Skip to content
JudgmentKenya Wildlife Service VS ANDERSON MWANGULE MANGI8 min read

Kenya Wildlife Service VS ANDERSON MWANGULE MANGI

High Court at Voi High Court · · George. Dulu


(From the judgment in Civil Case No. E074 of 2021 delivered on 18th January 2023 by Hon. C. K. Kithinji (PM) at Voi Law Courts)

  1. In a judgment delivered on 18th January 2023 the Magistrate’s court found in favour of the plaintiff (now respondent) at 100% liability against the defendants (now appellants) and concluded as follows:-

“I thus enter judgment for the plaintiff against the defendant as follows:-

General damages for pain and suffering Kshs. 1,800,000/=

Loss of earning capacity   Kshs.   500,000/=

Future medical expenses   Kshs.    50,000/=

Special damages     Kshs.     15,050/=

Total judgment sum    Kshs. 2,365,050/=

The sums awarded will attract interest at court rates from the date of this judgment.  Costs follow the event.  The plaintiff is the successful party.  He will have costs of the suit.”

  1. Dissatisfied with the decision of the Magistrate’s court the appellants have come to this court on appeal through counsel S. M. Righa & Company Advocates on the following grounds:-
  2. That the learned trial Magistrate erred in law and in fact in failing to uphold the doctrine of Ex dolo malo, non oritur action and finding that the plaintiff was engaged in an unlawful act at the material time of the accident.
  3. That the learned trial Magistrate erred in law and in fact in failing to uphold the doctrine of Ex turpi causa non oritur action and dismissing the plaintiff’s claim as whole.
  4. That the learned trial Magistrate erred in law and in fact by failing to apportion liability to the plaintiff considering that the accident occurred due to the plaintiff voluntarily exposing himself to danger.
  5. That the learned trial Magistrate erred in law and in fact and misdirected himself by failing to consider at all the submissions made before him by the defendants and reached an erroneous conclusion thereby occasioning a miscarriage of Justice.
  6. The learned trial Magistrate erred in law and in fact in holding that the defendants were wholly liable in the absence of any evidence and by having disregard of the submissions by the defendants and cited legal authorities.
  7. That the learned trial Magistrate erred in law and in fact and misdirected himself by failing to consider at all the submissions made before him by the appellant and reached an erroneous conclusion thereby occasioning a miscarriage of Justice.
  8. That the learned trial Magistrate erred in law and in fact by awarding loss of earning capacity to the sum of Kshs. 500,000/= which was excessive and by having disregard of the submissions by the appellants and cited legal authorities.
  9. That the learned trial Magistrate erred in law and in fact by awarding pain and suffering to the sum of Kshs. 1,800,000/= when the same was manifestly high and by having disregard of the submissions by the appellants and cited legal authorities.
  10. That the learned trial Magistrate in assessing quantum of damages took into account irrelevant factors and wrong decision principles and arrived at a wrong decision and excessive award on quantum of damages.
  11. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by S. M. Righa & Company Advocates for the appellants and the submissions filed by S. N. Ngare & Company Advocates for the respondent.  Both counsel relied upon decided court cases.
  12. This being a first appeal, I have a duty to put all the evidence on record to a fresh examination and evaluation and arrive at my own independent conclusions and inferences – see Selle =Versus= Associated Motor Boat Company Ltd (1968) EA 132 and Abok James Odera =Versus= John Patrick Machira (2013) eKLR.
  13. This being an appeal on liability and the quantum of damages awarded, I have to be guided by the principle stated in the case of Kenfro Africa Ltd =Versus= Lubia & Another wherein it was stated that assessing quantum of damages is an exercise of discretionary power by a trial court and that the appellate court can only interfere if the trial court acted on wrong principles or awarded excessively high or excessively low damages, or considered matters which it should not have considered, or failed to consider matters it should have considered.
  14. Having stated as above, the burden was on the plaintiff (now respondent) to prove his allegations against the defendants (now appellants).  This burden is codified under Section 107 of the Evidence Act.  The standard of proof is on the balance of probabilities, as this is a civil case.
  15. In proving their case, the respondent, who was plaintiff called two (2) witnesses.  PW1 was the plaintiff himself Anderson Mwangule Mangi a boda boda (motor cycle) operator who testified that he was riding on tarmac road wearing a helmet and reflector, carrying a passenger who also wore a helmet and reflector.  He stated that his income was Kshs. 30,000/= per month.
  16. It was his evidence that a traffic accident occurred in which he was injured and blamed the respondents for the accident.  He demonstrated the injuries suffered in court and adopted his witness statement and several other documents filed, which included medical treatments documents.
  17. In cross-examination, he stated that the accident was reported to the police and that he had a valid driving licence.  The accident occurred at 12:30a.m at night at Kulalu Ranch within Tsavo East National Park.  He stated that he was not aware of restrictions after 6p.m.  He stated that he had no permit to enter the national park but maintained that the place was a road.  He stated that he was not charged with poaching.
  18. In re-examination, he insisted that the road was a public road.  He stated that he had not been charged in court, and denied entering into agreement with ODPP and KWS on the incident.
  19. PW2 was PC Bernard Mwangi, who testified that a traffic accident occurred on 8th September 2022 at 0030hours at Kulalu within Tsavo East National Park in which Daniel Kinyanjui a KWS driver driving motor vehicle KAT 381X Toyota Land Cruiser, rammed into motor cycle KMFF 747E ridden by Anderson Mangi with a pillion passenger Raymond Jaffer; and Anderson sustained serious injuries.  The injured person was rushed to hospital for treatment, and later police abstract was issued.  According to him, tourists even local ones, pay to use the road to Salam gate, to Malindi.
  20. In cross-examination, he agreed that Kulalu was in Tsavo East National Park, but stated that he was not aware that the park was closed.  He stated that citizens are allowed to pass in the park.  According to him, though nobody was taken to court, the motor vehicle driver was to blame.  He stated that he was not the investigating officer, nor did he have the police file.  In re-examination, he stated that the road was a public road used by citizens and non-citizens.
  21. On their part, the appellants who were defendants called one witness DW1 Fredrick Mwendwa Musyoka a private insurance investigator.  It was his evidence in chief, that he relied on a report dated 26th January 2021 of an accident which had occurred in Kulalu Ranch along Salam Malindi road in Tsavo East National Park.
  22. He testified that nobody goes into the park at that time of day and if one is in the park, they had to remain in the park.  That the plaintiff trespassed into the park and reached an ambush point and attempted to escape when he was intercepted and after a brief chase, lost control of the motorcycle and fell and the KWS officer found him already injured. 
  23. That the respondent was found poaching game meat, and that he was not an authorized driver, and was classified as a poacher.  (The witnesses evidence was objected to as hearsay, but the court allowed him to testify.)
  24. It was his further evidence that KWS reported the incident to DCI, and a charge sheet prepared.  However, the respondent pleaded for mercy and the ODPP used diversion method of disposing of the matter.  According to him, there was agreement signed that the respondent would not pursue KWS for compensation.  He was cross-examined at length and also re-examined.
  25. As stated earlier in this judgment, the appeal herein is against both liability and quantum of damages awarded.
  26. On liability, the evidence on both sides is that there was a collision between a vehicle managed by KWS and a motor cycle managed by the respondent.  The respondent was injured in the process.  The description of where the incident occurred is not in dispute.  However, there is a dispute as to how it occurred, and the justification for the collision.
  27. The respondent maintains that he was on a road lawfully, while the KWS say that he was a poacher in the national park and that what they did was just to arrest him.  Nobody was charged in court for any offence.
  28. In my view, on the balance of probabilities, the respondent proved liability against KWS.  This was because KWS did not bring to court any admissible primary evidence to prove or establish their defence claim.  The evidence of their witness DW1, the loss assessor, was hearsay evidence on this aspect, as he could only validly testify to technical assessment of loss or damage of insurable items, and no more.
  29. Secondly, even assuming that the respondent was in the National Park after hours, that did not establish a legal reason to injure him.  If it were so, one could argue that if a private person finds a stranger, maybe a displaced person in his compound, then he has a licence to harm that person.  That is not the law.  Two wrongs do not make a right.  In the present case, the respondent can be called upon to answer for the alleged wrong, but KWS will also be called upon to answer for their wrong.
  30. I find from the evidence on record therefore, that KWS were liable in negligence to the extend found by the trial court.
  31. With regard to quantum of damages awarded, I note that KWS did not take the respondent for a second medical opinion on the injuries suffered.  The questions put in cross-examination to the respondent did not shake the respondent’s evidence on the injuries suffered, and medical expenses incurred or to be incurred.  In those circumstances, I find no misdirection on the part of the trial Magistrate in assessing damages.  I will uphold the quantum of damages awarded.
  32. Consequently and for the above reasons, I find no merits in the appeal.  I dismiss the appeal, and award costs of appeal to the respondent against the appellants jointly and severally.

Dated, signed and delivered this 6th day of June 2024 in open court at Voi virtually.

In the presence of:-

Alfred – Court Assistant

Mr. Kavila for appellant

Mr. Ndungu for respondent

    Kenya Wildlife Service VS ANDERSON MWANGULE MANGI Kenya Wildlife Service VS ANDERSON MWANGULE MANGI