(Being an appeal against the ruling and or order of Hon. John Njoroge (CM) dated 12 th March, 2025.)
1. By a statement of defence dated 4 th October, 2024, the Appellant herein, Kenya Wildlife Service, raised a preliminary point of objection that the Chief Magistrate’s court did not have the requisite original jurisdiction to hear and determine the suit by dint of the provisions of Section 25 of the Wildlife Conservation and Management Act, 2013.
2. A claim had been brought by the Respondent herein, in the lower court, vide a plaint dated 27 th June, 2024 seeking general damages as well as other reliefs, following an alleged attack by an elephant on 23 rd June, 2018, within his home vicinity of Karia location in IGOJI SUB COUNTY, as he went about his normal daily activities.
3. The preliminary point of objection was canvassed by way of written submissions and a ruling date set for the 5 th March, 2025. The same was however delivered on the 12 th March, 2025, whereby the learned Chief Magistrate found the preliminary point of objection to be unmerited and dismissed it with no orders as to costs.
4. The appellant was aggrieved by the decision and has now appealed to this court on the following grounds; -
i The Learned Trial Magistrate erred in law and in fact in holding that there was no evidence of a claim lodged before the County Wildlife Conservation and Compensation Committee when the Plaintiff admitted the same in his Witness Statement and filed the documents lodged with the Committee.
ii The Learned Trial Magistrate erred in law and in fact in issuing a ruling that was contrary to the judgment and directions issued by the High Court at Meru on 13 th February 2025 in HCCA E158 OF 2023 KENYA WILDLIFE SERVICE -VSSTEPHEN MUCHUI M’NDIENE.
iii The Learned Trial Magistrate erred in law and in fact in issuing a ruling that is contrary to well established and binding authorities.
iv The Learned Trial Magistrate erred in law and in fact in issuing a ruling that was contrary to the issue raised and submitted upon by the Appellant in its Written Submissions.
v The Learned Trial Magistrate erred in law and in fact in basing the body of the ruling on the doctrine of exhaustion and later making a turn around and making orders related to whether the claim was sub-judice.
5. The matter was placed before me on 20 th May, 2026 for directions on how to urge the appeal when learned counsel for the appellant, Ms Seleke, holding brief for Lutta for the appellant, stated that a notice was issued, dated 23 rd March, 2026, by her Ladyship the Honorable Chief Justice, asking subordinate courts to decline jurisdiction in matters involving human/Wildlife conflicts in preference to having them heard before the County Wildlife and Compensation Committees in terms of the provisions of section 25 of the Wildlife conservation and management Act, cap 376 LoK.
6. She went on to state that their objection in the lower court was on jurisdiction but that the learned Magistrate dismissed it for want of merit, hence this appeal seeking to have the order of the trial court set aside and that the Respondent’s suit be struck out for not exhausting the available statutory remedy before coming to the lower court in question.
7. Despite service by the appellant, the Respondent did not answer to the appeal nor file any submissions to urge the same.
Analysis and determination
8. I have considered this appeal carefully on the grounds it is filed. This being a first appeal, it is the duty of the first appellate court to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the finding of the appellate court while bearing in mind that the trial court had the opportunity to see the witnesses.
9. The main question for my determination is whether the learned Magistrate erred in law and in fact in holding that there was no evidence of a claim lodged before the County Wildlife Conservation and Compensation Committee.
10. The other issue for determination is whether the learned trial court erred in law and in fact in issuing a ruling that is contrary to well established and binding authorities.
11. Finally, whether the learned Magistrate erred in law and in fact in basing the body of the ruling on the doctrine of exhaustion and later making a turn around and making orders related to whether the claim was sub-judice.
12. It is trite that a court can only proceed to hear and determine the dispute if it has jurisdiction. If it does not, it has to down its tools as was found in the case of Owners of Motor Vessel “Lillian S” -vs- Caltex Oil Kenya Ltd. [1989] eKLR.
13. Further, in the case of S.K Macharia -vs- Kenya Commercial Bank, Civil Application No. 2 of 2012, the Supreme court stated that jurisdiction can only be conferred on a court by the constitution or statute, and a court cannot therefore otherwise act than within the jurisdiction properly conferred on it.
14. I have read the impugned ruling delivered by the trial court on 12 th March, 2025. He followed the decision of the High court in Meru HCA E158 of 2024 KWS VS Stephen Muchui M’Ndiene citing that it did not oust the jurisdiction of the court but gave the disputant an option to first go to the committees mentioned in section 25 (3) of the Wildlife Conservation and Management Act. He found that the court was open to the interpretation that advances the course of justice rather than the one that restricts it.
15. However, the appellant herein had filed submissions and authorities whereby they relied on the court of appeal decision of KWS -vs- Purity Kanini [suing as the next friend to Edward Koome] civil appeal no. 30 of 2020 [2024] KECA 1127 (KLR) (6 TH September, 2024) which I find was a superior court’s decision to the one followed by the learned Magistrate and which was binding on both courts.
16. The doctrine of stare decisis demands that a superior court’s decision be followed by all lower courts including this court.
17. As to whether the Respondent made a complaint to the requisite committee as per the Act, the Respondent, in paragraphs 4 and 5 of his witness’ statement dated 27 th June, 2024, indicated that he reported the incident to the appellant’s offices in Meru to lodge his complaint and upon investigations the appellant’s officers assisted him to complete the compensation form.
18. He goes on to say in paragraph 5 that after waiting for compensation in vain, he instructed his advocates to issue a demand notice to the appellant and that it drew no response hence he instructed his advocates to file an application for leave to file case in the Magistrate’s court out of time.
19. In the case of KWS -vs- Purity Kanini [Supra, at paragraph 19, stated that it was imperative on the respondent to to give evidence as to what became of their complaint and that if there was a delay on the part of the committee in dealing with the complaint, evidence of any effort of forcing the committee to act by way of a Judicial review.
20. The court further said that their view was that the framers of section 25 of the Act was to cause claimants who had been injured, or those persons whose relatives had died, by actions of wildlife, to benefit from the dispute resolution mechanism under the Act; a mechanism that was less cumbersome and which would benefit from the specialized knowledge on matters human wildlife interaction.
21. Again, with the directives given by the Hon Chief Justice on 23 rd March, 2026, it is mandatory that claimants should first exhaust the statutory dispute resolution mechanism provided for at section 25 of the Act, from the County Wildlife Conservation and Compensation Committee (CWCCC) all through to the National Environment Tribunal (NET) before coming to the court of first instance, thus the Magistrate’s court.
22. In the end I find that the trial court erred in dismissing the preliminary point of objection dated 4 th October, 2024 by holding that the Respondent had not presented any evidence of having been to the CWCCC and was never compensated to necessitate a follow up with a Judicial Review for orders of mandamus, hence entitled to file a case in the Magistrate’s court.
23. I adopt the finding in the KWS -vs- Purity Kananu case and the Hon CJ’s directives aforesaid, that the Respondent had no option of either going to the CWCCC or to Court. In conclusion I find that the claim belonged to the County Wildlife Conservation and Compensation Committee (CWCCC).
24. Consequently, I allow the appeal and direct that the Meru CM Civil case no. E161 of 2024 be and is hereby struck out with no orders as to costs and it be pursued to finality at the appropriate forum indicated before.
Orders accordingly.
Right of appeal 30 days.
Dated, signed and virtually delivered through MS TEAMS platform at Nairobi this 26 th day of May, 2026.
Hon. R. A. Oganyo, Mrs.
Judge of the High court.
In the presence of; -
Alex Nyamai……Court Assistant
Counsel for the appellant……. Ms Seleke holding brief for Mr. Lutta for the appellant.
Counsel for the Respondent…….No Appearance
1. By a statement of defence dated 4 th October, 2024, the Appellant herein, Kenya Wildlife Service, raised a preliminary point of objection that the Chief Magistrate’s court did not have the requisite original jurisdiction to hear and determine the suit by dint of the provisions of Section 25 of the Wildlife Conservation and Management Act, 2013.
2. A claim had been brought by the Respondent herein, in the lower court, vide a plaint dated 27 th June, 2024 seeking general damages as well as other reliefs, following an alleged attack by an elephant on 23 rd June, 2018, within his home vicinity of Karia location in IGOJI SUB COUNTY, as he went about his normal daily activities.
3. The preliminary point of objection was canvassed by way of written submissions and a ruling date set for the 5 th March, 2025. The same was however delivered on the 12 th March, 2025, whereby the learned Chief Magistrate found the preliminary point of objection to be unmerited and dismissed it with no orders as to costs.
4. The appellant was aggrieved by the decision and has now appealed to this court on the following grounds; -
i The Learned Trial Magistrate erred in law and in fact in holding that there was no evidence of a claim lodged before the County Wildlife Conservation and Compensation Committee when the Plaintiff admitted the same in his Witness Statement and filed the documents lodged with the Committee.
ii The Learned Trial Magistrate erred in law and in fact in issuing a ruling that was contrary to the judgment and directions issued by the High Court at Meru on 13 th February 2025 in HCCA E158 OF 2023 KENYA WILDLIFE SERVICE -VSSTEPHEN MUCHUI M’NDIENE.
iii The Learned Trial Magistrate erred in law and in fact in issuing a ruling that is contrary to well established and binding authorities.
iv The Learned Trial Magistrate erred in law and in fact in issuing a ruling that was contrary to the issue raised and submitted upon by the Appellant in its Written Submissions.
v The Learned Trial Magistrate erred in law and in fact in basing the body of the ruling on the doctrine of exhaustion and later making a turn around and making orders related to whether the claim was sub-judice.
5. The matter was placed before me on 20 th May, 2026 for directions on how to urge the appeal when learned counsel for the appellant, Ms Seleke, holding brief for Lutta for the appellant, stated that a notice was issued, dated 23 rd March, 2026, by her Ladyship the Honorable Chief Justice, asking subordinate courts to decline jurisdiction in matters involving human/Wildlife conflicts in preference to having them heard before the County Wildlife and Compensation Committees in terms of the provisions of section 25 of the Wildlife conservation and management Act, cap 376 LoK.
6. She went on to state that their objection in the lower court was on jurisdiction but that the learned Magistrate dismissed it for want of merit, hence this appeal seeking to have the order of the trial court set aside and that the Respondent’s suit be struck out for not exhausting the available statutory remedy before coming to the lower court in question.
7. Despite service by the appellant, the Respondent did not answer to the appeal nor file any submissions to urge the same.
Analysis and determination
8. I have considered this appeal carefully on the grounds it is filed. This being a first appeal, it is the duty of the first appellate court to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the finding of the appellate court while bearing in mind that the trial court had the opportunity to see the witnesses.
9. The main question for my determination is whether the learned Magistrate erred in law and in fact in holding that there was no evidence of a claim lodged before the County Wildlife Conservation and Compensation Committee.
10. The other issue for determination is whether the learned trial court erred in law and in fact in issuing a ruling that is contrary to well established and binding authorities.
11. Finally, whether the learned Magistrate erred in law and in fact in basing the body of the ruling on the doctrine of exhaustion and later making a turn around and making orders related to whether the claim was sub-judice.
12. It is trite that a court can only proceed to hear and determine the dispute if it has jurisdiction. If it does not, it has to down its tools as was found in the case of Owners of Motor Vessel “Lillian S” -vs- Caltex Oil Kenya Ltd. [1989] eKLR.
13. Further, in the case of S.K Macharia -vs- Kenya Commercial Bank, Civil Application No. 2 of 2012, the Supreme court stated that jurisdiction can only be conferred on a court by the constitution or statute, and a court cannot therefore otherwise act than within the jurisdiction properly conferred on it.
14. I have read the impugned ruling delivered by the trial court on 12 th March, 2025. He followed the decision of the High court in Meru HCA E158 of 2024 KWS VS Stephen Muchui M’Ndiene citing that it did not oust the jurisdiction of the court but gave the disputant an option to first go to the committees mentioned in section 25 (3) of the Wildlife Conservation and Management Act. He found that the court was open to the interpretation that advances the course of justice rather than the one that restricts it.
15. However, the appellant herein had filed submissions and authorities whereby they relied on the court of appeal decision of KWS -vs- Purity Kanini [suing as the next friend to Edward Koome] civil appeal no. 30 of 2020 [2024] KECA 1127 (KLR) (6 TH September, 2024) which I find was a superior court’s decision to the one followed by the learned Magistrate and which was binding on both courts.
16. The doctrine of stare decisis demands that a superior court’s decision be followed by all lower courts including this court.
17. As to whether the Respondent made a complaint to the requisite committee as per the Act, the Respondent, in paragraphs 4 and 5 of his witness’ statement dated 27 th June, 2024, indicated that he reported the incident to the appellant’s offices in Meru to lodge his complaint and upon investigations the appellant’s officers assisted him to complete the compensation form.
18. He goes on to say in paragraph 5 that after waiting for compensation in vain, he instructed his advocates to issue a demand notice to the appellant and that it drew no response hence he instructed his advocates to file an application for leave to file case in the Magistrate’s court out of time.
19. In the case of KWS -vs- Purity Kanini [Supra, at paragraph 19, stated that it was imperative on the respondent to to give evidence as to what became of their complaint and that if there was a delay on the part of the committee in dealing with the complaint, evidence of any effort of forcing the committee to act by way of a Judicial review.
20. The court further said that their view was that the framers of section 25 of the Act was to cause claimants who had been injured, or those persons whose relatives had died, by actions of wildlife, to benefit from the dispute resolution mechanism under the Act; a mechanism that was less cumbersome and which would benefit from the specialized knowledge on matters human wildlife interaction.
21. Again, with the directives given by the Hon Chief Justice on 23 rd March, 2026, it is mandatory that claimants should first exhaust the statutory dispute resolution mechanism provided for at section 25 of the Act, from the County Wildlife Conservation and Compensation Committee (CWCCC) all through to the National Environment Tribunal (NET) before coming to the court of first instance, thus the Magistrate’s court.
22. In the end I find that the trial court erred in dismissing the preliminary point of objection dated 4 th October, 2024 by holding that the Respondent had not presented any evidence of having been to the CWCCC and was never compensated to necessitate a follow up with a Judicial Review for orders of mandamus, hence entitled to file a case in the Magistrate’s court.
23. I adopt the finding in the KWS -vs- Purity Kananu case and the Hon CJ’s directives aforesaid, that the Respondent had no option of either going to the CWCCC or to Court. In conclusion I find that the claim belonged to the County Wildlife Conservation and Compensation Committee (CWCCC).
24. Consequently, I allow the appeal and direct that the Meru CM Civil case no. E161 of 2024 be and is hereby struck out with no orders as to costs and it be pursued to finality at the appropriate forum indicated before.
Orders accordingly.
Right of appeal 30 days.
Dated, signed and virtually delivered through MS TEAMS platform at Nairobi this 26 th day of May, 2026.
Hon. R. A. Oganyo, Mrs.
Judge of the High court.
In the presence of; -
Alex Nyamai……Court Assistant
Counsel for the appellant……. Ms Seleke holding brief for Mr. Lutta for the appellant.
Counsel for the Respondent…….No Appearance