RULING ON COSTS.
1. By a memorandum of appeal dated 30 th January, 2025 but filed on 31 st January, 2025, the appellant, viz, KENYA WILDLIFE SERVICE, being aggrieved and/or dissatisfied with the Ruling delivered on 13th December, 2024 in Maua CMCC No. E330 of 2024 by the Hon. Elizabeth K. Chesoni , Resident Magistrate, hereby appeals to this High Court of Kenya, Meru against the whole of the said Ruling/decision on the following grounds:-
a THAT the Learned Trial Magistrate erred in law and in fact in dismissing the Appellant's Preliminary Objection dated 3rd October, 2024 challenging jurisdiction of the Court to hear and determine the Respondent's claim.
b THAT the Learned Trial Magistrate erred in law and in fact in making a finding that she had jurisdiction to determine Maua MCCC No. E330 of 2024 contrary to the express Provisions of Section 25 (4) and (5) of the Wildlife Conservation & Management Act, 2013 that vests such mandate in the County Wildlife Conservation and Compensation Committee.
c THAT the Learned Trial Magistrate erred in law, and in fact in disregarding the most recent decision of the Court of Appeal delivered on 6/9/2024 in Kenya Wildlife Service -vs- Kanini (Suing as the Next Friend to Edward Koome) [2024] KЕСА 1127 eKLR that settled with finality the purported contradictory decisions from the Superior Court on whether or not claims arising from human/wildlife conflict ought to be first lodged with relevant County Wildlife Conservation and Compensation Committees or Courts of law, which decision was/is binding on the Trial Court.
d THAT the Learned Trial Magistrate erred in law and in fact in failing to uphold the doctrine of exhaustion that was upheld by the Supreme Court in Albert Charembo Mumba & 7 Others -vs- Maurice Munyao & 148 Others (2019) eKLR.
e THAT the learned Trial Magistrate erred in law and in fact in failing to distinguish the use of the word "may" used in Section 25(4) of the Wildlife Conservation & Management Act, 2013 which in ordinary parlance meant that the victim retained the option of pursuing compensation or not because if the word "shall" had been used instead of "may" it would have meant that it became compulsory/mandatory for a victim of human/wildlife conflict to sue for compensation.
2. The Appellant therefore sought for orders that; -
i) This Appeal be allowed, and, the Ruling of the Learned Trial Magistrate dated 13th December, 2024 be set aside.
ii) The Appellant's Preliminary Objection dated 3rd October, 2024 be upheld.
iii) The costs of this Appeal and the proceedings in the Trial Court be provided for.
3. It is noteworthy that the appeal was never served on the Respondent and thereafter, on the 6 th October, 2025 a notice of withdrawal, dated 25 th September, 2025, was filed.
4. It sought that the Appellant, KENYA WILDLIFE SERVICE herein, does withdraw the entire Appeal against the Respondent SHADRACK NTHOITHA with no orders as to costs.
5. Earlier this morning, the learned Counsel, Mrs Wachira asked this court to adopt the notice of withdrawal as filed but learned Counsel Miss Aketch for the Respondent, sought for costs in allowing the withdrawal of the appeal, citing that despite not having been served with the appeal, they were in attendance this morning. Hence, they have participated in the appeal.
6. In a rejoinder, the Appellant’s learned counsel stated that the appeal was never served on the Respondent in order to participate and that in any event, the appellant is a state corporation, who cannot be condemned in paying costs.
Analysis and determination
7. I have considered the application as made, seeking adoption of the notice of withdrawal in its entirety. The sole issue arising is whether the Respondent is entitled to costs upon the withdrawal of the appeal.
8. Section 27of the Civil Procedure Act, makes provision on costs. It states, thus; -
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
9. It is not disputed that the Respondent was never served in this appeal in order that they could be expected to participate in the appeal by way of filing a response thereon. It is also clear that the Respondent was not served to attend today’s proceedings as there is no affidavit of service to that effect.
10. For a party to state that they have incurred costs in a suit or incidental thereto, it was incumbent on the Respondent to demonstrate as much by showing to this court the extent of their participation. By saying that they were in attendance in the case this morning, is not enough, in my considered view. There was no evidence of invitation from the appellant’s side to the Respondent’s side.
11. In any event, there is a directive by the Hon. CJ dated 23 rd March, 2026 affirming the doctrine of exhaustion, as held in the case of Kenya Wildlife Service -vs- Kanini (Suing as the Next Friend to Edward Koome) [2024] KЕСА 1127 eKLR, that Judicial officers should strictly uphold the doctrine of exhaustion and decline jurisdiction in matters where parties have not first invoked and exhausted the statutory mechanism provided for in section 25 of the Wildlife Conservation and management Act, cap 376 laws of Kenya.
12. In the end, I allow the appellant to withdraw the appeal in its entirety but with no orders as to costs, since the Respondent has not proved that he incurred costs in this appeal and/or any incidental to it.
Orders accordingly.
Right of appeal 30 days.
Dated, signed and delivered virtually on this 21 st day of May, 2026.
Hon. Roseline A. Oganyo, Mrs.
Judge.
In the presence of; -
Court Assistant…Alex Nyamai
Appellant called…….
Respondent called…….
Counsels in attendance ;
Mrs. Wachira for the Appellant.
Miss Aketch for the Respondent.
1. By a memorandum of appeal dated 30 th January, 2025 but filed on 31 st January, 2025, the appellant, viz, KENYA WILDLIFE SERVICE, being aggrieved and/or dissatisfied with the Ruling delivered on 13th December, 2024 in Maua CMCC No. E330 of 2024 by the Hon. Elizabeth K. Chesoni , Resident Magistrate, hereby appeals to this High Court of Kenya, Meru against the whole of the said Ruling/decision on the following grounds:-
a THAT the Learned Trial Magistrate erred in law and in fact in dismissing the Appellant's Preliminary Objection dated 3rd October, 2024 challenging jurisdiction of the Court to hear and determine the Respondent's claim.
b THAT the Learned Trial Magistrate erred in law and in fact in making a finding that she had jurisdiction to determine Maua MCCC No. E330 of 2024 contrary to the express Provisions of Section 25 (4) and (5) of the Wildlife Conservation & Management Act, 2013 that vests such mandate in the County Wildlife Conservation and Compensation Committee.
c THAT the Learned Trial Magistrate erred in law, and in fact in disregarding the most recent decision of the Court of Appeal delivered on 6/9/2024 in Kenya Wildlife Service -vs- Kanini (Suing as the Next Friend to Edward Koome) [2024] KЕСА 1127 eKLR that settled with finality the purported contradictory decisions from the Superior Court on whether or not claims arising from human/wildlife conflict ought to be first lodged with relevant County Wildlife Conservation and Compensation Committees or Courts of law, which decision was/is binding on the Trial Court.
d THAT the Learned Trial Magistrate erred in law and in fact in failing to uphold the doctrine of exhaustion that was upheld by the Supreme Court in Albert Charembo Mumba & 7 Others -vs- Maurice Munyao & 148 Others (2019) eKLR.
e THAT the learned Trial Magistrate erred in law and in fact in failing to distinguish the use of the word "may" used in Section 25(4) of the Wildlife Conservation & Management Act, 2013 which in ordinary parlance meant that the victim retained the option of pursuing compensation or not because if the word "shall" had been used instead of "may" it would have meant that it became compulsory/mandatory for a victim of human/wildlife conflict to sue for compensation.
2. The Appellant therefore sought for orders that; -
i) This Appeal be allowed, and, the Ruling of the Learned Trial Magistrate dated 13th December, 2024 be set aside.
ii) The Appellant's Preliminary Objection dated 3rd October, 2024 be upheld.
iii) The costs of this Appeal and the proceedings in the Trial Court be provided for.
3. It is noteworthy that the appeal was never served on the Respondent and thereafter, on the 6 th October, 2025 a notice of withdrawal, dated 25 th September, 2025, was filed.
4. It sought that the Appellant, KENYA WILDLIFE SERVICE herein, does withdraw the entire Appeal against the Respondent SHADRACK NTHOITHA with no orders as to costs.
5. Earlier this morning, the learned Counsel, Mrs Wachira asked this court to adopt the notice of withdrawal as filed but learned Counsel Miss Aketch for the Respondent, sought for costs in allowing the withdrawal of the appeal, citing that despite not having been served with the appeal, they were in attendance this morning. Hence, they have participated in the appeal.
6. In a rejoinder, the Appellant’s learned counsel stated that the appeal was never served on the Respondent in order to participate and that in any event, the appellant is a state corporation, who cannot be condemned in paying costs.
Analysis and determination
7. I have considered the application as made, seeking adoption of the notice of withdrawal in its entirety. The sole issue arising is whether the Respondent is entitled to costs upon the withdrawal of the appeal.
8. Section 27of the Civil Procedure Act, makes provision on costs. It states, thus; -
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
9. It is not disputed that the Respondent was never served in this appeal in order that they could be expected to participate in the appeal by way of filing a response thereon. It is also clear that the Respondent was not served to attend today’s proceedings as there is no affidavit of service to that effect.
10. For a party to state that they have incurred costs in a suit or incidental thereto, it was incumbent on the Respondent to demonstrate as much by showing to this court the extent of their participation. By saying that they were in attendance in the case this morning, is not enough, in my considered view. There was no evidence of invitation from the appellant’s side to the Respondent’s side.
11. In any event, there is a directive by the Hon. CJ dated 23 rd March, 2026 affirming the doctrine of exhaustion, as held in the case of Kenya Wildlife Service -vs- Kanini (Suing as the Next Friend to Edward Koome) [2024] KЕСА 1127 eKLR, that Judicial officers should strictly uphold the doctrine of exhaustion and decline jurisdiction in matters where parties have not first invoked and exhausted the statutory mechanism provided for in section 25 of the Wildlife Conservation and management Act, cap 376 laws of Kenya.
12. In the end, I allow the appellant to withdraw the appeal in its entirety but with no orders as to costs, since the Respondent has not proved that he incurred costs in this appeal and/or any incidental to it.
Orders accordingly.
Right of appeal 30 days.
Dated, signed and delivered virtually on this 21 st day of May, 2026.
Hon. Roseline A. Oganyo, Mrs.
Judge.
In the presence of; -
Court Assistant…Alex Nyamai
Appellant called…….
Respondent called…….
Counsels in attendance ;
Mrs. Wachira for the Appellant.
Miss Aketch for the Respondent.