that the duty to manage and conserve wildlife is inextricably linked with the responsibility to bear liability for loss, damage, or death caused by wildlife.
8. In support of this proposition, the Applicants cited Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR , Joseph Boru Ngera & Another v Kenya Wildlife Service vs Rift Valley Agricultural Contractors Limited [2014] eKLR , and the Supreme Court decision in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited, Supreme Court Petition No. 11 of 2015 (2018) eKLR , where it was affirmed that an entity charged with wildlife management and revenue collection must bear the corresponding costs of management and compensation for wildlife-induced damage. The Applicants asserted that internal administrative arrangements regarding whether disbursement is made by the CEO of the Respondent or the Cabinet Secretary should not prejudice a valid claim.
9. The Applicants further submitted that having satisfied the statutory procedure under Section 25 of the Act resulting in an approved recommendation of Kshs.5,000,000.00 by both the County Wildlife Conservation and Compensation Committee and the Ministerial Wildlife Compensation Committee, the Respondent’s failure to pay leaves them with no alternative remedy other than seeking an order of mandamus. To fortify their position, the Applicants relied on several judicial review decisions including Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte Applicant) [2024] KEHC 8086 (KLR) , Joyce Atieno Oguna v Kenya Wildlife Service & Others (Siaya HCJR MISC/E002/2024) , Dongol Eleman Kokoi v Kenya Wildlife Service & Others (Lodwar HCJR No. E003 of 2024) , and Salonik Murunya Parmuai v Kenya Wildlife Service & Others (Narok HCJR/E002/2024) , where orders of mandamus were issued compelling the Respondent to disburse the statutory sum of Kshs.5,000,000.00 for fatal attacks.
10. As a result, they urged the court to grant the orders sought.
ii) Respondent’s submissions
11. Conversely, the Respondent submitted that an order of mandamus can only issue to compel the performance of a public or statutory duty that is directly owed to an applicant and which the respondent has refused or failed to discharge. Citing Republic v Registrar of Societies & 5 Others ex parte Kenyatta & 6 Others [2008] 3 KLR (EP) 521 and Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] eKLR , the Respondent emphasized that the existence of a specific statutory duty vested in the named respondent is a strict prerequisite for the remedy.
12. Relying on Section 25(2) and (3) of the Act read together with Regulation 27(2) of the Wildlife Conservation and Management (Compensation) Regulations, 2017 , the Respondent contended that while the County Committee verifies and submits claims, the legal obligation to consider recommendations and disburse compensation rests exclusively with the Cabinet Secretary responsible for the Ministry of Tourism and Wildlife, who is required to make payments within thirty days of receipt.
13. They maintained that an examination of their functions under Section 7 of the Act reveals no statutory duty on their part to pay human-wildlife compensation claims. Consequently, the Respondent argued that the orders sought against it are legally misdirected and incompetent, praying for the dismissal of the Application with costs.
D. ANALYSIS AND DETERMINATION
14. Upon a thorough review of the Application, the statutory statement, the supporting and opposing affidavits, as well as the comprehensive submissions advanced by both parties, I am persuaded that the matters requiring resolution are as follows:
a) Whether the order of Mandamus should be granted against the respondents.
b) Who should bear the costs of this Application?
15. Before delving into the merits of the present claim, it is necessary to re-examine the legal nature, scope, and parameters of the remedy of mandamus. The prerogative order of mandamus is a judicial command issued by the High Court to compel a public officer, body, or tribunal to perform a public or statutory duty imposed upon it by law, where it has defaulted, neglected, or refused to act.
16. The core principles governing the grant of mandamus were succinctly articulated by the Court of Appeal in Kenya National Examinations Council v Republic ex parte Geoffrey Nthenge & 9 Others [1997] eKLR , where the Court observed that:
“What is the scope and efficacy of an ORDER OF MANDAMUS ? Once again, we turn to HALSBURY’S LAW OF ENGLAND, 4 th 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….”
17. Similarly, in Republic v Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR , the High Court in reaffirming the essential prerequisites for the issuance of an order of mandamus, held that;
“ 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.
18. In the present case, the Respondent raises a single, central defense: that under Section 25(3) of the Wildlife Conservation and Management Act, 2013 (the Act) read with Regulation 27(2) of the Wildlife Conservation and Management (Compensation) Regulations, 2017 , the legal obligation to disburse compensation rests exclusively with the Cabinet Secretary responsible for the Ministry of Tourism and Wildlife, and not with the Kenya Wildlife Service. The Respondent asserts that its role is merely that of a secretary or intermediary.
19. Having evaluated this statutory framework alongside binding jurisprudence, I find the Respondent's position untenable and legally misdirected. First, it is common ground that the Ex Parte Applicants complied with all statutory requirements under Section 25 of the Act. The County Wildlife Conservation and Compensation Committee verified the claim, and the Ministerial Wildlife Compensation Committee subsequently approved an award of Kshs.5,000,000.00 in July 2025. The quantum is liquidated, finalized, and undisputed.
20. In evaluating whether the Kenya Wildlife Service owes a public duty to settle approved human-wildlife compensation claims, this Court must favorably appreciate the authorities relied upon by the Ex Parte Applicants. The Applicants placed strong reliance on Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR , where the Court of Appeal addressed KWS's attempts to evade liability by stating;
“ 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.”
21. This principle was echoed by the Supreme Court in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited, Supreme Court Petition No. 11 of 2015 [2018] eKLR , where the apex Court emphasized that the statutory entity charged with managing wildlife and collecting conservation revenue cannot escape its companion duties:
“ 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”
22. This Court is mindful of the statutory structure created under Section 25 of the Wildlife Conservation and Management Act, 2013, read alongside Regulation 27(2) of the 2017 Regulations . The Respondent’s assertion that it acts merely as a statutory liaison while financial liability rests exclusively on the Cabinet Secretary is a technical defense that has repeatedly been tested before the High Court and other superior courts and that defence has failed. See; Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte Applicant) [2024] KEHC 8086 (KLR) , Joyce Atieno Oguna v Kenya Wildlife Service & Others (Siaya HCJR MISC/E002/2024) , Dongol Eleman Kokoi v Kenya Wildlife Service & Others (Lodwar HCJR No. E003 of 2024) , and Salonik Murunya Parmuai v Kenya Wildlife Service & Others (Narok HCJR/E002/2024) where the Court has firmly rejected the notion that KWS can insulate itself from compensation orders behind administrative or inter-ministerial budgetary channels.
23. Upon an independent reading of the Act, this Court finds that KWS cannot sever its operational mandate from its financial accountability. Once a victim's claim undergoes full statutory verification by the County Committee and receives final approval from the Ministerial Committee, the compensation sum becomes a liquidated public debt. To allow KWS to hide behind the Cabinet Secretary to avoid an order of mandamus would be to endorse administrative buck-passing, rendering the statutory right to compensation under Section 25 an illusion. The law does not permit a public entity entrusted with wildlife governance to evade enforcement by pointing toward internal bureaucratic mechanics.
24. Ultimately, having satisfied every statutory prerequisite, this Court finds that the Ex Parte Applicants have endured a delay of nearly four years since the incident, leaving an undisputed, liquidated sum unpaid without lawful justification and such prolonged inaction constitutes an unreasonable administrative delay and a breach of public duty, thereby satisfying all legal conditions for the issuance of an order of mandamus.
E. DISPOSITION
25. In the premise, I find that the Ex Parte Application dated 25th March 2026 is meritorious. Consequently, I make the following orders:
a) An Order of Mandamus be and is hereby issued compelling the Respondent, Kenya Wildlife Service, to forthwith release and disburse the sum of Kshs.5,000,000.00 (Five Million Kenya Shillings), being the approved compensation for the death of the late Ali Bute Esimtoko, to the Ex Parte Applicants’ Advocates on record.
b) The Respondent shall pay the costs of this Application to the Ex Parte Applicants
c) 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 21 st day of SEPTEMBER, 2026 .
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this 21 st day of SEPTEMBER 2026.
In the presence of;
…………N/A……………………….for Ex parte Applicant
……………N/A…………………….for Respondent
……………JARSO…………………….Court Assistant
MARSABIT JR MISC E004 OF 2026 2
IN THE HIGH COURT OF KENYA AT MARSABIT
JUDICIAL REVIEW MISC APP NO. E004 OF 2026
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL 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…………………………..………......RESPONDENT
AND
JONATHAN LESEE & KHOBOSO SEYEE
(Suing as the administrators and legal representatives of the Estate of ALI BUTE ESIMTOKO,Deceased) …………………………………EX PARTE APPLICANTS
RULING
A. INTRODUCTION
1. Before this Court for consideration is the Ex Parte Applicants’ substantive judicial review notice of motion Application dated 25 th March 2026. The Application is grounded on Section 8 & 9 of the Law Reform Act, Cap 26, Order 53 Rule 3(1) of the Civil Procedure Rules alongside other relevant legal provisions. Through this suit, the Applicants move the Court for the following substantive remedies:
a) An order of Mandamus be issued to compel the Respondent to pay the Exparte Applicant the sum of Kshs.5,000,000/= to the Applicants advocate.
b) Costs and further incidentals to the Application be provided for by the respondent.
c) Such further or other relief as this Honourable Court may deem just and expedient to grant.
2. The Application is anchored on the grounds set forth on its face, the statutory statement dated 19 th March 2026, and the verifying affidavit sworn by one of the Ex Parte Applicants, Khoboso Seyee. Conversely, the Respondent opposed this application through their Replying Affidavit executed on 19 th May 2026 by its legal officer, Mr. Gideon Mutai.
B. THE MOTION AND RESPONSE
3. The Ex Parte Applicants averred that they are the next of kin and legal representatives of the estate of the late Ali Bute Esimtoko who was viciously attacked by an elephant at Ngare Mara area on 9 th July 2022 and was rushed to hospital, where he succumbed to his injuries while undergoing treatment. The incident was formally reported at Isiolo Police Station under OB No. 39/12/7/2022, as well as to the local chief's office. Officers from the Respondent subsequently visited, took details of the incident, and assured the family of compensation for the death of their kin.
4. Following the attack, the Applicants applied for compensation by filling and submitting the prescribed claim form provided by the Respondent. The Community Wildlife Conservation Committee (CWCC) convened and considered the claim, recommending it for approval, and forwarded the matter to the Ministerial Wildlife Compensation Committee (MWCC). In July 2025, payment of compensation in the sum of Kshs.5,000,000.00 was duly approved. The Applicants contend that despite waiting for close to four years since reporting the incident and making repeated follow-ups, the Respondent has failed to settle the award. It is argued that this continued delay is unjustifiable runs contrary to administrative justice, and unless the Court intervenes by issuing an order of mandamus, the Applicants will continue to suffer prejudice.
5. Opposing the Application, the Respondent, through its Legal Officer averred that the suit is fatally defective and lacks legal foundation, as it endeavors to enforce an obligation beyond the scope of its statutory functions. The Respondent maintained that pursuant to Section 25(3) of the Wildlife Conservation and Management Act, No. 47 of 2013 , the primary statutory obligation to disburse compensation to victims of wildlife attacks is explicitly vested in the Cabinet Secretary, Ministry of Tourism and Wildlife, rather than the Kenya Wildlife Service.
6. Furthermore, it was asserted that the Respondent’s legal posture in the compensation framework is restricted to serving as a conduit or "go-between" connecting claimants and the Cabinet Secretary. On that premise, the Respondent contended that the Applicants failed to establish any actionable breach of a legal or statutory duty attributable to it, and accordingly prayed for the dismissal of the Application with costs on the grounds that it is unmerited and an abuse of the judicial process.
C. PARTIES SUBMISSIONS
i) Ex parte applicant’s submissions
7. The Ex Parte Applicants submitted that under Sections 6 and 7 of the Wildlife Conservation and Management Act, 2013 (the Act) , the Respondent is statutorily mandated to manage national parks, reserves, and wildlife conservation areas, which carries an inherent obligation to control wildlife and safeguard human life. They argued that the duty to manage and conserve wildlife is inextricably linked with the responsibility to bear liability for loss, damage, or death caused by wildlife.
8. In support of this proposition, the Applicants cited Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR , Joseph Boru Ngera & Another v Kenya Wildlife Service vs Rift Valley Agricultural Contractors Limited [2014] eKLR , and the Supreme Court decision in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited, Supreme Court Petition No. 11 of 2015 (2018) eKLR , where it was affirmed that an entity charged with wildlife management and revenue collection must bear the corresponding costs of management and compensation for wildlife-induced damage. The Applicants asserted that internal administrative arrangements regarding whether disbursement is made by the CEO of the Respondent or the Cabinet Secretary should not prejudice a valid claim.
9. The Applicants further submitted that having satisfied the statutory procedure under Section 25 of the Act resulting in an approved recommendation of Kshs.5,000,000.00 by both the County Wildlife Conservation and Compensation Committee and the Ministerial Wildlife Compensation Committee, the Respondent’s failure to pay leaves them with no alternative remedy other than seeking an order of mandamus. To fortify their position, the Applicants relied on several judicial review decisions including Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte Applicant) [2024] KEHC 8086 (KLR) , Joyce Atieno Oguna v Kenya Wildlife Service & Others (Siaya HCJR MISC/E002/2024) , Dongol Eleman Kokoi v Kenya Wildlife Service & Others (Lodwar HCJR No. E003 of 2024) , and Salonik Murunya Parmuai v Kenya Wildlife Service & Others (Narok HCJR/E002/2024) , where orders of mandamus were issued compelling the Respondent to disburse the statutory sum of Kshs.5,000,000.00 for fatal attacks.
10. As a result, they urged the court to grant the orders sought.
ii) Respondent’s submissions
11. Conversely, the Respondent submitted that an order of mandamus can only issue to compel the performance of a public or statutory duty that is directly owed to an applicant and which the respondent has refused or failed to discharge. Citing Republic v Registrar of Societies & 5 Others ex parte Kenyatta & 6 Others [2008] 3 KLR (EP) 521 and Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] eKLR , the Respondent emphasized that the existence of a specific statutory duty vested in the named respondent is a strict prerequisite for the remedy.
12. Relying on Section 25(2) and (3) of the Act read together with Regulation 27(2) of the Wildlife Conservation and Management (Compensation) Regulations, 2017 , the Respondent contended that while the County Committee verifies and submits claims, the legal obligation to consider recommendations and disburse compensation rests exclusively with the Cabinet Secretary responsible for the Ministry of Tourism and Wildlife, who is required to make payments within thirty days of receipt.
13. They maintained that an examination of their functions under Section 7 of the Act reveals no statutory duty on their part to pay human-wildlife compensation claims. Consequently, the Respondent argued that the orders sought against it are legally misdirected and incompetent, praying for the dismissal of the Application with costs.
D. ANALYSIS AND DETERMINATION
14. Upon a thorough review of the Application, the statutory statement, the supporting and opposing affidavits, as well as the comprehensive submissions advanced by both parties, I am persuaded that the matters requiring resolution are as follows:
a) Whether the order of Mandamus should be granted against the respondents.
b) Who should bear the costs of this Application?
15. Before delving into the merits of the present claim, it is necessary to re-examine the legal nature, scope, and parameters of the remedy of mandamus. The prerogative order of mandamus is a judicial command issued by the High Court to compel a public officer, body, or tribunal to perform a public or statutory duty imposed upon it by law, where it has defaulted, neglected, or refused to act.
16. The core principles governing the grant of mandamus were succinctly articulated by the Court of Appeal in Kenya National Examinations Council v Republic ex parte Geoffrey Nthenge & 9 Others [1997] eKLR , where the Court observed that:
“What is the scope and efficacy of an ORDER OF MANDAMUS ? Once again, we turn to HALSBURY’S LAW OF ENGLAND, 4 th 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….”
17. Similarly, in Republic v Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] eKLR , the High Court in reaffirming the essential prerequisites for the issuance of an order of mandamus, held that;
“ 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.
18. In the present case, the Respondent raises a single, central defense: that under Section 25(3) of the Wildlife Conservation and Management Act, 2013 (the Act) read with Regulation 27(2) of the Wildlife Conservation and Management (Compensation) Regulations, 2017 , the legal obligation to disburse compensation rests exclusively with the Cabinet Secretary responsible for the Ministry of Tourism and Wildlife, and not with the Kenya Wildlife Service. The Respondent asserts that its role is merely that of a secretary or intermediary.
19. Having evaluated this statutory framework alongside binding jurisprudence, I find the Respondent's position untenable and legally misdirected. First, it is common ground that the Ex Parte Applicants complied with all statutory requirements under Section 25 of the Act. The County Wildlife Conservation and Compensation Committee verified the claim, and the Ministerial Wildlife Compensation Committee subsequently approved an award of Kshs.5,000,000.00 in July 2025. The quantum is liquidated, finalized, and undisputed.
20. In evaluating whether the Kenya Wildlife Service owes a public duty to settle approved human-wildlife compensation claims, this Court must favorably appreciate the authorities relied upon by the Ex Parte Applicants. The Applicants placed strong reliance on Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR , where the Court of Appeal addressed KWS's attempts to evade liability by stating;
“ 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.”
21. This principle was echoed by the Supreme Court in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited, Supreme Court Petition No. 11 of 2015 [2018] eKLR , where the apex Court emphasized that the statutory entity charged with managing wildlife and collecting conservation revenue cannot escape its companion duties:
“ 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”
22. This Court is mindful of the statutory structure created under Section 25 of the Wildlife Conservation and Management Act, 2013, read alongside Regulation 27(2) of the 2017 Regulations . The Respondent’s assertion that it acts merely as a statutory liaison while financial liability rests exclusively on the Cabinet Secretary is a technical defense that has repeatedly been tested before the High Court and other superior courts and that defence has failed. See; Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte Applicant) [2024] KEHC 8086 (KLR) , Joyce Atieno Oguna v Kenya Wildlife Service & Others (Siaya HCJR MISC/E002/2024) , Dongol Eleman Kokoi v Kenya Wildlife Service & Others (Lodwar HCJR No. E003 of 2024) , and Salonik Murunya Parmuai v Kenya Wildlife Service & Others (Narok HCJR/E002/2024) where the Court has firmly rejected the notion that KWS can insulate itself from compensation orders behind administrative or inter-ministerial budgetary channels.
23. Upon an independent reading of the Act, this Court finds that KWS cannot sever its operational mandate from its financial accountability. Once a victim's claim undergoes full statutory verification by the County Committee and receives final approval from the Ministerial Committee, the compensation sum becomes a liquidated public debt. To allow KWS to hide behind the Cabinet Secretary to avoid an order of mandamus would be to endorse administrative buck-passing, rendering the statutory right to compensation under Section 25 an illusion. The law does not permit a public entity entrusted with wildlife governance to evade enforcement by pointing toward internal bureaucratic mechanics.
24. Ultimately, having satisfied every statutory prerequisite, this Court finds that the Ex Parte Applicants have endured a delay of nearly four years since the incident, leaving an undisputed, liquidated sum unpaid without lawful justification and such prolonged inaction constitutes an unreasonable administrative delay and a breach of public duty, thereby satisfying all legal conditions for the issuance of an order of mandamus.
E. DISPOSITION
25. In the premise, I find that the Ex Parte Application dated 25th March 2026 is meritorious. Consequently, I make the following orders:
a) An Order of Mandamus be and is hereby issued compelling the Respondent, Kenya Wildlife Service, to forthwith release and disburse the sum of Kshs.5,000,000.00 (Five Million Kenya Shillings), being the approved compensation for the death of the late Ali Bute Esimtoko, to the Ex Parte Applicants’ Advocates on record.
b) The Respondent shall pay the costs of this Application to the Ex Parte Applicants
c) 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 21 st day of SEPTEMBER, 2026 .
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this 21 st day of SEPTEMBER 2026.
In the presence of;
…………N/A……………………….for Ex parte Applicant
……………N/A…………………….for Respondent
……………JARSO…………………….Court Assistant
MARSABIT JR MISC E004 OF 2026 2