REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
JUDICIAL REVIEW CASES NOS. E003, E004 & E005 OF 2025
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (ORDERS OF MANDAMUS)
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT, CAP 376 LAWS OF KENYA
BETWEEN
REPUBLIC ………………….……..……………………………….. APPLICANT
VERSUS
KENYA WILDLIFE SERVICE………….…………….……1 ST RESPONDENT
COUNTY WILDLIFE COMPENSATION
COMMITTEE, MAKUENI…………………………………2 ND RESPONDENT
MINISTERUAL WILDLIFE
COMPENSATION COMMITTE…………………...…….3 RD RESPONDENT
AND
MUTUKU MUIA (Suing as the legal representative of the estate of)
MWENDWA MUTUKU (Deceased)………………EX - PARTE APPLICANT IN E003 OF 2025
NYIVA KYALO (Suing as the legal representative of the estate of)
JACOB MUIA SAVALI (Deceased)…………………EX - PARTE APPLICANT IN E004 OF 2025
SAVETH KEKU (Suing as the legal representative of the estate of)
KEKU MUTISO (Deceased)…………………………EX - PARTE APPLICANT IN E005 OF 2025
JUDGMENT
1. Before me are the Applications dated 08/03/2025 and are brought under sections 8 & 9 of the Law Reform Act, Cap 26 Laws of Kenya, Order 53 of the Civil Procedure Rules and all enabling laws. They seek;
a) An order of mandamus to compel the Respondents to consider the Applicant’s claim and immediately release kshs 5,000,000.00 to the Applicant’s Advocate.
b) The costs of the application be provided for.
2. The Applications are supported by the grounds in the statutory statements dated 14/03/2025 and the verifying affidavits of Mutuku Muia, Nyiva Kyalo & Saveth Keku sworn on 14/03/2025 respectively.
3. Each deponed of being the legal representative of the respective deceased persons, Mwendwa Mutuku, Jacob Muia Savali and Keku Mutiso respectively. That, each was knowledgeable of the facts of the case hence competent to swear the affidavit.
4. That, on 03/09/2020, Mwendwa Mutuku was viciously attacked by a crocodile.
5. , On 19/11/2020, Jacob Muia Savali was viciously attacked by a crocodile
6. on 29/07/2021, Keku Mutiso was viciously attacked by a hippopotamus.
7. That, the each sustained fatal injuries due to the Respondents’ negligence and breach of statutory duty as governed by provisions of the Wildlife Conservation & Management Act (the Act).
8. That, the matters were to the police station whereupon the Respondents’ officers took details and promised to compensate the ex-parte Applicants for the deaths caused by wildlife. That, each filled the claim forms provided by the Respondents and upon following up at the County offices on 10/09/2023, 11/12/2023 and 11/12/2024 respectively, each was informed that the Ministerial Wildlife Compensation Committee had approved the awards.
9. That, in spite of the foregoing, each is yet to receive the compensation and have made follow up on various occasions but the Respondents have been each of them round in circles.
10. That, each has waited for between 4 and 5 years and the compensation continues to be delayed without any plausible explanation. That, each is apprehensive that unless this court intervenes and compels the Respondents to act on their decision and settle the claims, the Respondents will continue to ignore each of their demands hence corroding their confidence and that of the general public in the efficiency of administrative processes in Kenya.
11. Each of the Applications is opposed through the Replying Affidavit sworn by Ismene Feksi on 13/05/2025 who depones to being the 1 st Respondent’s Legal Officer fully conversant with the facts of the case and with authority to act on behalf of the 1 st Respondent.
12. It is deponed that each of the Applications is fatally defective and bad in law as each seeks to compel the 1 st Respondent to do that which is not within its mandate. That, the 1 st Respondent is established under section 6 of the Act and its functions are provided for under section 7 of the Act.
13. That, under section 7 of the Act, it is not within the 1 st Respondent’s mandate to constitute, sit and deliberate on the applicants claims and compensate the ex-parte Applicants.
14. It is deponed that the 2 nd Respondent is established under section 18 of the Act and 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. That, the 1 st Respondent is only the secretary to the committee established under section 18 of the Act.
15. That, the ex-parte Applicant (Mutuku Muia) was issued with claim compensation forms from the Ministry of Tourism and Wildlife which he filled and returned to the 1 st Respondent for processing and the same was approved for payment.
16. That, the ex-parte Applicant (Nyiva Kyalo) was issued with claim compensation forms from the Ministry of Tourism and Wildlife which she filled and returned to the 1 st Respondent for processing and the same was deferred due to inconsistencies in the date of death and proof of victim’s relationship to next of kin.
17. That, the ex-parte Applicant (Saveth Keku) was issued with claim compensation forms from the Ministry of Tourism and Wildlife which he filled and returned to the 1 st Respondent for processing and the same was approved for payment. The approvals and deferral are exhibited as IF 1.
18. That, section 25 of the Act places the role of payment of compensation squarely on the Cabinet Secretary, Ministry of Tourism & Wildlife. That, what the ex-parte Applicants are asking of this honorable court, through the reliefs sought, is tantamount to amendment of legislation through imposition of duty.
19. The Applications were canvassed through written submissions.
Ex-Parte Applicants’ Submissions
20. The issues for determination were identified to be;
a) Whether the 1 st Respondent is statutorily bound to manage national parks and reserves?
b) Whether the 1 st Respondent is mandated to compensate the ex-parte Applicants?
c) Whether the ex-parte Applicants are entitled to the orders of mandamus.
21. As to whether the 1 st Respondent is statutorily bound to manage national parks and reserves, reliance was placed on sections 6 & 7 of the Act for the submission that the 1 st Respondent has a statutory mandate to control wildlife.
22. As to whether the 1 st Respondent is mandated to compensate the ex-parte Applicants, it was submitted that the procedure to be followed for payment of damages is outlined in section 25 of the Act and reliance 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.”
23. Further reliance was placed on Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Ltd [2018] eKLR where the Supreme Court of Kenya stated;
“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 cost 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.”
24. Consequently, it was submitted that the duty to pay compensation has been positively determined by the Court of Appeal and Supreme Court. That, the 1 st Respondent is liable to compensate the ex-parte Applicant’s claim which has been approved pursuant to the laid down procedure.
25. As to whether the ex-parte Applicants are entitled to orders of mandamus, reliance was placed, inter alia , on Kenya Wildlife Service -vs- Abraham M’ngai M’itumitu [2021] KEHC 7105 (KLR) where the court stated;
“[11] Clearly, the appellant having awarded an amount under the Act, further intervention in court could only have been by the appeal process following upon the provision of the section, that is to say through the mechanism of a first appeal to the tribunal and thereafter a second appeal to the Environment and Land Court. The respondent may have opted to pursue its claim for compensation in negligence for damages for personal injury in the civil court as an alternative to the statutory compensation mechanism. Without deciding, I would consider that the respondent may also have pursed judicial review remedy in the High Court, if so advised by his advocates, for the award of the full award of compensation prescribed under the Act. The respondent may also, as he may be advised by his legal advisors, file an application for extension of time to pursue the appeal process set out in section 25 (6) of the Act. The court is not without sympathy for the family of the deceased but it considers that the procedure for the pursuit of compensation therefor was wrong, and the court acted without jurisdiction.”
26. It was submitted that various Judges of the High Court, faced with a similar application as the present one, have held that an ex-parte Applicant is within his/her right to file a judicial review application.
27. In response to the argument about inconsistencies on the details of the next of kin in E003 of 2025, it was submitted that the applicant is the administrator of the deceased’s estate and is pursuing the case on behalf of the estate and dependants of the deceased.
Submissions by the 1 st Respondent
28. The 1 st Respondent identified the issues for determination to be;
a) Whether the 1 st Respondent is a proper party in these proceedings and if so, whether there was a decision to compensate.
b) Whether the orders sought are available to the ex-parte Applicants.
29. It was submitted that the 1 st Respondent is an improper party in these proceedings and the reliefs sought against them cannot be granted. Reliance was placed on the following;
a) Republic -vs- County Government of Nairobi & 2 Others Ex-Parte Kingpost Limited [2021] eKLR where the court stated;
“In determining these issues, it is crucial to first lay down the principles that guide the Court when dealing with the judicial review remedy of mandamus, which the Ex-parte Applicant is seeking. The Court of Appeal in Commission on Administrative Justice vs Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR stated as follows: “As observed by the Judge and correctly so in our view, the principle that guides the High Court when dealing with the scope and efficacy of an order of mandamus was crystalized by the Court in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others (supra) namely: “The order of mandamus is of most extensive remedial nature and is in the form of a command issuing 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 of the nature of a 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 right, and it may issue in cases where although there is an alternative remedy, yet the mode of redress is not convenient, beneficial and effectual.”
b) Paragraph 90 Halsbury’s Law of England 4th Edition Volume 1 at 111;
“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
c) Republic -vs- The Commissioner of Lands and Another ex-Parte Kithinji Murugu M’agere; Nairobi High Court Misc. Application No. 395 of 2012 ;
“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…”
d) Republic -vs- Kenya Vision 2030 Delivery Board & Another Ex- parte Eng Judah Abekah [2015] eKLR ;
“From the cited decisions, it is apparent that an order of mandamus will issue to compel the performance of a statutory duty owed to an applicant. Therefore, the fulcrum of an order of mandamus is that a statutory duty must be owed to an applicant and the public officer or public body, after being asked to perform the duty, has refused or failed to discharge that duty and there is no other adequate remedy.”
30. Consequently, it was submitted that an order of mandamus cannot issue to compel the 1 st Respondent to perform a statutory duty owed to an Applicant by another institution totally different from the 1 st Respondent.
31. It was submitted that no decision has been made by the 2 nd or 3 rd Respondent compelling the 1 st Respondent to pay the ex-parte Applicants the amount of kshs 5,000,000/=. That, there is no law providing that where such an incident as this occurs, the 1 st Respondent is mandated to settle such an amount with or without the existence of the decision of the 2 nd and 3 rd Respondents. Reference was made to section 7 of the Act for the submission that the 1 st Respondent has no duty to compensate or pay compensation on claims resulting from loss or damage caused by wildlife.
32. It was submitted that the evidence annexed in the application and relied upon by the ex-parte applicants is inconclusive. That, there is also no evidence that the 2 nd Respondent has approved the said claim hence the submissions by the ex-parte Applicant are unsubstantiated and cannot be verified by this Honourable Court. That, the submission by the Applicant that the 1 st Respondent should take up the role of the 2 nd Respondent, and compensate the Applicant, is arbitrary and unlawful.
33. That, this court has a duty to interpret the law as is without any modifications whatsoever as well as a duty to examine the evidence adduced before it makes a determination based on the same. Reliance was placed on Republic -vs- County Government of Nairobi & 2 Others Ex-Parte Kingpost Limited [2021] eKLR where 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.”
34. It was submitted that the 1 st Respondent is improperly joined in these proceedings because the duty in question is the duty to compensate for losses and damage caused by wildlife and not the duty to manage wildlife. That, the process for compensation in claims of damage and loss caused by wildlife is clearly set out in sections 24 and 25 of the Act.
35. In conclusion, it was submitted that an order of mandamus can only issue to compel performance of a statutory duty owed to an Applicant and the 1 st Respondent has demonstrated that it has no statutory duty to compensate for claims of loss or damage caused by wildlife.
36. The 2 nd and 3 rd Respondents did not file submissions.
37. ANALYSIS AND DETERMINATION
38. I have carefully considered the Application, Replying Affidavit and the rival submissions. The following issues arise for determination;
a) Whether the 1 st Respondent is a proper party in these proceedings.
b) Whether the order of mandamus should be issued.
While I have considered all the authorities cited by all parties I noted that the 1 st respondent did not cite any that with reference to wildlife related issues yet they are there. Be that as it may…
Whether the 1 st Respondent is a proper party in these proceedings.
39. The 1 st Respondent (KWS) is established under section 6 of the Act and its functions are outlined under section 7. The Wildlife Compensation Scheme is established under section 24 and according to section 24(2), the scheme shall be used for financing compensation claims for human death or injury or crop and property damage caused by wildlife.
40. According to section 18(2) of the Act, an officer of KWS for the county serves as the secretary of the Community Wildlife Conservation Committee whose functions, under section 19, are;
(a)review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife;
(b)develop and implement, in collaboration with the Service and Community Wildlife Associations, mechanisms for mitigation of human wildlife conflict;
(c)bring together relevant stakeholders to harness participation in conservation and management programmes of wildlife; and
(d)perform such other functions as the Service may require or delegate to it.
41. The procedure for compensation is provided for in section 25 of the Act and according to section 25(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.’
42. Consequently, the duty of KWS is limited to verifying a claim and submitting it to the Cabinet Secretary together with recommendations thereon. It is therefore evident that KWS is a necessary party, in proceedings of compensation claims, for purposes of informing court whether it has discharged its mandate, and establishing that they have done their statutory duty.
43. In any event , the necessity of KWS as a party in these proceedings can be deduced from the holding of the Court of Appeal in KWS -vs- Joseph Musyoki Kalonzo (supra).
Whether the order of mandamus should be issued.
44. 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 by Nyamweya J (as she then was) 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.”
45. In this case, it is not in dispute that the deceased persons died as a result of attacks by wildlife namely crocodile and hippopotamus. Section 25 of the Act 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)………………………………………
46. The 1 st Respondent has acknowledged that it recommended the payment of kshs 5,000,000/= in the three claims and that it approved payments in claims E003 and E005. With regard to claim E004, the recommendation is captured as ‘deferred due to inconsistencies in date of death 19/1/2020 and 26/11/2020; provide proof of victims relationship to next of kin.’
47. The question which arises at this juncture is whether the CS-Ministry of Tourism & Wildlife has a duty to pay the amounts which have already been assessed by the 1 st Respondent. Indeed, the exhibited status reports (IF 1) show that the recommended amounts were approved in claims E003 and E005 and deferred in claim E004. Consequently, the duty to pay crystalizes once the amounts payable are assessed and approved by KWS. 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 that upon considering a recommendation and finding that it is appropriate, the Cabinet Secretary should pay.
48. The upshot of the foregoing is that the 3 rd Respondent has a duty to pay the assessed compensation of kshs 5 million to the ex-parte Applicants. The payment has been unreasonably delayed and there is no other adequate remedy available to the ex-parte Applicants.
49. With regard to deferred claim with respect to the ex-parte Applicant in claim E004 of 2025, the issues must have been settled when the grant of representation was issued to her (Nyiva Kyalo) on 10/03/2025 by the Chief Magistrates Court-Makueni in Misc. Cause No. E016 of 2025. Her relationship with the deceased is not in question. In the circumstances nothing stands between her and the compensation being released r.
50. While section 25(2) of the Act limits their duty 1 st and 2 nd Respondents, to verifying a claim and submitting it to the 3 rd Respondent together with recommendations thereon and the evidence shows that they have already discharged their duty.
51. There is nothing on record to show that there were any adverse recommendations by the 1 st respondent regarding the payment and as indicated herein above , the issue of the claim in E004 of 2025 was deemed as settled when the ex parte applicant was appointed as the administrator of the deceased’s estate for this purpose.
52. I repeat here the words of the Court of Appeal in Kenya Wildlife Services -vs- Joseph Musyoki Kalonzo (above)
“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.”
53. It is upon the respondents to do their duty. They each have roles to play in the final disbursement of every ascertained claim by a claimant. The law requires them to work in tandem. They should not leave any room for a claimant whose claim has been approved to follow-up or chase the claim/ cheques from their various offices. That is how corruption breeds, they should just ensure that the system works smoothly. From claim , through the committee through to payment. Delays should be explained through the same system.
54. In the circumstances , I find therefore that each of the application is merited to the following extent:
Final Orders:
a. An order of mandamus be and is hereby issued compelling the Respondents to consider each of the Applicant’s claims in accordance with their statutory mandates.
b. An order of mandamus be and is hereby issued compelling the Respondents to pay the sum of kshs 5,000,000.00 to each of the ex parte applicants.
c. The costs of the application be borne by the respondents .
Orders accordingly
RULING, dated, signed and delivered virtually this 8 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Applicants’ Advocate
Simiyu, Opondo, Kiranga & Co. Advocates
1st Respondent’s Advocate
Joyce Thirikwa Advocate
N/A for 2nd and 3rd Respondents
HCJR No. E003, E004,E005 of 2025 Page 2 of 2
IN THE HIGH COURT AT MAKUENI
JUDICIAL REVIEW CASES NOS. E003, E004 & E005 OF 2025
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (ORDERS OF MANDAMUS)
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT, CAP 376 LAWS OF KENYA
BETWEEN
REPUBLIC ………………….……..……………………………….. APPLICANT
VERSUS
KENYA WILDLIFE SERVICE………….…………….……1 ST RESPONDENT
COUNTY WILDLIFE COMPENSATION
COMMITTEE, MAKUENI…………………………………2 ND RESPONDENT
MINISTERUAL WILDLIFE
COMPENSATION COMMITTE…………………...…….3 RD RESPONDENT
AND
MUTUKU MUIA (Suing as the legal representative of the estate of)
MWENDWA MUTUKU (Deceased)………………EX - PARTE APPLICANT IN E003 OF 2025
NYIVA KYALO (Suing as the legal representative of the estate of)
JACOB MUIA SAVALI (Deceased)…………………EX - PARTE APPLICANT IN E004 OF 2025
SAVETH KEKU (Suing as the legal representative of the estate of)
KEKU MUTISO (Deceased)…………………………EX - PARTE APPLICANT IN E005 OF 2025
JUDGMENT
1. Before me are the Applications dated 08/03/2025 and are brought under sections 8 & 9 of the Law Reform Act, Cap 26 Laws of Kenya, Order 53 of the Civil Procedure Rules and all enabling laws. They seek;
a) An order of mandamus to compel the Respondents to consider the Applicant’s claim and immediately release kshs 5,000,000.00 to the Applicant’s Advocate.
b) The costs of the application be provided for.
2. The Applications are supported by the grounds in the statutory statements dated 14/03/2025 and the verifying affidavits of Mutuku Muia, Nyiva Kyalo & Saveth Keku sworn on 14/03/2025 respectively.
3. Each deponed of being the legal representative of the respective deceased persons, Mwendwa Mutuku, Jacob Muia Savali and Keku Mutiso respectively. That, each was knowledgeable of the facts of the case hence competent to swear the affidavit.
4. That, on 03/09/2020, Mwendwa Mutuku was viciously attacked by a crocodile.
5. , On 19/11/2020, Jacob Muia Savali was viciously attacked by a crocodile
6. on 29/07/2021, Keku Mutiso was viciously attacked by a hippopotamus.
7. That, the each sustained fatal injuries due to the Respondents’ negligence and breach of statutory duty as governed by provisions of the Wildlife Conservation & Management Act (the Act).
8. That, the matters were to the police station whereupon the Respondents’ officers took details and promised to compensate the ex-parte Applicants for the deaths caused by wildlife. That, each filled the claim forms provided by the Respondents and upon following up at the County offices on 10/09/2023, 11/12/2023 and 11/12/2024 respectively, each was informed that the Ministerial Wildlife Compensation Committee had approved the awards.
9. That, in spite of the foregoing, each is yet to receive the compensation and have made follow up on various occasions but the Respondents have been each of them round in circles.
10. That, each has waited for between 4 and 5 years and the compensation continues to be delayed without any plausible explanation. That, each is apprehensive that unless this court intervenes and compels the Respondents to act on their decision and settle the claims, the Respondents will continue to ignore each of their demands hence corroding their confidence and that of the general public in the efficiency of administrative processes in Kenya.
11. Each of the Applications is opposed through the Replying Affidavit sworn by Ismene Feksi on 13/05/2025 who depones to being the 1 st Respondent’s Legal Officer fully conversant with the facts of the case and with authority to act on behalf of the 1 st Respondent.
12. It is deponed that each of the Applications is fatally defective and bad in law as each seeks to compel the 1 st Respondent to do that which is not within its mandate. That, the 1 st Respondent is established under section 6 of the Act and its functions are provided for under section 7 of the Act.
13. That, under section 7 of the Act, it is not within the 1 st Respondent’s mandate to constitute, sit and deliberate on the applicants claims and compensate the ex-parte Applicants.
14. It is deponed that the 2 nd Respondent is established under section 18 of the Act and 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. That, the 1 st Respondent is only the secretary to the committee established under section 18 of the Act.
15. That, the ex-parte Applicant (Mutuku Muia) was issued with claim compensation forms from the Ministry of Tourism and Wildlife which he filled and returned to the 1 st Respondent for processing and the same was approved for payment.
16. That, the ex-parte Applicant (Nyiva Kyalo) was issued with claim compensation forms from the Ministry of Tourism and Wildlife which she filled and returned to the 1 st Respondent for processing and the same was deferred due to inconsistencies in the date of death and proof of victim’s relationship to next of kin.
17. That, the ex-parte Applicant (Saveth Keku) was issued with claim compensation forms from the Ministry of Tourism and Wildlife which he filled and returned to the 1 st Respondent for processing and the same was approved for payment. The approvals and deferral are exhibited as IF 1.
18. That, section 25 of the Act places the role of payment of compensation squarely on the Cabinet Secretary, Ministry of Tourism & Wildlife. That, what the ex-parte Applicants are asking of this honorable court, through the reliefs sought, is tantamount to amendment of legislation through imposition of duty.
19. The Applications were canvassed through written submissions.
Ex-Parte Applicants’ Submissions
20. The issues for determination were identified to be;
a) Whether the 1 st Respondent is statutorily bound to manage national parks and reserves?
b) Whether the 1 st Respondent is mandated to compensate the ex-parte Applicants?
c) Whether the ex-parte Applicants are entitled to the orders of mandamus.
21. As to whether the 1 st Respondent is statutorily bound to manage national parks and reserves, reliance was placed on sections 6 & 7 of the Act for the submission that the 1 st Respondent has a statutory mandate to control wildlife.
22. As to whether the 1 st Respondent is mandated to compensate the ex-parte Applicants, it was submitted that the procedure to be followed for payment of damages is outlined in section 25 of the Act and reliance 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.”
23. Further reliance was placed on Kenya Wildlife Service -vs- Rift Valley Agricultural Contractors Ltd [2018] eKLR where the Supreme Court of Kenya stated;
“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 cost 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.”
24. Consequently, it was submitted that the duty to pay compensation has been positively determined by the Court of Appeal and Supreme Court. That, the 1 st Respondent is liable to compensate the ex-parte Applicant’s claim which has been approved pursuant to the laid down procedure.
25. As to whether the ex-parte Applicants are entitled to orders of mandamus, reliance was placed, inter alia , on Kenya Wildlife Service -vs- Abraham M’ngai M’itumitu [2021] KEHC 7105 (KLR) where the court stated;
“[11] Clearly, the appellant having awarded an amount under the Act, further intervention in court could only have been by the appeal process following upon the provision of the section, that is to say through the mechanism of a first appeal to the tribunal and thereafter a second appeal to the Environment and Land Court. The respondent may have opted to pursue its claim for compensation in negligence for damages for personal injury in the civil court as an alternative to the statutory compensation mechanism. Without deciding, I would consider that the respondent may also have pursed judicial review remedy in the High Court, if so advised by his advocates, for the award of the full award of compensation prescribed under the Act. The respondent may also, as he may be advised by his legal advisors, file an application for extension of time to pursue the appeal process set out in section 25 (6) of the Act. The court is not without sympathy for the family of the deceased but it considers that the procedure for the pursuit of compensation therefor was wrong, and the court acted without jurisdiction.”
26. It was submitted that various Judges of the High Court, faced with a similar application as the present one, have held that an ex-parte Applicant is within his/her right to file a judicial review application.
27. In response to the argument about inconsistencies on the details of the next of kin in E003 of 2025, it was submitted that the applicant is the administrator of the deceased’s estate and is pursuing the case on behalf of the estate and dependants of the deceased.
Submissions by the 1 st Respondent
28. The 1 st Respondent identified the issues for determination to be;
a) Whether the 1 st Respondent is a proper party in these proceedings and if so, whether there was a decision to compensate.
b) Whether the orders sought are available to the ex-parte Applicants.
29. It was submitted that the 1 st Respondent is an improper party in these proceedings and the reliefs sought against them cannot be granted. Reliance was placed on the following;
a) Republic -vs- County Government of Nairobi & 2 Others Ex-Parte Kingpost Limited [2021] eKLR where the court stated;
“In determining these issues, it is crucial to first lay down the principles that guide the Court when dealing with the judicial review remedy of mandamus, which the Ex-parte Applicant is seeking. The Court of Appeal in Commission on Administrative Justice vs Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR stated as follows: “As observed by the Judge and correctly so in our view, the principle that guides the High Court when dealing with the scope and efficacy of an order of mandamus was crystalized by the Court in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others (supra) namely: “The order of mandamus is of most extensive remedial nature and is in the form of a command issuing 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 of the nature of a 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 right, and it may issue in cases where although there is an alternative remedy, yet the mode of redress is not convenient, beneficial and effectual.”
b) Paragraph 90 Halsbury’s Law of England 4th Edition Volume 1 at 111;
“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
c) Republic -vs- The Commissioner of Lands and Another ex-Parte Kithinji Murugu M’agere; Nairobi High Court Misc. Application No. 395 of 2012 ;
“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…”
d) Republic -vs- Kenya Vision 2030 Delivery Board & Another Ex- parte Eng Judah Abekah [2015] eKLR ;
“From the cited decisions, it is apparent that an order of mandamus will issue to compel the performance of a statutory duty owed to an applicant. Therefore, the fulcrum of an order of mandamus is that a statutory duty must be owed to an applicant and the public officer or public body, after being asked to perform the duty, has refused or failed to discharge that duty and there is no other adequate remedy.”
30. Consequently, it was submitted that an order of mandamus cannot issue to compel the 1 st Respondent to perform a statutory duty owed to an Applicant by another institution totally different from the 1 st Respondent.
31. It was submitted that no decision has been made by the 2 nd or 3 rd Respondent compelling the 1 st Respondent to pay the ex-parte Applicants the amount of kshs 5,000,000/=. That, there is no law providing that where such an incident as this occurs, the 1 st Respondent is mandated to settle such an amount with or without the existence of the decision of the 2 nd and 3 rd Respondents. Reference was made to section 7 of the Act for the submission that the 1 st Respondent has no duty to compensate or pay compensation on claims resulting from loss or damage caused by wildlife.
32. It was submitted that the evidence annexed in the application and relied upon by the ex-parte applicants is inconclusive. That, there is also no evidence that the 2 nd Respondent has approved the said claim hence the submissions by the ex-parte Applicant are unsubstantiated and cannot be verified by this Honourable Court. That, the submission by the Applicant that the 1 st Respondent should take up the role of the 2 nd Respondent, and compensate the Applicant, is arbitrary and unlawful.
33. That, this court has a duty to interpret the law as is without any modifications whatsoever as well as a duty to examine the evidence adduced before it makes a determination based on the same. Reliance was placed on Republic -vs- County Government of Nairobi & 2 Others Ex-Parte Kingpost Limited [2021] eKLR where 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.”
34. It was submitted that the 1 st Respondent is improperly joined in these proceedings because the duty in question is the duty to compensate for losses and damage caused by wildlife and not the duty to manage wildlife. That, the process for compensation in claims of damage and loss caused by wildlife is clearly set out in sections 24 and 25 of the Act.
35. In conclusion, it was submitted that an order of mandamus can only issue to compel performance of a statutory duty owed to an Applicant and the 1 st Respondent has demonstrated that it has no statutory duty to compensate for claims of loss or damage caused by wildlife.
36. The 2 nd and 3 rd Respondents did not file submissions.
37. ANALYSIS AND DETERMINATION
38. I have carefully considered the Application, Replying Affidavit and the rival submissions. The following issues arise for determination;
a) Whether the 1 st Respondent is a proper party in these proceedings.
b) Whether the order of mandamus should be issued.
While I have considered all the authorities cited by all parties I noted that the 1 st respondent did not cite any that with reference to wildlife related issues yet they are there. Be that as it may…
Whether the 1 st Respondent is a proper party in these proceedings.
39. The 1 st Respondent (KWS) is established under section 6 of the Act and its functions are outlined under section 7. The Wildlife Compensation Scheme is established under section 24 and according to section 24(2), the scheme shall be used for financing compensation claims for human death or injury or crop and property damage caused by wildlife.
40. According to section 18(2) of the Act, an officer of KWS for the county serves as the secretary of the Community Wildlife Conservation Committee whose functions, under section 19, are;
(a)review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife;
(b)develop and implement, in collaboration with the Service and Community Wildlife Associations, mechanisms for mitigation of human wildlife conflict;
(c)bring together relevant stakeholders to harness participation in conservation and management programmes of wildlife; and
(d)perform such other functions as the Service may require or delegate to it.
41. The procedure for compensation is provided for in section 25 of the Act and according to section 25(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.’
42. Consequently, the duty of KWS is limited to verifying a claim and submitting it to the Cabinet Secretary together with recommendations thereon. It is therefore evident that KWS is a necessary party, in proceedings of compensation claims, for purposes of informing court whether it has discharged its mandate, and establishing that they have done their statutory duty.
43. In any event , the necessity of KWS as a party in these proceedings can be deduced from the holding of the Court of Appeal in KWS -vs- Joseph Musyoki Kalonzo (supra).
Whether the order of mandamus should be issued.
44. 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 by Nyamweya J (as she then was) 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.”
45. In this case, it is not in dispute that the deceased persons died as a result of attacks by wildlife namely crocodile and hippopotamus. Section 25 of the Act 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)………………………………………
46. The 1 st Respondent has acknowledged that it recommended the payment of kshs 5,000,000/= in the three claims and that it approved payments in claims E003 and E005. With regard to claim E004, the recommendation is captured as ‘deferred due to inconsistencies in date of death 19/1/2020 and 26/11/2020; provide proof of victims relationship to next of kin.’
47. The question which arises at this juncture is whether the CS-Ministry of Tourism & Wildlife has a duty to pay the amounts which have already been assessed by the 1 st Respondent. Indeed, the exhibited status reports (IF 1) show that the recommended amounts were approved in claims E003 and E005 and deferred in claim E004. Consequently, the duty to pay crystalizes once the amounts payable are assessed and approved by KWS. 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 that upon considering a recommendation and finding that it is appropriate, the Cabinet Secretary should pay.
48. The upshot of the foregoing is that the 3 rd Respondent has a duty to pay the assessed compensation of kshs 5 million to the ex-parte Applicants. The payment has been unreasonably delayed and there is no other adequate remedy available to the ex-parte Applicants.
49. With regard to deferred claim with respect to the ex-parte Applicant in claim E004 of 2025, the issues must have been settled when the grant of representation was issued to her (Nyiva Kyalo) on 10/03/2025 by the Chief Magistrates Court-Makueni in Misc. Cause No. E016 of 2025. Her relationship with the deceased is not in question. In the circumstances nothing stands between her and the compensation being released r.
50. While section 25(2) of the Act limits their duty 1 st and 2 nd Respondents, to verifying a claim and submitting it to the 3 rd Respondent together with recommendations thereon and the evidence shows that they have already discharged their duty.
51. There is nothing on record to show that there were any adverse recommendations by the 1 st respondent regarding the payment and as indicated herein above , the issue of the claim in E004 of 2025 was deemed as settled when the ex parte applicant was appointed as the administrator of the deceased’s estate for this purpose.
52. I repeat here the words of the Court of Appeal in Kenya Wildlife Services -vs- Joseph Musyoki Kalonzo (above)
“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.”
53. It is upon the respondents to do their duty. They each have roles to play in the final disbursement of every ascertained claim by a claimant. The law requires them to work in tandem. They should not leave any room for a claimant whose claim has been approved to follow-up or chase the claim/ cheques from their various offices. That is how corruption breeds, they should just ensure that the system works smoothly. From claim , through the committee through to payment. Delays should be explained through the same system.
54. In the circumstances , I find therefore that each of the application is merited to the following extent:
Final Orders:
a. An order of mandamus be and is hereby issued compelling the Respondents to consider each of the Applicant’s claims in accordance with their statutory mandates.
b. An order of mandamus be and is hereby issued compelling the Respondents to pay the sum of kshs 5,000,000.00 to each of the ex parte applicants.
c. The costs of the application be borne by the respondents .
Orders accordingly
RULING, dated, signed and delivered virtually this 8 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Applicants’ Advocate
Simiyu, Opondo, Kiranga & Co. Advocates
1st Respondent’s Advocate
Joyce Thirikwa Advocate
N/A for 2nd and 3rd Respondents
HCJR No. E003, E004,E005 of 2025 Page 2 of 2