REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
JUDICIAL REVIEW MISC. APPL. NO. E003 OF 2025
(Coram: Andayi W. F., J.)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS
AND
IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT (CAP 376) LAWS OF KENYA
BETWEEN
REPUBLIC………………………………………………………………………………. APPLICANT
VERSUS
KENYA WILDLIFE SERVICE……………………………………………...........RESPONDENT
NDURYA WANGONI MAINGA & CHRISTINE LUVUMO MZUNGU
(Suing as the administrators and legal representatives of the estate of
MKALA NDURYA WANGONI-Deceased) …………………...EX-PARTE APPLICANTS
JUDGMENT
1. The Notice of Motion herein dated 18 th November 2025 seeks for an order of mandamus directed at the respondent to compel it to pay to the ex-parte applicants or to their advocates KShs 5,000,000/= as compensation for the death of the deceased following fatal injuries sustained through an attack by an elephant.
2. The ex-parte applicants approached this court through a Chamber Summons dated 11 th November 2025 seeking leave to apply for judicial review orders of mandamus to issue against the respondent to compel it to pay KShs 5,000,000/= as compensation for the death of the deceased, their son after being attacked and injured by an elephant 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 applicants filed a Statutory Statement dated 11 th November 2025 outlining the facts of the case, the legal foundation of the application, and the reliefs sought.
4. The facts are that he ex-parte applicants are the legal representatives and administrators of the estate of the late Mkala Nduyra Wangoni who was viciously attacked by an elephant on 31 st August 2023 while walking home within Busa sub-location, thereby occasioning him fatal injuries. They thus blame the respondent for negligence and breach of statutory duty under the Wildlife Conservation and Managament Act (Cap. 376) Laws of Kenya, for the said death of their son and seek compensation.
5. It is their case that a claim for compensation was lodged with the local Kwale County Community Wildlife Conservation Committee which approved payment of KShs 5,000,000/= for the loss of the life. However, payment has never been received and thus the prayer for an order of mandamus to compel the respondent to pay.
6. Leave was granted with directions that the main Notice of Motion be filed within 21 days and served and for the respondent to file its response within 14 days of service. The main Notice of Motion was filed on 21 st November 2025 as directed and it is what is under consideration now.
7. The grounds in support of the motion are contained in the Statutory Statement dated 11 th November 2025 as set out above. In the Statutory Statement, the order of mandamus sought is indicated to be directed at the respondent, the Kenya Wildlife Service (KWS) to pay within 14 days of the order, the ex-parte applicants the sum of KShs 5,000,000/= as compensation for the death of the deceased Mkala Ndurya Wangoni after being attacked by an elephant.
8. The application is supported by the verifying affidavit of Ndurya Wangoni Mainga sworn on 11 th November 2025 in which he has expounded on the grounds in support of the motion.
9. It is the ex-parte applicants’ case that they are the legal representatives and administrators of the estate of the deceased Mkala Ndurya Wangoni. They have annexed a copy of a limited grant, Ad litem dated 8 th January 2024. They state that the deceased was attacked by an elephant while walking home within Busa sub-location on 31 st August 2023 causing him fatal injuries. They have annexed copies of certificate of death issued on 6 th October 2023 showing that the deceased was 15 years old and that the cause of death was severe head injury blunt force trauma due to elephant attack; a post mortem form, and letter from the area assistant chief dated 12 th January 2024 confirming that the deceased was a resident of Busa sub location and was attacked and killed by an elephant while walking home on 31 st August 2023 and that the ex-parte applicants are his parents.
10. The ex-parte applicants blamed the respondent, Kenya Wildlife Service (KWS), for negligence and breach of statutory duty as provided for under the Wildlife Conservation and Management Act. They state that they lodged a claim for compensation with KWS. It is their case that the respondent convened a meeting of the Kwale County Community Wildlife Conservation Committee (CWCC) with respect to the claim and the compensation was approved in the sum of KShs 5,000,000/=. However, the same had never been settled by the respondent.
11. The application is opposed by the respondent, KWS, through a replying affidavit sworn by Derrick Karinga, its legal officer, on 25 th February 2026.
12. He acknowledges that the ex parte applicants reported to the respondent the incident as deposed in their verifying affidavit. The same was deliberated upon on 15 th July 2025 and determined by the CWCC and a decision made to award the ex-parte applicants KShs 5,000,000/= as compensation. He has annexed to the replying affidavit minutes of the meeting at which the decision was made.
13. He deposes however, that it is not the duty of the respondent under section 7 of the Wildlife Conservation and Management (Cap. 376) Laws of Kenya (WCMA) and it is not within the respondent's statutory mandate to compensate the ex parte applicants.
14. He deposes that under section 18 of the Wildlife Conservation and Management Act, (Cap. 376) Laws of Kenya (WCMA). the County Wildlife Conservation Committee is established. 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 respondent, KWS, is only the secretary to the County Wildlife Conservation Committee as provided for under section 18(2) of the Act.
15. 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 applicants are asking this court to take over the functions of the Cabinet Secretary and to perform his functions under section 19 of the WCMA by reviewing the claim and recommending the same for compensation. 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 respondent to pay compensation.
16. Further that it not being the respondent's duty to compensate the ex-parte applicants, their moving this court to compel it to make such payments amounts to asking the court to act beyond its powers.
17. That the ex-parte applicants are asking the court to impose upon the respondent a duty which has not only not been statutorily bestowed upon the 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 are asking of the court is tantamount to amendment of legislation through imposition of a duty.
18. For those reasons, it is the contention by the respondent that the application is fatally defective, bad in law and not merited and ought to be dismissed with costs.
19. The application was disposed of by way of written submissions filed by learned counsels for the ex-parte applicants and the respondent. Learned counsel for the ex-parte applicants also filed authorities in support of the application.
20. The ex-parte applicants raised the following issues for determination:
a. whether the 1 st (sic) respondent is statutorily bound to manage national parks and reserves.
b. whether the 1 st (sic) respondent is mandated to compensate the ex-parte applicants.
c. whether the ex-parte applicants are entitled to the orders of mandamus as sought.
21. Learned counsel for the respondent on his part has raised one issue for determination, that is whether it is the duty of the respondent to pay compensation or that of the Ministry of Tourism and Wildlife.
22. I do not find the 1 st issue raised by the ex-parte applicants to be in contention at all. This is provided for under the law and this court need not consider it as an issue for determination other than restating the law as it is.
23. The issue of whether or not the respondent is mandated to compensate the ex-parte applicants is common to both parties which upon determination also determines the third issue raised by the ex-parte applicants of whether the ex-parte applicants are entitled to the orders of mandamus sought.
24. Learned counsel for the ex-parte applicants submits that the mandate to pay the compensation is upon KWS, the 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.
25. Learned counsel for the respondent, KWS submits that it is not disputed that the ex parte applicants made their report of the incident of death caused by an elephant attack upon the deceased. They properly lodged a claim for compensation with the respondent through the Kwale County Wildlife Compensation Committee,
26. With respect to the prayer that the 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 Ministry of Tourism and Wildlife as the 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.
27. Referring to the functions of KWS as outlined under section 7 of the Act, learned counsel has cited the case of Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] KEHC 7078 (KLR) 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.
28. He has also cited the case of Republic v County Government of Nairobi & 2 others Ex-Parte Kingpost Limited [2021] KEELC 1084 (KLR) where the court in declining to grant orders of mandamus against the 3 rd Respondent (County Executive Member, Lands and Urban Planning) stated that the 3 rd 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 3 rd 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.”
29. Learned counsel submits further that the Cabinet Secretary has not yet considered the recommendations made by the CWCC to compensate the ex-parte applicants and has not yet approved the claim for compensation and thus the cause of the claim remaining unpaid by the Cabinet Secretary as provided for under section 25(3) of the Act. Learned counsel has referred to an alleged annexure “DK-2” supposedly in the respondent’s replying affidavit for the position that the budget for compensation lies with the CS and not the respondent. I have however not seen that annexure.
30. Learned counsel submits that the ex-parte applicants are not entitled to the orders of mandamus sought as against the respondent as the statutory duty to pay is not upon the respondent but the CS.
31. 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, the replying affidavit by the respondent and the submissions by learned counsels for the parties.
32. For the court, the issue for determination is whether an order of mandamus should issue from this court to compel the respondent to pay the ex parte applicants the sum of KShs. 5 million for the death of their kin as a result of an attack by an elephant 6 th November 2023.
33. 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) …
34. It is not disputed that the ex-parte applicants are due for compensation having properly lodged a claim with the CWCC following an attack and killing of their son by an elephant. It is also not disputed that their claim is yet to be settled thus leading to the present application.
35. The 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. He relies on sections 6 and 7 of the WCMA for his submissions.
36. Section 6 of the Act provides for the establishment of KWS while section 7 provides for its functions as follows:
S. 7. The functions of the Service shall be to—
(a) conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction;
(b) provide security for wildlife and visitors in national parks, wildlife conservation areas and sanctuaries;
(c) set up a county wildlife conservation committee in respect of each county;
(d) promote or undertake commercial and other activities for the purpose of achieving sustainable wildlife conservation;
(e) collect revenue levies and charges due to the national government from wildlife and, as appropriate, develop mechanisms for benefit sharing with communities living in wildlife areas;
(f) develop mechanisms for benefit sharing with communities living in wildlife areas;
(g) advise the Cabinet Department on matters pertaining to wildlife policy, strategy and legislation;
(h) coordinate the preparation and implementation of ecosystem plans;
(i) prepare and implement national park management plans;
(j) assist and advise in the preparation of management plans for community and private wildlife conservancies and sanctuaries;
(k) undertake and conduct enforcement activities such as anti-poaching operations, wildlife protection, intelligence gathering, investigations and other enforcement activities for the effective carrying out of the provisions of this Act;
(l) conduct and co-ordinate, all research activities in the field of wildlife conservation and management and ensure application of research findings in conservation planning, implementation and decision making;
(m) advise the National Land Commission, the Cabinet Secretary and the Council on the establishment of national parks, wildlife conservancies and sanctuaries;
(n) promote and undertake extension service programmes intended to enhance wildlife conservation, education and training;
(o) identify user rights and advise the Cabinet Secretary thereon;
(p) grant permits;
(q) establish forensic laboratories;
(r) monitor the compliance of terms and conditions of licences; and
(s) perform such other functions as the Board may assign the Service or as are incidental or conducive to the exercise by the Service of any or all of the functions provided under this Act.
37. Learned counsel never addressed the decision of the Supreme Court in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] KESC 48 (KLR) which in relation to the issue the respondent 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."
38. Indeed, in line with the above authority, section 7(e) provides that part of the functions of the KWS is to collect revenue levies and charges due to the national government from wildlife and, as appropriate, develop mechanisms for benefit sharing with communities living in wildlife areas;
39. 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.”
40. 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 for the respondent 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 respondent to the application that KWS has no statutory mandate to pay compensation to victims of wildlife damage is without merit.
41. Both parties are agreed that the ex-parte applicants properly lodged a claim for compensation with the Kwale County Wildlife Compensation Committee sometime in 2023 and the same was considered and approved for payment. There was no appeal against that decision and the claim is before the CS for payment. As the time of filing the present application two years had elapsed without the payment being made.
42. 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.
43. The statutory timelines for the Cabinet Secretary and therefore the KWS to act are as provided above. He is required to payment within thirty days of receipt of the claim for bodily injury or death. Certainly, the timelines within which the respondent acting through the Cabinet secretary is required to act have long passed.
44. Section 106(2)(c) of the Wildlife Conservation and Management Act, p rovides that any person who has reason to believe that the provisions of the 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 applicants’ case that the respondent has failed to act on their claim. It is apparent that the provisions of the Act with regard to the timelines for payment by the respondent have been violated, I am satisfied that the ex-parte applicants were right in filing the present application seeking an order of mandamus against the respondent as provided for under section 106 of the Actand the ex-parte applicants are properly before this court to seek orders to compel the respondent to pay them the compensation because they have reason to believe that the provisions of this Act have been and are being violated. They are right to petition this court for the writ of mandamus against the respondent who has failed to perform its duties imposed by the Act and the compensation regulations and as explained by the courts in various decisions.
45. In view of the non-action by the Cabinet Secretary and therefore by extension the KWS the respondent herein, the only option available to the ex parte applicants to get compensation for the death of Mkala Ndurya Wangoni is to compel the respondent through a judicial review order of mandamus to act accordingly as was held by the Court of Appeal in the case of Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome) [2024] KECA 1127 (KLR)
46. Consequently, I find that the application by the ex-parte applicants has merit and the same is allowed in terms that the respondent is hereby compelled by an order of mandamus to pay KShs. 5,000,000/= to the ex-parte applicants as compensation for the death of Mkala Ndurya Wangoni as a result of an attack by an elephant.
47. The costs of this application are awarded to the ex-parte applicants.
48. Orders accordingly.
Ruling delivered , dated and signed on the Virtual Platform Teams this 9 th day of July 2026.
ANDAYI W.F.
JUDGE
In the presence of: -
Ms Njoroge h/b for Opondo for the Ex-parte applicants
Nyaga for the Respondent.
Ummu - Court Assistant
ANDAYI W.F.
JUDGE
HC JR Misc. Appl. No. E003/2025 1 Wildlife compensation- Mandamus
IN THE HIGH COURT OF KENYA AT KWALE
JUDICIAL REVIEW MISC. APPL. NO. E003 OF 2025
(Coram: Andayi W. F., J.)
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS
AND
IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT (CAP 376) LAWS OF KENYA
BETWEEN
REPUBLIC………………………………………………………………………………. APPLICANT
VERSUS
KENYA WILDLIFE SERVICE……………………………………………...........RESPONDENT
NDURYA WANGONI MAINGA & CHRISTINE LUVUMO MZUNGU
(Suing as the administrators and legal representatives of the estate of
MKALA NDURYA WANGONI-Deceased) …………………...EX-PARTE APPLICANTS
JUDGMENT
1. The Notice of Motion herein dated 18 th November 2025 seeks for an order of mandamus directed at the respondent to compel it to pay to the ex-parte applicants or to their advocates KShs 5,000,000/= as compensation for the death of the deceased following fatal injuries sustained through an attack by an elephant.
2. The ex-parte applicants approached this court through a Chamber Summons dated 11 th November 2025 seeking leave to apply for judicial review orders of mandamus to issue against the respondent to compel it to pay KShs 5,000,000/= as compensation for the death of the deceased, their son after being attacked and injured by an elephant 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 applicants filed a Statutory Statement dated 11 th November 2025 outlining the facts of the case, the legal foundation of the application, and the reliefs sought.
4. The facts are that he ex-parte applicants are the legal representatives and administrators of the estate of the late Mkala Nduyra Wangoni who was viciously attacked by an elephant on 31 st August 2023 while walking home within Busa sub-location, thereby occasioning him fatal injuries. They thus blame the respondent for negligence and breach of statutory duty under the Wildlife Conservation and Managament Act (Cap. 376) Laws of Kenya, for the said death of their son and seek compensation.
5. It is their case that a claim for compensation was lodged with the local Kwale County Community Wildlife Conservation Committee which approved payment of KShs 5,000,000/= for the loss of the life. However, payment has never been received and thus the prayer for an order of mandamus to compel the respondent to pay.
6. Leave was granted with directions that the main Notice of Motion be filed within 21 days and served and for the respondent to file its response within 14 days of service. The main Notice of Motion was filed on 21 st November 2025 as directed and it is what is under consideration now.
7. The grounds in support of the motion are contained in the Statutory Statement dated 11 th November 2025 as set out above. In the Statutory Statement, the order of mandamus sought is indicated to be directed at the respondent, the Kenya Wildlife Service (KWS) to pay within 14 days of the order, the ex-parte applicants the sum of KShs 5,000,000/= as compensation for the death of the deceased Mkala Ndurya Wangoni after being attacked by an elephant.
8. The application is supported by the verifying affidavit of Ndurya Wangoni Mainga sworn on 11 th November 2025 in which he has expounded on the grounds in support of the motion.
9. It is the ex-parte applicants’ case that they are the legal representatives and administrators of the estate of the deceased Mkala Ndurya Wangoni. They have annexed a copy of a limited grant, Ad litem dated 8 th January 2024. They state that the deceased was attacked by an elephant while walking home within Busa sub-location on 31 st August 2023 causing him fatal injuries. They have annexed copies of certificate of death issued on 6 th October 2023 showing that the deceased was 15 years old and that the cause of death was severe head injury blunt force trauma due to elephant attack; a post mortem form, and letter from the area assistant chief dated 12 th January 2024 confirming that the deceased was a resident of Busa sub location and was attacked and killed by an elephant while walking home on 31 st August 2023 and that the ex-parte applicants are his parents.
10. The ex-parte applicants blamed the respondent, Kenya Wildlife Service (KWS), for negligence and breach of statutory duty as provided for under the Wildlife Conservation and Management Act. They state that they lodged a claim for compensation with KWS. It is their case that the respondent convened a meeting of the Kwale County Community Wildlife Conservation Committee (CWCC) with respect to the claim and the compensation was approved in the sum of KShs 5,000,000/=. However, the same had never been settled by the respondent.
11. The application is opposed by the respondent, KWS, through a replying affidavit sworn by Derrick Karinga, its legal officer, on 25 th February 2026.
12. He acknowledges that the ex parte applicants reported to the respondent the incident as deposed in their verifying affidavit. The same was deliberated upon on 15 th July 2025 and determined by the CWCC and a decision made to award the ex-parte applicants KShs 5,000,000/= as compensation. He has annexed to the replying affidavit minutes of the meeting at which the decision was made.
13. He deposes however, that it is not the duty of the respondent under section 7 of the Wildlife Conservation and Management (Cap. 376) Laws of Kenya (WCMA) and it is not within the respondent's statutory mandate to compensate the ex parte applicants.
14. He deposes that under section 18 of the Wildlife Conservation and Management Act, (Cap. 376) Laws of Kenya (WCMA). the County Wildlife Conservation Committee is established. 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 respondent, KWS, is only the secretary to the County Wildlife Conservation Committee as provided for under section 18(2) of the Act.
15. 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 applicants are asking this court to take over the functions of the Cabinet Secretary and to perform his functions under section 19 of the WCMA by reviewing the claim and recommending the same for compensation. 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 respondent to pay compensation.
16. Further that it not being the respondent's duty to compensate the ex-parte applicants, their moving this court to compel it to make such payments amounts to asking the court to act beyond its powers.
17. That the ex-parte applicants are asking the court to impose upon the respondent a duty which has not only not been statutorily bestowed upon the 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 are asking of the court is tantamount to amendment of legislation through imposition of a duty.
18. For those reasons, it is the contention by the respondent that the application is fatally defective, bad in law and not merited and ought to be dismissed with costs.
19. The application was disposed of by way of written submissions filed by learned counsels for the ex-parte applicants and the respondent. Learned counsel for the ex-parte applicants also filed authorities in support of the application.
20. The ex-parte applicants raised the following issues for determination:
a. whether the 1 st (sic) respondent is statutorily bound to manage national parks and reserves.
b. whether the 1 st (sic) respondent is mandated to compensate the ex-parte applicants.
c. whether the ex-parte applicants are entitled to the orders of mandamus as sought.
21. Learned counsel for the respondent on his part has raised one issue for determination, that is whether it is the duty of the respondent to pay compensation or that of the Ministry of Tourism and Wildlife.
22. I do not find the 1 st issue raised by the ex-parte applicants to be in contention at all. This is provided for under the law and this court need not consider it as an issue for determination other than restating the law as it is.
23. The issue of whether or not the respondent is mandated to compensate the ex-parte applicants is common to both parties which upon determination also determines the third issue raised by the ex-parte applicants of whether the ex-parte applicants are entitled to the orders of mandamus sought.
24. Learned counsel for the ex-parte applicants submits that the mandate to pay the compensation is upon KWS, the 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.
25. Learned counsel for the respondent, KWS submits that it is not disputed that the ex parte applicants made their report of the incident of death caused by an elephant attack upon the deceased. They properly lodged a claim for compensation with the respondent through the Kwale County Wildlife Compensation Committee,
26. With respect to the prayer that the 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 Ministry of Tourism and Wildlife as the 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.
27. Referring to the functions of KWS as outlined under section 7 of the Act, learned counsel has cited the case of Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] KEHC 7078 (KLR) 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.
28. He has also cited the case of Republic v County Government of Nairobi & 2 others Ex-Parte Kingpost Limited [2021] KEELC 1084 (KLR) where the court in declining to grant orders of mandamus against the 3 rd Respondent (County Executive Member, Lands and Urban Planning) stated that the 3 rd 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 3 rd 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.”
29. Learned counsel submits further that the Cabinet Secretary has not yet considered the recommendations made by the CWCC to compensate the ex-parte applicants and has not yet approved the claim for compensation and thus the cause of the claim remaining unpaid by the Cabinet Secretary as provided for under section 25(3) of the Act. Learned counsel has referred to an alleged annexure “DK-2” supposedly in the respondent’s replying affidavit for the position that the budget for compensation lies with the CS and not the respondent. I have however not seen that annexure.
30. Learned counsel submits that the ex-parte applicants are not entitled to the orders of mandamus sought as against the respondent as the statutory duty to pay is not upon the respondent but the CS.
31. 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, the replying affidavit by the respondent and the submissions by learned counsels for the parties.
32. For the court, the issue for determination is whether an order of mandamus should issue from this court to compel the respondent to pay the ex parte applicants the sum of KShs. 5 million for the death of their kin as a result of an attack by an elephant 6 th November 2023.
33. 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) …
34. It is not disputed that the ex-parte applicants are due for compensation having properly lodged a claim with the CWCC following an attack and killing of their son by an elephant. It is also not disputed that their claim is yet to be settled thus leading to the present application.
35. The 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. He relies on sections 6 and 7 of the WCMA for his submissions.
36. Section 6 of the Act provides for the establishment of KWS while section 7 provides for its functions as follows:
S. 7. The functions of the Service shall be to—
(a) conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction;
(b) provide security for wildlife and visitors in national parks, wildlife conservation areas and sanctuaries;
(c) set up a county wildlife conservation committee in respect of each county;
(d) promote or undertake commercial and other activities for the purpose of achieving sustainable wildlife conservation;
(e) collect revenue levies and charges due to the national government from wildlife and, as appropriate, develop mechanisms for benefit sharing with communities living in wildlife areas;
(f) develop mechanisms for benefit sharing with communities living in wildlife areas;
(g) advise the Cabinet Department on matters pertaining to wildlife policy, strategy and legislation;
(h) coordinate the preparation and implementation of ecosystem plans;
(i) prepare and implement national park management plans;
(j) assist and advise in the preparation of management plans for community and private wildlife conservancies and sanctuaries;
(k) undertake and conduct enforcement activities such as anti-poaching operations, wildlife protection, intelligence gathering, investigations and other enforcement activities for the effective carrying out of the provisions of this Act;
(l) conduct and co-ordinate, all research activities in the field of wildlife conservation and management and ensure application of research findings in conservation planning, implementation and decision making;
(m) advise the National Land Commission, the Cabinet Secretary and the Council on the establishment of national parks, wildlife conservancies and sanctuaries;
(n) promote and undertake extension service programmes intended to enhance wildlife conservation, education and training;
(o) identify user rights and advise the Cabinet Secretary thereon;
(p) grant permits;
(q) establish forensic laboratories;
(r) monitor the compliance of terms and conditions of licences; and
(s) perform such other functions as the Board may assign the Service or as are incidental or conducive to the exercise by the Service of any or all of the functions provided under this Act.
37. Learned counsel never addressed the decision of the Supreme Court in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] KESC 48 (KLR) which in relation to the issue the respondent 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."
38. Indeed, in line with the above authority, section 7(e) provides that part of the functions of the KWS is to collect revenue levies and charges due to the national government from wildlife and, as appropriate, develop mechanisms for benefit sharing with communities living in wildlife areas;
39. 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.”
40. 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 for the respondent 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 respondent to the application that KWS has no statutory mandate to pay compensation to victims of wildlife damage is without merit.
41. Both parties are agreed that the ex-parte applicants properly lodged a claim for compensation with the Kwale County Wildlife Compensation Committee sometime in 2023 and the same was considered and approved for payment. There was no appeal against that decision and the claim is before the CS for payment. As the time of filing the present application two years had elapsed without the payment being made.
42. 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.
43. The statutory timelines for the Cabinet Secretary and therefore the KWS to act are as provided above. He is required to payment within thirty days of receipt of the claim for bodily injury or death. Certainly, the timelines within which the respondent acting through the Cabinet secretary is required to act have long passed.
44. Section 106(2)(c) of the Wildlife Conservation and Management Act, p rovides that any person who has reason to believe that the provisions of the 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 applicants’ case that the respondent has failed to act on their claim. It is apparent that the provisions of the Act with regard to the timelines for payment by the respondent have been violated, I am satisfied that the ex-parte applicants were right in filing the present application seeking an order of mandamus against the respondent as provided for under section 106 of the Actand the ex-parte applicants are properly before this court to seek orders to compel the respondent to pay them the compensation because they have reason to believe that the provisions of this Act have been and are being violated. They are right to petition this court for the writ of mandamus against the respondent who has failed to perform its duties imposed by the Act and the compensation regulations and as explained by the courts in various decisions.
45. In view of the non-action by the Cabinet Secretary and therefore by extension the KWS the respondent herein, the only option available to the ex parte applicants to get compensation for the death of Mkala Ndurya Wangoni is to compel the respondent through a judicial review order of mandamus to act accordingly as was held by the Court of Appeal in the case of Kenya Wildlife Service v Kanini (Suing as the Next Friend to Edward Koome) [2024] KECA 1127 (KLR)
46. Consequently, I find that the application by the ex-parte applicants has merit and the same is allowed in terms that the respondent is hereby compelled by an order of mandamus to pay KShs. 5,000,000/= to the ex-parte applicants as compensation for the death of Mkala Ndurya Wangoni as a result of an attack by an elephant.
47. The costs of this application are awarded to the ex-parte applicants.
48. Orders accordingly.
Ruling delivered , dated and signed on the Virtual Platform Teams this 9 th day of July 2026.
ANDAYI W.F.
JUDGE
In the presence of: -
Ms Njoroge h/b for Opondo for the Ex-parte applicants
Nyaga for the Respondent.
Ummu - Court Assistant
ANDAYI W.F.
JUDGE
HC JR Misc. Appl. No. E003/2025 1 Wildlife compensation- Mandamus