1. The Notice of Motion herein dated 19/7/2024 is for an order of Mandamus directed at the Respondents to compel them to immediately release KShs 5,000,000/= to the ex-parte applicants’ advocates.
2. The ex-parte applicants approached this court through a chamber summons dated 18/7/2024 seeking leave to apply for judicial review orders of mandamus to issue against the 1st respondent to compel it to pay KShs 5,000,000/= recommended by the 2nd respondent and approved by the 3rd respondent as compensation for the death of the deceased after being attacked and injured by wildlife and for the amount to be paid within 14 days of the date of service upon it of the order.
3. Alongside the chamber summons application, the ex-parte applicant filed a statutory statement dated 18/7/2024 reiterating the above facts, the legal foundation of the application, and the reliefs sought.
4. Leave was granted with directions that the main Notice of Motion be filed within 21 days and served and for the respondents to file their responses within 21 days of service. The main Notice of Motion was filed as directed and it is what is under consideration herein.
5. The grounds in support of the motion are contained in the Statutory Statement dated 18/7/2024. In the Statutory Statement, the order of mandamus sought is indicated to be directed at the 1st respondent, the Kenya Wildlife Service (KWS) to pay within 14 days of the order, the ex-parte applicant the sum of KShs 5,000,000/=recommended by the 2nd respondent and approved by the 3rd respondent as compensation for the death of the deceased Mumbo Mwavuo after being attacked by wildlife.
6. It is the ex-parte applicants’ case that they are the legal representatives and administrators of the estate of the deceased Mumbo Mwavuo, who was attacked by a buffalo within Vigurungani area while walking home on 6/8/2021 causing him fatal injuries. The ex-parte applicants blamed the 1st respondent Kenya Wildlife Service (KWS) for negligence and breach of statutory duty as provided for under the Wildlife Conservation and Management Act. They lodged a claim for compensation with KWS. It is their case that the 1st respondent convened meetings and the claim was approved in the sum of KShs 5,000,000/= but the same had never been settled by the 1st respondent in spite of the National Treasury allocating funds for the same and follow ups by the ex-parte applicants.
7. The application is supported by the verifying affidavit of Kikwekwe Mwavuo Mumbo and Chibuya Mwavuo sowrn on 18/7/2024. in which they have expounded on the grounds in support of the motion
8. The application is opposed by the 1st respondent KWS through a replying affidavit sworn by Derrick Karinga, its Legal Officer on 18/2/2025.
9. He deposes that it is not the duty of the 1st Respondent under section 7 of the Wildlife Conservation and Management Act, 2013 and it is not within the Respondent's statutory mandate to compensate the ex parte Applicant.
10. He deposes that the 2nd Respondent, a County Wildlife Conservation Committee is established under section 18 of the Wildlife Conservation and Management Act, (Cap. 376) Laws of Kenya (WCMA). It is mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under sections 19(1) and 25(2) of the WCMA and that the 1st respondent KWS is only the secretary to the County Wildlife Conservation Committee as provided for under section 18(2) of the Act.
11. He acknowledges that the ex parte Applicant reported to the 1st Respondent's Kwale Station, an incident of an alleged attack causing fatal injuries upon Mumbo Mwavuo (Deceased) by a buffalo 6/8/2021. The ex parte applicant was issued with claim compensation forms from the Ministry of Tourism and Wildlife, which he filled and returned to the 1st respondent for processing, thus lodging the claim for compensation under section 25 (1) of the WCMA.
12. The legal officer deposes further that section 25(3) of the Wildlife Conservation and Management Act places the role of payment of compensation squarely on the Cabinet Secretary, Ministry of Tourism and Wildlife. That in effect, the ex parte Applicant is asking this court to be the 2nd Respondent, perform the 2nd Respondent's functions under section 19 of the WCMA by reviewing the claim and recommending the same for compensation and further for this court to take over the function of the Cabinet Secretary under section 25(3) of the Act by considering recommendations and approving the same and thereby effectively asking this court to ignore the strict provisions of section 25(3) of the WCMA and in total contravention of this provision, compel the 1st Respondent to pay compensation.
13. Further that it is not the 1st Respondent's duty to compensate the ex-parte applicant and by the ex-parte applicant moving this court to compel the 1st respondent to make such payments, the ex parte applicant is asking the court to act beyond its powers. Consequently, such reliefs if granted, would amount to an illegality.
14. That the ex-parte applicant is asking the to impose on the 1st respondent a duty which has not only not been statutorily bestowed upon the 1st respondent but is in fact a preserve of another entity, the Cabinet Secretary, Ministry of Tourism and Wildlife. That therefore, what the ex-parte applicant is asking of the court is tantamount to amendment of legislation through imposition of a duty.
15. For those reasons, it is the contention by KWS that the application is fatally defective and ought to be dismissed with costs.
16. The application was disposed of by way of written submissions filed by learned counsels for the ex-parte applicants and the 1st respondent. Learned counsel for the ex-parte applicant also filed authorities in support of the application.
17. The ex-parte applicants raised the following issues for determination by this court:
a. whether the 1st respondent is statutorily bound to manage national parks and reserves.
b. whether it is within the respondents’ mandate to consider, approve and compensate the applicants.
c. what the timelines provided for under the law are?
d. whether the respondents’ inaction is contrary to the constitution, statute and rules of natural justice and fairness.
e. whether the ex-parte applicants are entitled to the orders of mandamus as sought.
18. Learned counsel for KWS on his part has raised one substantive issue for determination, that is whether the 1st respondent is a proper party to these proceedings and if so, whether the orders sought by the ex-parte applicants are available to them.
19. I do not find the 1st and 3rd issues raised by the ex-parte applicants to be in contention at all. These are provided for under the law and this court need not consider them as issues for determination other than restating the law as it is.
20. In his submissions, learned counsel for the ex-parte applicants deposes that the respondents have been lying to the ex-parte applicants that the claim was approved for KShs 5,000,000/= and yet it has now admitted through its replying affidavit that no meeting to consider the issue of compensation has ever been held. However, learned counsel has not, and I have not seen in the verifying affidavit or even the Statutory statement evidence of any such correspondence between the 1st respondent and the ex-parte applicants.
21. Learned counsel further submits that the mandate to pay the compensation is upon KWS, the 1st respondent as the Cabinet Secretary only pays the money on behalf of the KWS as was held by the Court of Appeal in the case of Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR). He also cited the case of Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] KESC 48 (KLR) to support his submissions.
22. Learned counsel for the 1st respondent KWS submits that it is not disputed that the ex parte applicants made their report of the incident of death caused by a buffalo attack upon the deceased. They properly lodged a claim for compensation with the 2nd Respondent through the Kwale County Wildlife Compensation Committee,
23. With respect to the prayer that the 1st respondent be compelled by an order of mandamus to pay the compensation, learned counsel submits that the same cannot issue as it is not the statutory mandate of KWS to pay such compensation, the mandate having been statutorily placed upon the 3rd respondent as the 1st respondent does not owe a statutory duty to pay compensation to the ex-parte applicants. Learned counsel refers to sections 6 and 7 of the WCMA for the establishment and functions of the KWS respectively and submits that there is no duty placed upon the KWS to compensate or pay compensation on claims resulting from loss or damage caused by wildlife. He has cited the case of Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] eKLR to support the submission that the order of mandamus must command no more than the party against whom the application is made is legally bound to perform and further that a party in a judicial review seeking an order of mandamus must show the existence of a statutory duty conferred or invested by statute upon some person, body of persons or tribunal which such person, body of persons or tribunal has failed to perform.
24. He has also cited the case of Republic v County Government of Nairobi & 2 others Ex-Parte Kingpost Limited [2021] eKLR the court in declining to grant orders of mandamus against the 3rd Respondent (County Executive Member, Lands and Urban Planning) stated that the 3rd Respondent not being the accounting officer (who was statutorily bound to satisfy a court decree) had no role in the proceedings and had been improperly enjoined. The Court stated:
“Whereas the Ex-parte Applicant is correct that the 3rd Respondent is the line minister in matters land, it is apparent that he has no role in these proceedings. This is a case of mis-joinder.”
25. Learned counsel submits further that no decision has been made by the 2nd and 3rd respondents compelling the 1st respondent to pay the 1st applicant the compensation of KShs 5 million. He submits that the 1st respondent bears no statutory duty to pay the ex-parte applicants the compensation.
26. Learned counsel submits that it will be arbitrary and unlawful for this court to order that the 1st respondent should take up the role of the 2nd respondent, and compensate the ex-parte applicants,
27. I have considered the statutory statement filed alongside the chamber summons and which I trust was served after the order for leave was granted, the reliefs sought therein and the grounds in support thereof and the affidavit supporting the notice of motion and the submissions by learned counsels for the ex-parte applicant and the 1st respondent.
28. Learned counsel for the 1st respondent submits that the issue for determination is whether the 1st respondent is a proper party in these proceedings and if so, whether the orders sought against them are available to the ex-parte applicant. His answer is in the negative.
29. For the court, the issue for determination is whether an order of mandamus should issue from this court to compel the 1st respondent to pay the ex parte applicants the sum of KShs. 5 million for the death of their daughter as a result of an attack by the buffalo on 6/8/2021. The other issues raised by the ex-parte applicants and the 1st respondent are subsumed within the issue framed by the court.
30. Compensation for personal injury or death or damage to property under the WCM Act is provided for in section 25 as follows:
(1) Where any person suffers any bodily injury or is killed by any wildlife listed under the Third Schedule, the person injured, or in the case of a deceased person, the personal representative or successor or assign, may launch a claim to the County Wildlife Conservation and Compensation Committee within the jurisdiction established under this Act.
(2) The County Wildlife Conservation and Compensation Committee established under section 18 shall verify a claim made under subsection (1) and upon verification, submit the claim to the Cabinet Secretary together with its recommendations thereon.
(3) The Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate, pay compensation to the claimant as follows—
a. in the case of death, five million shillings;
b. in the case of injury occasioning permanent disability, three million shillings;
c. in the case of any other injury, a maximum of two million shillings, depending on the extent of injury.
(4) …
(5) …
(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) …
31. The ex-parte applicant’s prayer is for an order of mandamus to issue from this court to compel the 1st respondent to pay the ex parte applicant the sum of KShs. 5 million for the death of Mumbo Chivuo.
32. The 2nd and 3rd respondents did not respond to the application.
33. The 1st respondent’s response to the application is primarily based on the argument that the statutory mandate to pay compensation is not upon KWS but the Cabinet Secretary for Tourism and Wildlife. Learned counsel for the KWS has made very extensive submissions on the same. However, he never addressed the decision of the Supreme Court in Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No 11 of 2015 (2018) eKLR which in relation to the issue he raises observed as follows at paragraph 66:-
“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 revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation for damage made by animals and wildlife...The Wildlife Act gives responsibility to Kenya Wildlife Service as the park revenue collector to compensate for damage occasioned by wild animals."
34. Earlier the Court of Appeal succinctly deal with the issue in Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR). The court addressed the issue as follows:
“Before we conclude, we would like to observe that the appellant has dwelt at length in its submission on an issue that was not raised before the High Court at all. This is the question as to whether it has the duty to pay compensation or not. We must admit we found this submission self-defeating.
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 this point as succinctly pronounced in Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited [2014] KECA 330 (KLR) among 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 appellant as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.
If there is any conflict of responsibilities or performance of duty between the CEO and the cabinet secretary, that is upon the two to sort out, but that should not be used to deny a party compensation duly owed to it.”
35. These holdings by the superior courts have settled the issue of who between the KWS and the Cabinet Secretary is responsible for making the compensation. For me, the Court of Appeal found that when it comes to the issue of compensation, KWS and the Cabinet Secretary play the same role. They are conjoined and will not be separated, so that a claim against the Cabinet Secretary is a claim against the KWS. The decision has been applied in the High Court decisions in Republic v Kenya Wildlife Service & 2 others and Muhia (Exparte Applicant) [2024] KEHC 8086 (KLR) among others. I am bound by the said decisions of the superior courts and I do not know whether learned counsel wishes this court to depart from that holding which is not possible. I will therefore not belabour that point any more other than to find that the response by the 1st respondent to the application that KWS has no statutory mandate to pay compensation to victims of wildlife damage is without merit.
36. Both parties are agreed that the ex-parte applicant properly lodged a claim for compensation with the 2nd Respondent, the Kwale County Wildlife Compensation Committee sometime in 2021. The ex-parte applicant has not been informed of the outcome of her complaint.
37. Section 106(2)(c) of the Wildlife Conservation and Management Act, provides that any person who has reason to believe that the provisions of this Act have been, are being, or are about to be violated, may petition the High Court for the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act. It is the ex-parte applicant’s case that the respondents have failed to act on her claim. From the 1st respondent’s replying affidavit, it is not clear what has become of the ex-parte applicant’s claim, yet the 1st respondent is the secretary of the committee. Without communication from the respondents to the ex-parte applicants of what became of their claim since they launched (this is the word used in the Act) it in 2021, I am satisfied that they were right in filing the present application seeking an order of mandamus against the respondents as provided for under section 106 of the Act.
38. Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations provides the timelines for consideration and payment of claims as follows:
1) On receipt of a claim for bodily injury or death, the Committee shall within thirty days of such receipt verify the claim and submit it to the Cabinet Secretary together with its recommendations.
2) Upon receipt of a claim for bodily injury or death, the Cabinet Secretary shall consider the recommendation of the Committee and make payments within thirty days of receipt of the claim.
39. The statutory timelines for the committee and the Cabinet Secretary to act are as provided above. Each is required to make a decision within thirty days. Certainly, the timelines within which the 1st respondent acting through the committee and the Cabinet secretary is required to act have long passed.
40. There is no evidence that the compensation committee of which the 1st respondent is the secretary ever made any recommendation for payment to the 2nd respondent who is mandated under the Act and compensation regulations to make payment within 30 days of being given the green light by the compensation committee. In view of the non-action by the WMCC the only option available to the ex parte applicant to get compensation for the personal injury sustained is to compel the 1st respondent through a judicial review order of mandamus as was held in the case of KWS vs Purity Kanini (suing as the next friend to EDWARD KOOME) Nyeri Civil Appeal No. 30 of 2020.
41. It follows that the respondents are in violation of the Act with respect to the timelines for payment of the claim and the ex-parte applicants are therefore properly before this court seeking the order of mandamus to compel the respondents to pay them the compensation.
42. Consequently, I find that the application by the ex-parte applicants has merit and the same is allowed in terms that the 1st respondent is hereby compelled by an order of Mandamus to pay KSh.5,000,000/= to the ex-parte applicants as compensation for the death of Mumbo Mwavuo as a result of an attack by a buffalo.
43. The costs of this application are awarded to the ex-parte applicants.
44. Orders accordingly.
Judgment delivered, dated and signed in Open Court on the Virtual Platfrom Teams this 22nd day of July 2025.
ANDAYI W.F.
JUDGE
In the presence of: -
Muriuki holding brief for Opondo for the Ex-parte applicant
No appearance for the 1st Respondent
No appearance for the 2nd and 3rd Respondents.
Ummu - Court Assistant
2. The ex-parte applicants approached this court through a chamber summons dated 18/7/2024 seeking leave to apply for judicial review orders of mandamus to issue against the 1st respondent to compel it to pay KShs 5,000,000/= recommended by the 2nd respondent and approved by the 3rd respondent as compensation for the death of the deceased after being attacked and injured by wildlife and for the amount to be paid within 14 days of the date of service upon it of the order.
3. Alongside the chamber summons application, the ex-parte applicant filed a statutory statement dated 18/7/2024 reiterating the above facts, the legal foundation of the application, and the reliefs sought.
4. Leave was granted with directions that the main Notice of Motion be filed within 21 days and served and for the respondents to file their responses within 21 days of service. The main Notice of Motion was filed as directed and it is what is under consideration herein.
5. The grounds in support of the motion are contained in the Statutory Statement dated 18/7/2024. In the Statutory Statement, the order of mandamus sought is indicated to be directed at the 1st respondent, the Kenya Wildlife Service (KWS) to pay within 14 days of the order, the ex-parte applicant the sum of KShs 5,000,000/=recommended by the 2nd respondent and approved by the 3rd respondent as compensation for the death of the deceased Mumbo Mwavuo after being attacked by wildlife.
6. It is the ex-parte applicants’ case that they are the legal representatives and administrators of the estate of the deceased Mumbo Mwavuo, who was attacked by a buffalo within Vigurungani area while walking home on 6/8/2021 causing him fatal injuries. The ex-parte applicants blamed the 1st respondent Kenya Wildlife Service (KWS) for negligence and breach of statutory duty as provided for under the Wildlife Conservation and Management Act. They lodged a claim for compensation with KWS. It is their case that the 1st respondent convened meetings and the claim was approved in the sum of KShs 5,000,000/= but the same had never been settled by the 1st respondent in spite of the National Treasury allocating funds for the same and follow ups by the ex-parte applicants.
7. The application is supported by the verifying affidavit of Kikwekwe Mwavuo Mumbo and Chibuya Mwavuo sowrn on 18/7/2024. in which they have expounded on the grounds in support of the motion
8. The application is opposed by the 1st respondent KWS through a replying affidavit sworn by Derrick Karinga, its Legal Officer on 18/2/2025.
9. He deposes that it is not the duty of the 1st Respondent under section 7 of the Wildlife Conservation and Management Act, 2013 and it is not within the Respondent's statutory mandate to compensate the ex parte Applicant.
10. He deposes that the 2nd Respondent, a County Wildlife Conservation Committee is established under section 18 of the Wildlife Conservation and Management Act, (Cap. 376) Laws of Kenya (WCMA). It is mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under sections 19(1) and 25(2) of the WCMA and that the 1st respondent KWS is only the secretary to the County Wildlife Conservation Committee as provided for under section 18(2) of the Act.
11. He acknowledges that the ex parte Applicant reported to the 1st Respondent's Kwale Station, an incident of an alleged attack causing fatal injuries upon Mumbo Mwavuo (Deceased) by a buffalo 6/8/2021. The ex parte applicant was issued with claim compensation forms from the Ministry of Tourism and Wildlife, which he filled and returned to the 1st respondent for processing, thus lodging the claim for compensation under section 25 (1) of the WCMA.
12. The legal officer deposes further that section 25(3) of the Wildlife Conservation and Management Act places the role of payment of compensation squarely on the Cabinet Secretary, Ministry of Tourism and Wildlife. That in effect, the ex parte Applicant is asking this court to be the 2nd Respondent, perform the 2nd Respondent's functions under section 19 of the WCMA by reviewing the claim and recommending the same for compensation and further for this court to take over the function of the Cabinet Secretary under section 25(3) of the Act by considering recommendations and approving the same and thereby effectively asking this court to ignore the strict provisions of section 25(3) of the WCMA and in total contravention of this provision, compel the 1st Respondent to pay compensation.
13. Further that it is not the 1st Respondent's duty to compensate the ex-parte applicant and by the ex-parte applicant moving this court to compel the 1st respondent to make such payments, the ex parte applicant is asking the court to act beyond its powers. Consequently, such reliefs if granted, would amount to an illegality.
14. That the ex-parte applicant is asking the to impose on the 1st respondent a duty which has not only not been statutorily bestowed upon the 1st respondent but is in fact a preserve of another entity, the Cabinet Secretary, Ministry of Tourism and Wildlife. That therefore, what the ex-parte applicant is asking of the court is tantamount to amendment of legislation through imposition of a duty.
15. For those reasons, it is the contention by KWS that the application is fatally defective and ought to be dismissed with costs.
16. The application was disposed of by way of written submissions filed by learned counsels for the ex-parte applicants and the 1st respondent. Learned counsel for the ex-parte applicant also filed authorities in support of the application.
17. The ex-parte applicants raised the following issues for determination by this court:
a. whether the 1st respondent is statutorily bound to manage national parks and reserves.
b. whether it is within the respondents’ mandate to consider, approve and compensate the applicants.
c. what the timelines provided for under the law are?
d. whether the respondents’ inaction is contrary to the constitution, statute and rules of natural justice and fairness.
e. whether the ex-parte applicants are entitled to the orders of mandamus as sought.
18. Learned counsel for KWS on his part has raised one substantive issue for determination, that is whether the 1st respondent is a proper party to these proceedings and if so, whether the orders sought by the ex-parte applicants are available to them.
19. I do not find the 1st and 3rd issues raised by the ex-parte applicants to be in contention at all. These are provided for under the law and this court need not consider them as issues for determination other than restating the law as it is.
20. In his submissions, learned counsel for the ex-parte applicants deposes that the respondents have been lying to the ex-parte applicants that the claim was approved for KShs 5,000,000/= and yet it has now admitted through its replying affidavit that no meeting to consider the issue of compensation has ever been held. However, learned counsel has not, and I have not seen in the verifying affidavit or even the Statutory statement evidence of any such correspondence between the 1st respondent and the ex-parte applicants.
21. Learned counsel further submits that the mandate to pay the compensation is upon KWS, the 1st respondent as the Cabinet Secretary only pays the money on behalf of the KWS as was held by the Court of Appeal in the case of Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR). He also cited the case of Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] KESC 48 (KLR) to support his submissions.
22. Learned counsel for the 1st respondent KWS submits that it is not disputed that the ex parte applicants made their report of the incident of death caused by a buffalo attack upon the deceased. They properly lodged a claim for compensation with the 2nd Respondent through the Kwale County Wildlife Compensation Committee,
23. With respect to the prayer that the 1st respondent be compelled by an order of mandamus to pay the compensation, learned counsel submits that the same cannot issue as it is not the statutory mandate of KWS to pay such compensation, the mandate having been statutorily placed upon the 3rd respondent as the 1st respondent does not owe a statutory duty to pay compensation to the ex-parte applicants. Learned counsel refers to sections 6 and 7 of the WCMA for the establishment and functions of the KWS respectively and submits that there is no duty placed upon the KWS to compensate or pay compensation on claims resulting from loss or damage caused by wildlife. He has cited the case of Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] eKLR to support the submission that the order of mandamus must command no more than the party against whom the application is made is legally bound to perform and further that a party in a judicial review seeking an order of mandamus must show the existence of a statutory duty conferred or invested by statute upon some person, body of persons or tribunal which such person, body of persons or tribunal has failed to perform.
24. He has also cited the case of Republic v County Government of Nairobi & 2 others Ex-Parte Kingpost Limited [2021] eKLR the court in declining to grant orders of mandamus against the 3rd Respondent (County Executive Member, Lands and Urban Planning) stated that the 3rd Respondent not being the accounting officer (who was statutorily bound to satisfy a court decree) had no role in the proceedings and had been improperly enjoined. The Court stated:
“Whereas the Ex-parte Applicant is correct that the 3rd Respondent is the line minister in matters land, it is apparent that he has no role in these proceedings. This is a case of mis-joinder.”
25. Learned counsel submits further that no decision has been made by the 2nd and 3rd respondents compelling the 1st respondent to pay the 1st applicant the compensation of KShs 5 million. He submits that the 1st respondent bears no statutory duty to pay the ex-parte applicants the compensation.
26. Learned counsel submits that it will be arbitrary and unlawful for this court to order that the 1st respondent should take up the role of the 2nd respondent, and compensate the ex-parte applicants,
27. I have considered the statutory statement filed alongside the chamber summons and which I trust was served after the order for leave was granted, the reliefs sought therein and the grounds in support thereof and the affidavit supporting the notice of motion and the submissions by learned counsels for the ex-parte applicant and the 1st respondent.
28. Learned counsel for the 1st respondent submits that the issue for determination is whether the 1st respondent is a proper party in these proceedings and if so, whether the orders sought against them are available to the ex-parte applicant. His answer is in the negative.
29. For the court, the issue for determination is whether an order of mandamus should issue from this court to compel the 1st respondent to pay the ex parte applicants the sum of KShs. 5 million for the death of their daughter as a result of an attack by the buffalo on 6/8/2021. The other issues raised by the ex-parte applicants and the 1st respondent are subsumed within the issue framed by the court.
30. Compensation for personal injury or death or damage to property under the WCM Act is provided for in section 25 as follows:
(1) Where any person suffers any bodily injury or is killed by any wildlife listed under the Third Schedule, the person injured, or in the case of a deceased person, the personal representative or successor or assign, may launch a claim to the County Wildlife Conservation and Compensation Committee within the jurisdiction established under this Act.
(2) The County Wildlife Conservation and Compensation Committee established under section 18 shall verify a claim made under subsection (1) and upon verification, submit the claim to the Cabinet Secretary together with its recommendations thereon.
(3) The Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate, pay compensation to the claimant as follows—
a. in the case of death, five million shillings;
b. in the case of injury occasioning permanent disability, three million shillings;
c. in the case of any other injury, a maximum of two million shillings, depending on the extent of injury.
(4) …
(5) …
(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) …
31. The ex-parte applicant’s prayer is for an order of mandamus to issue from this court to compel the 1st respondent to pay the ex parte applicant the sum of KShs. 5 million for the death of Mumbo Chivuo.
32. The 2nd and 3rd respondents did not respond to the application.
33. The 1st respondent’s response to the application is primarily based on the argument that the statutory mandate to pay compensation is not upon KWS but the Cabinet Secretary for Tourism and Wildlife. Learned counsel for the KWS has made very extensive submissions on the same. However, he never addressed the decision of the Supreme Court in Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No 11 of 2015 (2018) eKLR which in relation to the issue he raises observed as follows at paragraph 66:-
“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 revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation for damage made by animals and wildlife...The Wildlife Act gives responsibility to Kenya Wildlife Service as the park revenue collector to compensate for damage occasioned by wild animals."
34. Earlier the Court of Appeal succinctly deal with the issue in Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] KECA 234 (KLR). The court addressed the issue as follows:
“Before we conclude, we would like to observe that the appellant has dwelt at length in its submission on an issue that was not raised before the High Court at all. This is the question as to whether it has the duty to pay compensation or not. We must admit we found this submission self-defeating.
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 this point as succinctly pronounced in Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited [2014] KECA 330 (KLR) among 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 appellant as to whether it is the CEO of the appellant or the cabinet secretary who should disburse the money.
If there is any conflict of responsibilities or performance of duty between the CEO and the cabinet secretary, that is upon the two to sort out, but that should not be used to deny a party compensation duly owed to it.”
35. These holdings by the superior courts have settled the issue of who between the KWS and the Cabinet Secretary is responsible for making the compensation. For me, the Court of Appeal found that when it comes to the issue of compensation, KWS and the Cabinet Secretary play the same role. They are conjoined and will not be separated, so that a claim against the Cabinet Secretary is a claim against the KWS. The decision has been applied in the High Court decisions in Republic v Kenya Wildlife Service & 2 others and Muhia (Exparte Applicant) [2024] KEHC 8086 (KLR) among others. I am bound by the said decisions of the superior courts and I do not know whether learned counsel wishes this court to depart from that holding which is not possible. I will therefore not belabour that point any more other than to find that the response by the 1st respondent to the application that KWS has no statutory mandate to pay compensation to victims of wildlife damage is without merit.
36. Both parties are agreed that the ex-parte applicant properly lodged a claim for compensation with the 2nd Respondent, the Kwale County Wildlife Compensation Committee sometime in 2021. The ex-parte applicant has not been informed of the outcome of her complaint.
37. Section 106(2)(c) of the Wildlife Conservation and Management Act, provides that any person who has reason to believe that the provisions of this Act have been, are being, or are about to be violated, may petition the High Court for the writ of mandamus against an officer or a person who has failed to perform a duty imposed by or under this Act. It is the ex-parte applicant’s case that the respondents have failed to act on her claim. From the 1st respondent’s replying affidavit, it is not clear what has become of the ex-parte applicant’s claim, yet the 1st respondent is the secretary of the committee. Without communication from the respondents to the ex-parte applicants of what became of their claim since they launched (this is the word used in the Act) it in 2021, I am satisfied that they were right in filing the present application seeking an order of mandamus against the respondents as provided for under section 106 of the Act.
38. Regulation 27 of the Wildlife Conservation and Management (Compensation) Regulations provides the timelines for consideration and payment of claims as follows:
1) On receipt of a claim for bodily injury or death, the Committee shall within thirty days of such receipt verify the claim and submit it to the Cabinet Secretary together with its recommendations.
2) Upon receipt of a claim for bodily injury or death, the Cabinet Secretary shall consider the recommendation of the Committee and make payments within thirty days of receipt of the claim.
39. The statutory timelines for the committee and the Cabinet Secretary to act are as provided above. Each is required to make a decision within thirty days. Certainly, the timelines within which the 1st respondent acting through the committee and the Cabinet secretary is required to act have long passed.
40. There is no evidence that the compensation committee of which the 1st respondent is the secretary ever made any recommendation for payment to the 2nd respondent who is mandated under the Act and compensation regulations to make payment within 30 days of being given the green light by the compensation committee. In view of the non-action by the WMCC the only option available to the ex parte applicant to get compensation for the personal injury sustained is to compel the 1st respondent through a judicial review order of mandamus as was held in the case of KWS vs Purity Kanini (suing as the next friend to EDWARD KOOME) Nyeri Civil Appeal No. 30 of 2020.
41. It follows that the respondents are in violation of the Act with respect to the timelines for payment of the claim and the ex-parte applicants are therefore properly before this court seeking the order of mandamus to compel the respondents to pay them the compensation.
42. Consequently, I find that the application by the ex-parte applicants has merit and the same is allowed in terms that the 1st respondent is hereby compelled by an order of Mandamus to pay KSh.5,000,000/= to the ex-parte applicants as compensation for the death of Mumbo Mwavuo as a result of an attack by a buffalo.
43. The costs of this application are awarded to the ex-parte applicants.
44. Orders accordingly.
Judgment delivered, dated and signed in Open Court on the Virtual Platfrom Teams this 22nd day of July 2025.
ANDAYI W.F.
JUDGE
In the presence of: -
Muriuki holding brief for Opondo for the Ex-parte applicant
No appearance for the 1st Respondent
No appearance for the 2nd and 3rd Respondents.
Ummu - Court Assistant