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1. The application that is before me is the one dated 01/08/2024 and is brought under section 5 of the Judicature Act, Cap 8 Laws of Kenya, Order 53 of the Civil Procedure Rules, Sections 3A, 1A & 1B of the Civil Procedure Act, Cap 21 Laws of Kenya and all other enabling provisions of the law. It seeks;
a) That this honorable court be pleased to grant the applicant an order of mandamus directed to the Cabinet Secretary, Ministry of Tourism and Wildlife and the Director General, Kenya Wildlife Services for failure to pay the estate of Joseph Kawia Maa who died on 11/03/2018 as per section 25 of the Wildlife Conservation & Management Act 2013 assessed at kshs 5,000,000/= plus interest thereon at court rate from 03/02/2024 when payment was due until full payment.
b) Spent.
c) Costs of the application be provided for.
2. The application was supported by the grounds on its face and the affidavit of Nicodemus Maa Mwau sworn on the same date. He deponed that he is the father and one of the representatives of the estate of the late Joseph Kawia Maa and has authority of his co-administrator to swear the affidavit. That, the deceased died on 11/03/2018 within Makueni County after a snake bite and they reported the incident to the Makueni County Wildlife Conservation & Management committee (the committee) under KWS/OB/NO/07/14/03/2018. A copy of the death certificate is exhibited as NMM-1.
3. He deponed that he was given all the necessary forms which he filled and forwarded to the committee. He was told that the forms would be vetted and forwarded to the Kenya Wildlife Services (KWS) headquarters in Nairobi and to the Cabinet Secretary for tourism for payment through the said committee. Copies of the filled forms are exhibited as NMM-2. That, he has severally visited the committee but told to wait.
4. He deponed that on 05/10/2023, he went to the committee offices and was informed that his son’s death claim had been assessed for payment at kshs 5,000,000/= but they were yet to receive the money in their offices for disbursement. That, on 13/12/2023, he went to the KWS Headquarters in Nairobi where he confirmed the assessment of ksh 5,000,000/= and that it was due for payment within the next 60 days which lapsed on 03/02/2024.
5. He deponed that no payment was made as promised and no satisfactory explanation has ever been given since. That, the 30 days’ notice to sue the Respondents had lapsed to sue on 18/03/2024 lapsed hence his resort to court for an order of mandamus against them. A copy of the notice dated 06/03/2024 is exhibited as NMM-4. That, he applied for leave to seek an order of mandamus and the same was granted by this court on 22/07/2024. The order granting leave is exhibited as NMM-5.
6. The application is opposed through the 1st Respondent’s grounds of opposition dated 20/11/2024 to wit;
a) The Chamber summons application dated 01/08/2024 is bad in law, incompetent and incurably defective.
b) The application offends the provisions of Order 53 (3)(1) and 4(1) of the Civil Procedure Rules.
c) The application is premature and brought in bad faith.
d) The application does not meet the threshold for granting of the orders sought.
e) The application lacks merit and ought to be dismissed.
7. The application is also opposed through the 2nd Respondent’s Replying Affidavit sworn by Derrick Karinga on 26/08/2024. He deponed that he is the 2nd Respondent’s legal officer, fully conversant with the facts in this case and with authority to act on behalf of the 2nd Respondent. He deponed that the application is fatally defective and bad in law as it seeks to compel the 2nd Respondent to do that which is not within its mandate. That, the committee as established under section 18 of the Wildlife Conservation and Management Act (the Act), 2013 is mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under section 19(1) and 25(2) of the Act.
8. He deponed that the 2nd Respondent is only the secretary to the committee established under section 18 of the Act. That, the 2nd Respondent duly performed their duty when they considered the Applicant’s claim for compensation and recommended payment of kshs 5,000,000/= on 06/12/2021. That, the claim and recommendation were then submitted to the Cabinet Secretary, Ministry of Wildlife & Tourism (the CS) in accordance with section 25(2) of the Act where the claim was considered and approved for compensation by the committee on 01/02/2022 in accordance with section 25(3) of the Act. A copy of the claimant’s status report is exhibited as DK1.
9. He deponed that the responsibility to compensate for human wildlife conflict matters is upon the CS. That the 2nd Respondent role is that of the go between the Applicant and the CS, and that was the basis for the the request for the Applicant’s bank account details on behalf of the CS. That the 2nd Respondent transmits compensation funds provided by the CS but in the Applicant’s case, the funds have not been provided. It would therefore be unjust and an illegality for this court to issue orders sought against the 2nd Respondent.
10. The application was canvassed through written submissions.
Ex-Parte Applicant Submissions
11. For the ex-parte Applicants the contents of the supporting affidavit were reiterated. It was submitted that they have proved, on a balance of probability, that the Respondent’s jointly and severally have failed to release the compensation due and owing to the estate of the late Joseph Kawia Maa. It was contended that it was up to the Respondents’ to sort out their internal procedures of payment without prejudicing the rights of the victim. Reliance was placed on Kenya Wildlife Services -vs- Joseph Musyoki Kalonzo (2017) eKLR where the Court of Appeal stated;
“The Appellant admits duty to manage and conserve wildlife. The duty comes with attendant responsibility to shoulder any claims of loss or damage caused by breach of that duty……the Cabinet Secretary referred to in the Act pays the money on behalf of the appellant (KWS). 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 two, that is upon the two to sort out but should not be used to deny a party compensation duly owed to it.”
12. It was submitted that the acts of the Respondents had forced the ex-parte Applicants to incur costs in prosecuting this matter hence the costs of the suit should be awarded to them.
Submissions by the 1st Respondent
13. For the 1st Respondent the following issue arise for determination;
a) Whether the application has met the threshold for grant of the order of mandamus.
b) Whether the Respondents need to appear in court personally.
c) Whether the application is defective for want of form.
d) Whether the interest sought is deserved.
14. As to whether the application has met the threshold for grant of mandamus, reliance was placed on Republic -vs-Kenya National Examination Council ex-parte Gathenji & 8 Others; Civil Appeal No. 234 of 1996 where the Court of Appeal stated;
“The order of mandamus is of extensive remedial nature and is in form, a command from the High Court of justice directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal remedy, yet that mode of redress is less convenient, beneficial and effectual…these principles mean that an order of mandamus compels the performance of the public duty which is imposed on a person or body of persons has failed to perform the duty to the detriment of a party who has legal right to expect the duty to be performed.”
15. It was submitted that before grant of the order of mandamus, the court has to be convinced that the Applicant has done their part in terms of supplying the requisite documents and demanding for payment. Reliance was placed on Republic -vs- Principal Secretary, Ministry of Internal Security & Anor Ex-Parte Schon Noorani & Anor [2018] KEHC 9433 (KLR) where the court stated;
“29. Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General),[23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The eight factors that must be present for the writ to issue are:-
(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii) There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
I. A prior demand for performance;
II. A reasonable time to comply with the demand, unless there was outright refusal; and
III. An express refusal, or an implied refusal through unreasonable delay;
(iv) No other adequate remedy is available to the Applicants;
(v) The Order sought must be of some practical value or effect;
(vi) There is no equitable bar to the relief sought;
(vii) On a balance of convenience, mandamus should lie.”
16. Reliance was also placed on Abdallah A. Hassan -vs- County Government of Mombasa [2020] KEHC 9588 (KLR) where the court stated;
“9. In this case, the Applicant did not exhibit evidence showing that there was a prior demand for performance. No demand notice was annexed to the application. One cannot talk of a refusal to pay if there is no evidence of prior demand for the payment. There is no evidence that the Certificate of Taxation and Decree annexed to the application were served upon the Respondent prior to filing this application. It was a serious omission for the Applicant to fail to avail evidence of prior demand to the Respondent to comply with the decree. On the test of what constitutes a reasonable time to comply before Mandamus can issue, it is not possible to compute the time in absence of a prior demand to comply.
10. Mandamus can only issue where it is clear that there is wilful refusal or implied and or unreasonable delay. In the absence of a demand this Court cannot tell whether the Respondent has refused to settle the decree. Therefore, there is no basis at all for the Court to grant the order of Mandamus.”
17. The 1st Respondent acknowledged that the Applicant’s claim was verified and assessed at kshs 5 million by the committee as per section 25(2) of the Act. It acknowledged that the recommendations of the committee are then submitted to it whereupon it pays the claimant if appropriate. It however contended that the Applicants failed to demonstrate that they wrote a demand letter or visited the 1st Respondent to demand settlement of the claim prior to filing the application and as such, the application is premature.
18. It was submitted that in the absence of a demand, the Applicants cannot accuse the 1st Respondent of failing to perform its legal duty hence there is no basis for the court to grant the order of mandamus. It was contended that section 25(2) of the Act does not direct the 1st Respondent to pay compensation but rather, the section directs it to consider the recommendations of the committee and pay where it deems appropriate. Consequently, it was submitted that the order of mandamus does not apply to the 1st Respondent as far as payment of compensation is concerned. Reliance was placed on Republic -vs- Kenya Vision 2030 Delivery Board & Anor Ex-parte Eng. Judah Abehak [2015] KEHC 7078 (KLR) where the court stated;
“It follows that a court cannot compel a government agency to implement recommendations through an order of mandamus. Further, the only exemption where a court can compel a public agency to implement a recommendation is ‘where there is gross abuse of discretion, manifest injustice or palpable excess of authority’ equivalent to a denial of a settled right which petitioner is entitled, and there is no other plain, speedy and adequate remedy”
19. It was submitted that even after considering the recommendations of the committee and finding it appropriate to pay compensation, the 1st Respondent can only do so if funds are available at the National Treasury for that purpose. That, such funds, just like other government funds are usually estimated in the annual budget, approved and allocated to the service by the National Assembly as part of the Budget process then the National Treasury maintains custody of the funds till required.
20. As to whether the Respondents need to appear in court personally, reliance was placed on Article 156 (4)(b) for the submission that it is the duty of the Attorney General to represent the National Government in court. That, the 1st Respondent is an officer of the National Government and has a constitutional right to be represented by the Attorney General/State Counsel.
21. It was submitted that the Civil Procedure Act provides options for parties to appear in person or be represented by counsel. That, Order 51 Rule 16 of the Civil Procedure Rules provides for oral submissions or written submissions in which a party can be represented by counsel. Consequently, it was submitted that prayer 2 of the application should be dismissed.
22. As to whether the application should be dismissed for want of form, reliance was placed on Order 53 (3)(1) for the submission that once leave has been granted to apply for an order of judicial review, the application should be made within 21 days by notice of motion to the High Court. that, the application herein is defective for having been brought by way of Chamber Summons and should be dismissed with costs.
23. It was submitted that section 54 (4)(1) requires copies of the statement accompanying the application for leave to be served with the notice of motion. That, the Applicants did not file the said statements hence the application is due for dismissal for want of form. Reliance was placed on Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral & Boundaries Commission & 6 Others [2013] eKLR where the court stated;
“Article 159 of the Constitution, which commands courts to seek to render substantive justice, was not meant to aid in the destruction of rules of procedure and create an anarchical free-for-all in the administration of justice. The rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed.”
24. Further reliance was placed on Raila Odinga -vs- IEBC & Others [2013] eKLR where the court stated; “Article 159(2)(d) of the Constitution was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.”
25. As to whether the interest sought is deserved, it was submitted that it is not clear as to why the Applicants picked 03/02/2024 as the possible payment date of the claim putting in mind that that there has been no communication with the 1st Respondent who is responsible for settlement of claims. It was contended that it is not viable to base the prayer for interest on unreliable information. Reliance was placed on Arthur Kinuthia Albert -vs- Permanent Secretary, Ministry of Health (2008) eKLR where the court stated;
“The question I pose is whether it is this court to determine what sum is payable in term of interest. Judicial Review merely deals with the decision-making process but not the merit of the decision. In my view, the applicant’s counsel is calling upon this court to determine whether or not interest was payable to them and I am of the view that that is not the purview of this court’s jurisdiction…it is outside the court’s jurisdiction to assume and to determine whether or not interest was payable or how much is payable...”
26. It was submitted that section 25(3) of the Act only allows the 1st Respondent to pay kshs 5 million as compensation in case of death. That, it is not clear which statute the Applicants invoked to claim interest in addition to the 5 million. It was contended that the entire claim for interest should be dismissed. That, the application should also be dismissed with costs for lack of merit.
27. The 2nd Respondent did not file submissions. The submissions on the e-filing portal are dated 11/02/2025, in opposition to the application for leave dated 24/04/2024.
28. I have carefully considered the application, grounds of opposition, replying affidavit and the rival submissions, and I find that the following issues arise for determination;
a) Whether the Application is defective for want of form.
b) Whether the order of mandamus should be issued.
c) Whether the interest sought should be granted.
Whether the Application is defective for want of form.
29. The 1st Respondent contends that the application is defective as it was brought by way of Chamber Summons instead of Notice of Motion. Indeed, Order 53 Rule 3 of the Civil Procedure Rules (CPR) provides that
3. Application to be by notice of motion [Order 53, rule 3.]
(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.
(2) The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.
(3) An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.
(4) If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the court may direct
30. An application for an order of mandamus, prohibition or certiorari should be made to the High Court within 21 days after grant of leave and should be done by Notice of Motion. The application herein was brought by way of Chamber Summons, so the submission is true that the application does not conform in form. The issue is not the substance but the form of the application.
31. Order 2 Rule 14 of the CPR provides that; “No technical objection may be raised to any pleading on the ground of any want of form.” It is therefore clear that the justice system is inclined to substantive justice as opposed to driving parties away from the seat of justice on technicalities. As much as the 1st Respondent has argued that Article 159 of the Constitution was not meant to aid in the destruction of rules of procedure and create an anarchical free-for-all in the administration of justice, it would really be draconian to dismiss the application just because it was brought by way of Chamber Summons instead of Notice of Motion.
32. An elaboration of Article 159 of the Constitution was given by D. Musinga J in the matter of Uniconsult (K) Ltd [2012] KEHC 3653 (KLR) as follows;
“18.I have carefully considered all the submissions on record. The objections raised by the company regarding the petition are technical in nature. It must be realized that in the new constitutional dispensation that started after 27th August, 2010 when the Constitution of Kenya, 2010 was promulgated, courts are no longer shackled by procedural technicalities in dispensation of justice, particularly where the technicalities or procedural issues do not go to the root of the matter in issue or occasion substantial injustice or prejudice to any of the parties in a dispute. Courts today are required to ensure that substantial justice is administered without undue regard to such technicalities.
19. The provisions of Article 159 (2) (d) of the Constitution of Kenya, 2010 are very important in this regard. The inclusion of such a provision was very deliberate and I believe it was informed by public outcry regarding serious injustices that were occasioned to litigants due to the judiciary’s rigid observance of procedural technicalities. Article 159 (1) states that judicial authority is derived from the people and vests in and shall be exercised by the courts and tribunals established by or under this Constitution, and I may add, in accordance with the provisions of the Constitution. If courts continue to accord procedural technicalities undue prominence in administration of justice, they will be negating an important constitutional requirement.”
33. It is evident that counsel for the applicant did not change the heading from the application for leave but the substantive provisions of the law have been cited. The use of Chamber Summons has not affected the substance of the matter and has not prejudiced the Respondents in any way hence not a sufficient reason to dismiss the application.
Whether the order of mandamus should be issued.
34. An order of mandamus is codified in Order 53 of the CPR and it is trite that the purpose the order is to compel the performance of a public duty as stated in Republic -vs- Jomo Kenyatta University of Agriculture and Technology ex parte Elijah Kamau Mwangi [2021] eKLR to wit;
“The purpose of mandamus is to compel the performance of a public duty or any act contrary to or evasive of the law. It therefore lies against a public officer when some specific act or thing, which the law requires to be done, has been omitted. The conditions for its grant are that it must be shown that the public officer has failed to perform his duty; the court will not grant mandamus where there is an alternative remedy available to the applicant; and that it may be refused if the enforcement of the order will pose implementation challenges that require the Court’s supervision.”
35. In this case, it is not in dispute that the deceased died as a result of a snake bite and that an assessment of kshs 5 million compensation has already been done in favor of his estate. This is pursuant to section 25 of the Wildlife Conservation & Management Act which provides;
(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)………………………………………
(7)………………………………………
36. Does the 1st Respondent have the public duty to pay Ksh 5 million ? Do the applicants have any other remedy? Would the court have to supervise the performance of this duty?
37. The answer to the first question is in the affirmative. The procedure set down by the law on how that duty arises has already been complied with by the 2nd Respondent; The assessment and submission of the claim approved for compensation 01/02/2022 and recommendation for payment to the 1st Respondent .
38. The 1st Respondent argued that section 25(2) of the Act does not direct it to pay compensation but rather, the section directs it to consider the recommendations of the committee and pay where it deems appropriate. True, but clearly the consideration is also set out by the law. It is delineated to guide the Cabinet Secretary on the sums to be paid in the specific circumstances: in case of death, permanent disability or any other injury. There is no room for any other consideration by the Cabinet Secretary hence that argument is untenable. The CS is to consider what circumstance has been presented and pay appropriately.
39. The wording of section 25(3) of the Act (Supra) is ‘The Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate, pay compensation to the claimant as follows….(emphasis mine). It is really a straightforward interpretation and the Cabinet Secretary ought to pay.
40. The 1st Respondent has also argued that the Applicants have not demonstrated that they formally demanded for payment or visited the 1st Respondent to demand for payment. The notice to institute proceedings dated 06/03/2024 (NMM4) was addressed to the Director of Kenya Wildlife Services and the Attorney General (AG) whereupon they were duly notified that court proceedings would be instituted in the next 30 days if the claim of kshs 5 million remained unpaid. The 1st Respondent has argued in these proceedings that it should not be compelled to appear in person as its representative is the AG and that it has a right to be represented as such as per Article 156 (4)(b) of the Constitution and Order 51 Rule 6 of the CPR. There is no argument about that hence the reason why the same standard should be applied when the question arises as to whether a formal demand was done.
41. A formal demand was done to the AG and by extension, the demand was deemed to have been made to the 1st Respondent. Further, the leave to commence these proceedings was issued on 22/07/2024 and duly served upon the 1st Respondent. There was the first notice, then the second notice upon service of the application, the 1st Respondent should have construed the same as a demand for payment. Additionally,why would the Cabinet Secretary not put in internal mechanisms for payments upon approval as per the law? Why put Kenyans through the rigmarole of having to file suits for something that could be done as a formality, upon a schedule? I doubt that it was the intention of Parliament that victims would have to drag the government to court for compensation the same Government has approved. It is not right.
42. S. 25 (7) provides that the Cabinet Secretary may, by notice in the Gazette, prescribe such regulations and guidelines as are necessary and appropriate to carry out the purposes of this section.
43. The Cabinet Secretary gazetted LEGAL NOTICE 245 OF 2017 Wildlife Conservation and Management Act The Wildlife Conservation and Management (Compensation) Regulations, 2017
44. In those regulations , Regulation 11 provides for where the funds for compensation will come from:
(1)The Wildlife Compensation Scheme established under section 24 of the Act shall be funded through—
(a)monies specifically allocated for this purpose through the budget process;
(b)an insurance scheme to be established by the Cabinet Secretary responsible for matters relating to finance; and
(c)monies from any other source approved by the Cabinet Secretary for the time being responsible for matters relating to finance.
(2)The Wildlife Compensation Scheme shall be used for financing compensation claims for death or injury to human or damage to crop and property caused by wildlife
45. As to when the payment should be done regulation 27 states
(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.
46. This claim was due for payment in 2022 . It was not upon the applicants to demand payment but for the Cabinet Secreatray, according to his own regualations, to pay the sum upon receipt of the claim within 30 days . It is therefor ingenious for the 1st Respondent to argue that the applicants had not demonstrated that they had made a demand for payment. Even if that was so, there was a demand notice, these proceedings were instituted and the objections raised are not countenanced by the law. It cannot be he interests of justice for an approval which was done on 01/02/2022 to compensate for the death which occurred on 11/03/2018. There has been unreasonable delay by the 1st Respondent to do his duty to the applicants .
47. The applicants do not have any other recourse.
48. This court will not be re
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1. The application that is before me is the one dated 01/08/2024 and is brought under section 5 of the Judicature Act, Cap 8 Laws of Kenya, Order 53 of the Civil Procedure Rules, Sections 3A, 1A & 1B of the Civil Procedure Act, Cap 21 Laws of Kenya and all other enabling provisions of the law. It seeks;
a) That this honorable court be pleased to grant the applicant an order of mandamus directed to the Cabinet Secretary, Ministry of Tourism and Wildlife and the Director General, Kenya Wildlife Services for failure to pay the estate of Joseph Kawia Maa who died on 11/03/2018 as per section 25 of the Wildlife Conservation & Management Act 2013 assessed at kshs 5,000,000/= plus interest thereon at court rate from 03/02/2024 when payment was due until full payment.
b) Spent.
c) Costs of the application be provided for.
2. The application was supported by the grounds on its face and the affidavit of Nicodemus Maa Mwau sworn on the same date. He deponed that he is the father and one of the representatives of the estate of the late Joseph Kawia Maa and has authority of his co-administrator to swear the affidavit. That, the deceased died on 11/03/2018 within Makueni County after a snake bite and they reported the incident to the Makueni County Wildlife Conservation & Management committee (the committee) under KWS/OB/NO/07/14/03/2018. A copy of the death certificate is exhibited as NMM-1.
3. He deponed that he was given all the necessary forms which he filled and forwarded to the committee. He was told that the forms would be vetted and forwarded to the Kenya Wildlife Services (KWS) headquarters in Nairobi and to the Cabinet Secretary for tourism for payment through the said committee. Copies of the filled forms are exhibited as NMM-2. That, he has severally visited the committee but told to wait.
4. He deponed that on 05/10/2023, he went to the committee offices and was informed that his son’s death claim had been assessed for payment at kshs 5,000,000/= but they were yet to receive the money in their offices for disbursement. That, on 13/12/2023, he went to the KWS Headquarters in Nairobi where he confirmed the assessment of ksh 5,000,000/= and that it was due for payment within the next 60 days which lapsed on 03/02/2024.
5. He deponed that no payment was made as promised and no satisfactory explanation has ever been given since. That, the 30 days’ notice to sue the Respondents had lapsed to sue on 18/03/2024 lapsed hence his resort to court for an order of mandamus against them. A copy of the notice dated 06/03/2024 is exhibited as NMM-4. That, he applied for leave to seek an order of mandamus and the same was granted by this court on 22/07/2024. The order granting leave is exhibited as NMM-5.
6. The application is opposed through the 1st Respondent’s grounds of opposition dated 20/11/2024 to wit;
a) The Chamber summons application dated 01/08/2024 is bad in law, incompetent and incurably defective.
b) The application offends the provisions of Order 53 (3)(1) and 4(1) of the Civil Procedure Rules.
c) The application is premature and brought in bad faith.
d) The application does not meet the threshold for granting of the orders sought.
e) The application lacks merit and ought to be dismissed.
7. The application is also opposed through the 2nd Respondent’s Replying Affidavit sworn by Derrick Karinga on 26/08/2024. He deponed that he is the 2nd Respondent’s legal officer, fully conversant with the facts in this case and with authority to act on behalf of the 2nd Respondent. He deponed that the application is fatally defective and bad in law as it seeks to compel the 2nd Respondent to do that which is not within its mandate. That, the committee as established under section 18 of the Wildlife Conservation and Management Act (the Act), 2013 is mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under section 19(1) and 25(2) of the Act.
8. He deponed that the 2nd Respondent is only the secretary to the committee established under section 18 of the Act. That, the 2nd Respondent duly performed their duty when they considered the Applicant’s claim for compensation and recommended payment of kshs 5,000,000/= on 06/12/2021. That, the claim and recommendation were then submitted to the Cabinet Secretary, Ministry of Wildlife & Tourism (the CS) in accordance with section 25(2) of the Act where the claim was considered and approved for compensation by the committee on 01/02/2022 in accordance with section 25(3) of the Act. A copy of the claimant’s status report is exhibited as DK1.
9. He deponed that the responsibility to compensate for human wildlife conflict matters is upon the CS. That the 2nd Respondent role is that of the go between the Applicant and the CS, and that was the basis for the the request for the Applicant’s bank account details on behalf of the CS. That the 2nd Respondent transmits compensation funds provided by the CS but in the Applicant’s case, the funds have not been provided. It would therefore be unjust and an illegality for this court to issue orders sought against the 2nd Respondent.
10. The application was canvassed through written submissions.
Ex-Parte Applicant Submissions
11. For the ex-parte Applicants the contents of the supporting affidavit were reiterated. It was submitted that they have proved, on a balance of probability, that the Respondent’s jointly and severally have failed to release the compensation due and owing to the estate of the late Joseph Kawia Maa. It was contended that it was up to the Respondents’ to sort out their internal procedures of payment without prejudicing the rights of the victim. Reliance was placed on Kenya Wildlife Services -vs- Joseph Musyoki Kalonzo (2017) eKLR where the Court of Appeal stated;
“The Appellant admits duty to manage and conserve wildlife. The duty comes with attendant responsibility to shoulder any claims of loss or damage caused by breach of that duty……the Cabinet Secretary referred to in the Act pays the money on behalf of the appellant (KWS). 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 two, that is upon the two to sort out but should not be used to deny a party compensation duly owed to it.”
12. It was submitted that the acts of the Respondents had forced the ex-parte Applicants to incur costs in prosecuting this matter hence the costs of the suit should be awarded to them.
Submissions by the 1st Respondent
13. For the 1st Respondent the following issue arise for determination;
a) Whether the application has met the threshold for grant of the order of mandamus.
b) Whether the Respondents need to appear in court personally.
c) Whether the application is defective for want of form.
d) Whether the interest sought is deserved.
14. As to whether the application has met the threshold for grant of mandamus, reliance was placed on Republic -vs-Kenya National Examination Council ex-parte Gathenji & 8 Others; Civil Appeal No. 234 of 1996 where the Court of Appeal stated;
“The order of mandamus is of extensive remedial nature and is in form, a command from the High Court of justice directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal remedy, yet that mode of redress is less convenient, beneficial and effectual…these principles mean that an order of mandamus compels the performance of the public duty which is imposed on a person or body of persons has failed to perform the duty to the detriment of a party who has legal right to expect the duty to be performed.”
15. It was submitted that before grant of the order of mandamus, the court has to be convinced that the Applicant has done their part in terms of supplying the requisite documents and demanding for payment. Reliance was placed on Republic -vs- Principal Secretary, Ministry of Internal Security & Anor Ex-Parte Schon Noorani & Anor [2018] KEHC 9433 (KLR) where the court stated;
“29. Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General),[23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The eight factors that must be present for the writ to issue are:-
(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii) There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
I. A prior demand for performance;
II. A reasonable time to comply with the demand, unless there was outright refusal; and
III. An express refusal, or an implied refusal through unreasonable delay;
(iv) No other adequate remedy is available to the Applicants;
(v) The Order sought must be of some practical value or effect;
(vi) There is no equitable bar to the relief sought;
(vii) On a balance of convenience, mandamus should lie.”
16. Reliance was also placed on Abdallah A. Hassan -vs- County Government of Mombasa [2020] KEHC 9588 (KLR) where the court stated;
“9. In this case, the Applicant did not exhibit evidence showing that there was a prior demand for performance. No demand notice was annexed to the application. One cannot talk of a refusal to pay if there is no evidence of prior demand for the payment. There is no evidence that the Certificate of Taxation and Decree annexed to the application were served upon the Respondent prior to filing this application. It was a serious omission for the Applicant to fail to avail evidence of prior demand to the Respondent to comply with the decree. On the test of what constitutes a reasonable time to comply before Mandamus can issue, it is not possible to compute the time in absence of a prior demand to comply.
10. Mandamus can only issue where it is clear that there is wilful refusal or implied and or unreasonable delay. In the absence of a demand this Court cannot tell whether the Respondent has refused to settle the decree. Therefore, there is no basis at all for the Court to grant the order of Mandamus.”
17. The 1st Respondent acknowledged that the Applicant’s claim was verified and assessed at kshs 5 million by the committee as per section 25(2) of the Act. It acknowledged that the recommendations of the committee are then submitted to it whereupon it pays the claimant if appropriate. It however contended that the Applicants failed to demonstrate that they wrote a demand letter or visited the 1st Respondent to demand settlement of the claim prior to filing the application and as such, the application is premature.
18. It was submitted that in the absence of a demand, the Applicants cannot accuse the 1st Respondent of failing to perform its legal duty hence there is no basis for the court to grant the order of mandamus. It was contended that section 25(2) of the Act does not direct the 1st Respondent to pay compensation but rather, the section directs it to consider the recommendations of the committee and pay where it deems appropriate. Consequently, it was submitted that the order of mandamus does not apply to the 1st Respondent as far as payment of compensation is concerned. Reliance was placed on Republic -vs- Kenya Vision 2030 Delivery Board & Anor Ex-parte Eng. Judah Abehak [2015] KEHC 7078 (KLR) where the court stated;
“It follows that a court cannot compel a government agency to implement recommendations through an order of mandamus. Further, the only exemption where a court can compel a public agency to implement a recommendation is ‘where there is gross abuse of discretion, manifest injustice or palpable excess of authority’ equivalent to a denial of a settled right which petitioner is entitled, and there is no other plain, speedy and adequate remedy”
19. It was submitted that even after considering the recommendations of the committee and finding it appropriate to pay compensation, the 1st Respondent can only do so if funds are available at the National Treasury for that purpose. That, such funds, just like other government funds are usually estimated in the annual budget, approved and allocated to the service by the National Assembly as part of the Budget process then the National Treasury maintains custody of the funds till required.
20. As to whether the Respondents need to appear in court personally, reliance was placed on Article 156 (4)(b) for the submission that it is the duty of the Attorney General to represent the National Government in court. That, the 1st Respondent is an officer of the National Government and has a constitutional right to be represented by the Attorney General/State Counsel.
21. It was submitted that the Civil Procedure Act provides options for parties to appear in person or be represented by counsel. That, Order 51 Rule 16 of the Civil Procedure Rules provides for oral submissions or written submissions in which a party can be represented by counsel. Consequently, it was submitted that prayer 2 of the application should be dismissed.
22. As to whether the application should be dismissed for want of form, reliance was placed on Order 53 (3)(1) for the submission that once leave has been granted to apply for an order of judicial review, the application should be made within 21 days by notice of motion to the High Court. that, the application herein is defective for having been brought by way of Chamber Summons and should be dismissed with costs.
23. It was submitted that section 54 (4)(1) requires copies of the statement accompanying the application for leave to be served with the notice of motion. That, the Applicants did not file the said statements hence the application is due for dismissal for want of form. Reliance was placed on Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral & Boundaries Commission & 6 Others [2013] eKLR where the court stated;
“Article 159 of the Constitution, which commands courts to seek to render substantive justice, was not meant to aid in the destruction of rules of procedure and create an anarchical free-for-all in the administration of justice. The rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed.”
24. Further reliance was placed on Raila Odinga -vs- IEBC & Others [2013] eKLR where the court stated; “Article 159(2)(d) of the Constitution was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.”
25. As to whether the interest sought is deserved, it was submitted that it is not clear as to why the Applicants picked 03/02/2024 as the possible payment date of the claim putting in mind that that there has been no communication with the 1st Respondent who is responsible for settlement of claims. It was contended that it is not viable to base the prayer for interest on unreliable information. Reliance was placed on Arthur Kinuthia Albert -vs- Permanent Secretary, Ministry of Health (2008) eKLR where the court stated;
“The question I pose is whether it is this court to determine what sum is payable in term of interest. Judicial Review merely deals with the decision-making process but not the merit of the decision. In my view, the applicant’s counsel is calling upon this court to determine whether or not interest was payable to them and I am of the view that that is not the purview of this court’s jurisdiction…it is outside the court’s jurisdiction to assume and to determine whether or not interest was payable or how much is payable...”
26. It was submitted that section 25(3) of the Act only allows the 1st Respondent to pay kshs 5 million as compensation in case of death. That, it is not clear which statute the Applicants invoked to claim interest in addition to the 5 million. It was contended that the entire claim for interest should be dismissed. That, the application should also be dismissed with costs for lack of merit.
27. The 2nd Respondent did not file submissions. The submissions on the e-filing portal are dated 11/02/2025, in opposition to the application for leave dated 24/04/2024.
28. I have carefully considered the application, grounds of opposition, replying affidavit and the rival submissions, and I find that the following issues arise for determination;
a) Whether the Application is defective for want of form.
b) Whether the order of mandamus should be issued.
c) Whether the interest sought should be granted.
Whether the Application is defective for want of form.
29. The 1st Respondent contends that the application is defective as it was brought by way of Chamber Summons instead of Notice of Motion. Indeed, Order 53 Rule 3 of the Civil Procedure Rules (CPR) provides that
3. Application to be by notice of motion [Order 53, rule 3.]
(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.
(2) The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.
(3) An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.
(4) If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the court may direct
30. An application for an order of mandamus, prohibition or certiorari should be made to the High Court within 21 days after grant of leave and should be done by Notice of Motion. The application herein was brought by way of Chamber Summons, so the submission is true that the application does not conform in form. The issue is not the substance but the form of the application.
31. Order 2 Rule 14 of the CPR provides that; “No technical objection may be raised to any pleading on the ground of any want of form.” It is therefore clear that the justice system is inclined to substantive justice as opposed to driving parties away from the seat of justice on technicalities. As much as the 1st Respondent has argued that Article 159 of the Constitution was not meant to aid in the destruction of rules of procedure and create an anarchical free-for-all in the administration of justice, it would really be draconian to dismiss the application just because it was brought by way of Chamber Summons instead of Notice of Motion.
32. An elaboration of Article 159 of the Constitution was given by D. Musinga J in the matter of Uniconsult (K) Ltd [2012] KEHC 3653 (KLR) as follows;
“18.I have carefully considered all the submissions on record. The objections raised by the company regarding the petition are technical in nature. It must be realized that in the new constitutional dispensation that started after 27th August, 2010 when the Constitution of Kenya, 2010 was promulgated, courts are no longer shackled by procedural technicalities in dispensation of justice, particularly where the technicalities or procedural issues do not go to the root of the matter in issue or occasion substantial injustice or prejudice to any of the parties in a dispute. Courts today are required to ensure that substantial justice is administered without undue regard to such technicalities.
19. The provisions of Article 159 (2) (d) of the Constitution of Kenya, 2010 are very important in this regard. The inclusion of such a provision was very deliberate and I believe it was informed by public outcry regarding serious injustices that were occasioned to litigants due to the judiciary’s rigid observance of procedural technicalities. Article 159 (1) states that judicial authority is derived from the people and vests in and shall be exercised by the courts and tribunals established by or under this Constitution, and I may add, in accordance with the provisions of the Constitution. If courts continue to accord procedural technicalities undue prominence in administration of justice, they will be negating an important constitutional requirement.”
33. It is evident that counsel for the applicant did not change the heading from the application for leave but the substantive provisions of the law have been cited. The use of Chamber Summons has not affected the substance of the matter and has not prejudiced the Respondents in any way hence not a sufficient reason to dismiss the application.
Whether the order of mandamus should be issued.
34. An order of mandamus is codified in Order 53 of the CPR and it is trite that the purpose the order is to compel the performance of a public duty as stated in Republic -vs- Jomo Kenyatta University of Agriculture and Technology ex parte Elijah Kamau Mwangi [2021] eKLR to wit;
“The purpose of mandamus is to compel the performance of a public duty or any act contrary to or evasive of the law. It therefore lies against a public officer when some specific act or thing, which the law requires to be done, has been omitted. The conditions for its grant are that it must be shown that the public officer has failed to perform his duty; the court will not grant mandamus where there is an alternative remedy available to the applicant; and that it may be refused if the enforcement of the order will pose implementation challenges that require the Court’s supervision.”
35. In this case, it is not in dispute that the deceased died as a result of a snake bite and that an assessment of kshs 5 million compensation has already been done in favor of his estate. This is pursuant to section 25 of the Wildlife Conservation & Management Act which provides;
(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)………………………………………
(7)………………………………………
36. Does the 1st Respondent have the public duty to pay Ksh 5 million ? Do the applicants have any other remedy? Would the court have to supervise the performance of this duty?
37. The answer to the first question is in the affirmative. The procedure set down by the law on how that duty arises has already been complied with by the 2nd Respondent; The assessment and submission of the claim approved for compensation 01/02/2022 and recommendation for payment to the 1st Respondent .
38. The 1st Respondent argued that section 25(2) of the Act does not direct it to pay compensation but rather, the section directs it to consider the recommendations of the committee and pay where it deems appropriate. True, but clearly the consideration is also set out by the law. It is delineated to guide the Cabinet Secretary on the sums to be paid in the specific circumstances: in case of death, permanent disability or any other injury. There is no room for any other consideration by the Cabinet Secretary hence that argument is untenable. The CS is to consider what circumstance has been presented and pay appropriately.
39. The wording of section 25(3) of the Act (Supra) is ‘The Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate, pay compensation to the claimant as follows….(emphasis mine). It is really a straightforward interpretation and the Cabinet Secretary ought to pay.
40. The 1st Respondent has also argued that the Applicants have not demonstrated that they formally demanded for payment or visited the 1st Respondent to demand for payment. The notice to institute proceedings dated 06/03/2024 (NMM4) was addressed to the Director of Kenya Wildlife Services and the Attorney General (AG) whereupon they were duly notified that court proceedings would be instituted in the next 30 days if the claim of kshs 5 million remained unpaid. The 1st Respondent has argued in these proceedings that it should not be compelled to appear in person as its representative is the AG and that it has a right to be represented as such as per Article 156 (4)(b) of the Constitution and Order 51 Rule 6 of the CPR. There is no argument about that hence the reason why the same standard should be applied when the question arises as to whether a formal demand was done.
41. A formal demand was done to the AG and by extension, the demand was deemed to have been made to the 1st Respondent. Further, the leave to commence these proceedings was issued on 22/07/2024 and duly served upon the 1st Respondent. There was the first notice, then the second notice upon service of the application, the 1st Respondent should have construed the same as a demand for payment. Additionally,why would the Cabinet Secretary not put in internal mechanisms for payments upon approval as per the law? Why put Kenyans through the rigmarole of having to file suits for something that could be done as a formality, upon a schedule? I doubt that it was the intention of Parliament that victims would have to drag the government to court for compensation the same Government has approved. It is not right.
42. S. 25 (7) provides that the Cabinet Secretary may, by notice in the Gazette, prescribe such regulations and guidelines as are necessary and appropriate to carry out the purposes of this section.
43. The Cabinet Secretary gazetted LEGAL NOTICE 245 OF 2017 Wildlife Conservation and Management Act The Wildlife Conservation and Management (Compensation) Regulations, 2017
44. In those regulations , Regulation 11 provides for where the funds for compensation will come from:
(1)The Wildlife Compensation Scheme established under section 24 of the Act shall be funded through—
(a)monies specifically allocated for this purpose through the budget process;
(b)an insurance scheme to be established by the Cabinet Secretary responsible for matters relating to finance; and
(c)monies from any other source approved by the Cabinet Secretary for the time being responsible for matters relating to finance.
(2)The Wildlife Compensation Scheme shall be used for financing compensation claims for death or injury to human or damage to crop and property caused by wildlife
45. As to when the payment should be done regulation 27 states
(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.
46. This claim was due for payment in 2022 . It was not upon the applicants to demand payment but for the Cabinet Secreatray, according to his own regualations, to pay the sum upon receipt of the claim within 30 days . It is therefor ingenious for the 1st Respondent to argue that the applicants had not demonstrated that they had made a demand for payment. Even if that was so, there was a demand notice, these proceedings were instituted and the objections raised are not countenanced by the law. It cannot be he interests of justice for an approval which was done on 01/02/2022 to compensate for the death which occurred on 11/03/2018. There has been unreasonable delay by the 1st Respondent to do his duty to the applicants .
47. The applicants do not have any other recourse.
48. This court will not be re
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