Before this Court is the Ex Parte Applicant’s Notice of Motion seeking an order of mandamus to compel the Respondents to pay/compensation the Applicants herein the sum of Kenya Shillings Five Million (Kshs. 5,000,000/=) arising from the death of the deceased, Erick Okunya, who was fatally attacked by a crocodile.
The application is premised upon the grounds set out in the Statutory Statement and Verifying Affidavit filed herein. The Applicant contends that on or about 16th April 2019, her husband, Erick Okunya, was attacked and killed by a crocodile while fetching water from a lake within the jurisdiction of the relevant County Wildlife Conservation and Compensation Committee.
Following the incident, a claim for compensation was lodged in accordance with the provisions of the Wildlife Conservation and Management Act, 2013. The claim was considered by the competent statutory body which recommended compensation in the sum of Kshs. 5,000,000/=.
Despite the recommendation and approval of the claim, the compensation has not been paid to the Applicant. It is her case that the Respondents have failed, neglected and/or refused to perform their statutory duty thereby necessitating the institution of these proceedings.
During the hearing, learned counsel for the 1st Respondent, Mr. Karinga, confirmed that the compensation recommended in favour of the Applicant had not been paid.
The Respondents however urged the Court to decline the orders sought on grounds that payment is dependent upon budgetary allocations and availability of funds from the National Government.
The Respondents opposed the application through Replying Affidavit sworn on 22nd October 2025 as follows:
THAT I am the 1st Respondent’s Legal Officer, fully conversant with the facts of this case, thus competent to make this Affidavit.
THAT I have read and understood the Notice of Motion Application dated 16th May, 2025, the Statutory Statement, and the verifying affidavit of Francis Mohamed Mukama sworn on 25th February 2025 and the Annexures thereto and in response wish to state as follows.
THAT the Application is fatally defective and bad in law for want of leave having been filed outside the 21 days leave granted in the orders issued in HCJRMISC/E001/2025 on 26th February, 2025.
THAT the application is premature and bad in law to the extent that it seeks to compel the 1st Respondent to do that which is not within the 1st Respondent’s mandate.
THAT the 1st Respondent is established under Section 6 of the Wildlife Conservation and Management Act, 2013 and its functions provided for under section 7 of the Act.
THAT it is not the duty of the 1st Respondent under section 7 of the Wildlife Conservation and Management Act, 2013 and it is not within the Respondent’s statutory mandate to compensate the ex parte Applicant.
THAT the 2nd Respondent, the County Wildlife Conservation Committee of Migori as established under section 18 of the Wildlife Conservation and Management Act, 2013 (WCMA) is mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under sections 19(1) and 25(2) of the WCMA.
THAT the 1st Respondent is only the secretary to the County Wildlife Conservation Committee established under Section 18 of the Wildlife Conservation and Management Act, 2013.
THAT the Migori County Wildlife Conservation Committee considered the Applicant’s claim for compensation and recommended the same for compensation to the Cabinet Secretary, Ministry of Tourism and Wildlife in accordance with section 25(2) of the WCMA.
THAT the claim is thus pending before the Cabinet Secretary.
THAT the 1st Respondent has clearly discharged its mandate as Secretary to the 2nd Respondent, reviewed and made recommendations on the claim and forwarded the same to the Cabinet Secretary.
THAT under section 25(3) of the Wildlife Conservation and Management Act, the Cabinet Secretary is mandated to consider the 2nd Respondent’s recommendations and where appropriate pay compensation.
THAT the 1st and 2nd Respondents have considered the ex parte Applicant’s claim and made recommendations, thus the prayer for this has been spent.
THAT as regards release of any compensation to the ex parte Applicant’s advocates as sought, I reiterate that the claim is pending consideration and payment where appropriate, by the Cabinet Secretary who is so mandated under section 25(3) of the Wildlife Conservation and Management Act.
THAT from the foregoing, it is clear that the 1st Respondent duly performed their statutory duty under the Wildlife Conservation and Management Act and the Applicant’s allegations remain spurious and the suit herein is unmerited, an abuse of the court process and the reliefs sought are unwarranted.
THAT the Application is not merited as against the 1st Respondent and should be dismissed with costs.
THAT what is deponed to herein is true to the best of my knowledge, information and belief save where otherwise stated sources whereof have been disclosed.
Applicant’s Submissions are dated 15TH April 2026 and are to the effect that:-
The Ex Parte Applicant through his Advocates filed an Application dated 16th May 2025 having been granted leave to do so by this Court. The Application seeks for an order of mandamus to compel the Respondents and especially the 1st Respondent to release the sum of Kshs. 5,000,000/ = to the Ex Parte Applicant's Advocates.
Background
The background to this Application is that the Ex Parte Applicant is a next of kin and the legal representative of the Estate of ERICK OOKO OKUNYA (hereinafter referred to as the deceased). On 16.4.2019, the deceased was viciously attacked and fatally injured by a Hippopotamus as a result of the 1st Respondent's negligence and/or breach of Statutory duty as governed by the provisions of the Wildlife Conservation and Management Act, No. 47 of 2013 (hereinafter referred to as the Act).
The Ex Parte Applicant together with the Family reported the incident at Magunga Police Station after which the 1st Respondent's Officers came and took the details and promised to compensate them for the loss of their kin.
The 2nd Respondent convened a meeting on 6.12.2020 as regards the claim for compensation. The Committee reviewed all the lodged claims and maked appropriate recommendations to the Ministerial Wildlife Compensation Committee (MWCC), the 3rd Respondent herein, that then validates and approves payment of the awards by the aforesaid Committee. The 3rd Respondent had their meeting on 1.2.2022 and approved the claim for compensation for an amount of Kshs. 5,000,000/=. After several follow ups with the 1st Respondent, the Ex parte Applicant was later on provided with a Claimant's Bank Account details form, which he filled.
In spite of the foregoing course of events, the Ex parte Applicant was yet to receive the compensation on behalf of the deceased husband and son respectively. That the 1st Exparte Applicant had on various occasions made a follow up on the compensation but the 1st Respondent had not been forthcoming with feedback and had been taking them round in circles.
That it has been over Seven (7) years and the Respondents are yet to make good their promise for compensation even after the requisite meetings and the approval of the claim by the relevant committees. The Respondents continue to delay the compensation without any plausible explanations hence the present application for mandamus to compel them to do that which they are mandated to.
The Ex parte Applicant is apprehensive that unless this court intervenes and compels the Respondents to make good their promise for compensation and or act on their decision for the same, the Respondents will continue to ignore their demands for compensation and thus corrode and erode the confidence of the Ex Parte Applicant and the general public in the efficiency of the administrative process in Kenya.
The Applicant’s counsel identified issues for determination as:-
a) Whether the 1st Respondent is statutorily bound to manage national parks and reserves.
b) Whether the 1st Respondent is mandated to compensate the Ex Parte Applicant.
c) Whether the Ex Parte Applicant is entitled to the orders for mandamus.
On the first issue, the court was invited to look at the statute that establishes the 1st Respondent herein and the functions spelt out therein. They relied on Sections 6 and 7 of the Wildlife Conservation and Management Act, 2013 (the Act) respectively which establishes the 1st Respondent to perform the following functions, inter alia :"7. The functions of the Service shall be to —
(a) conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction;
(b) provide security for wildlife and visitors in national parks, wildlife conservation areas and sanctuaries;
The Applicant submitted that the legal capacity and the mandate of the 1st Respondent with regards to the case at hand is clear from the above provisions. Amongst them incudes the management of the National Parks, Wildlife Conservation areas and sanctuaries under its jurisdiction. This would imply that the 1 st Respondent has a statutory mandate to control wildlife.
On whether the 1st Respondent is mandated to compensate the Ex Parte Applicant, it was submitted that the procedure for compensation is outlined under Section 25 of the Act which provides as follows:-
"1)Where any person suffers any bodily injury or is Idlled by any wildlife listed under the Third Schedule, the person injured, or in the case of a deceased person, the personal representatives 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. ln the case of death, five million shillings;
b. ln the case of injury occasioning permanent disability, three million shillings;
c. ln the case of any other injury, a maximum of two million shillings, depending on the extent of the injury."
The Applicant cited the holding of the Court of Appeal which stated that the duty to manage the Nadonal Parks and reserves comes with the attendant responsibility to shoulder claims arising out of loss, injury or damage caused to property and human life by wildlife. The Court of Appeal in Kenya Wildlife Service vs Joseph Musyoki Kalonzo [2017] eKLR stipulated as follows on this issue:-
"The appellant admits the duty to manage and conserve wildlife. That duty comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty. The law on that point as succinctly pronounced in Joseph Boru Ngera & Another vs Kenya
Wildlife Service vs Rift Valley agricultural Contractors Limited [2014] eKLR among others is still good law on this point. The cabinet secretary referred to in the Act pays money on behalf of the appellant. Neither the court nor the parties should concern themselves with the internal arrangements of the appellant as to whether it is the CEO of the appellant or the Cabinet Secretary who should disburse the money."
The holding of the Supreme Court was also relied upon where in Kenya Wildlife Service —vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No 11 of 2015 (2018) eKLR stated as follows at paragraph 66:-
'A global comparison of laws and jurisprudence relating to animal and wildlife management normally provide that an entity charged with such a management task also collects the revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation for damage made by animals and wildlife...The Wildlife Act gives responsibility to Kenya Wildlife Service as the park revenue collector to compensate for damage occasioned by wild animals.'
In view of the foregoing, it was submitted that it was evident that the duty to pay compensation has been positively determined by the Court of Appeal and the Supreme Court. It was therefore submitted that the 1st Respondent was liable to compensate the ex parte applicant, the applicant's claim having been approved following the laid down procedures under Section 25 of the Wildlife Conservation and Management Act as stated above. The 1st Respondent therefore owes the applicant the amount of KShs. 5,000,000/ = as compensation for the fatal injury of her kin.
On whether the Ex Parte Applicant is entitled to the order of mandamus it was submitted that the 1st Respondent had failed to satisfy the said recommendation despite several follow ups by the ex parte Applicants prompting them to file the present application for mandamus.
The Court in Kenya Wildlife Service vs Awuor (Civil Appeal E013 of 2022) [20231 KEHC 3721 (KLR) (26 April 2023) (Judgment) and Kenya Wildlife Service vs Abraham M'ngai M'itumitu [2021] eKLR held as follows:-
"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 pursued 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 Applicant’s Counsel also relied on the recent cases of
a) Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte
Applicant) (Judicial Review Application E003 of 2024) [20241
8086 (KLR);
b) JOYCE ATIENO OGUNA (Suing as the legal representative and administrator of the Estate of PETER OUMA OGOLA-DCD) VS KENYA WILDLIFE SERVICE AND COUNTY WILDLIFE COMPENSATION COMMITTE, HOMABAY AND 1 Others -Siaya
HCJRMISC/E002/2024;
c) DONGOL ELEMAN KOKOI VS WILDLIFE SERVICE
AND COUNTY WILDLIFE COMPENSATION COMMITTE,
TURKANA AND 1 Others -Lodwar HCJR No. E003 of 2024) and
d) SALONIK MURUNYA PARMUAI VS KENYA WILDLIFE SERVICE AND COUNTY WILDLIFE COMPENSATION COMMITTE, HOMABAY AND 1 Others- Narok HCJR/E002/2024 where various Learned Judges of the High Court faced with a similar application as the present one in Court and relying on the above authorities held that the Ex Parte Applicant was within her right to file the Judicial Review Application. The Court went ahead and granted the Application for an order of mandamus compelling the 1st Respondent therein (Kenya Wildlife Service) to pay the amount of Kshs. 5,000,000/ = as compensation for the death of the deceased. In light of the foregoing cases, it is our submission that the ex parte applicant is within his right to file the instant judicial review to enforce the compensation.
In conclusion, it was submitted that the Ex parte Applicant had shown that the Wildlife Conservation and Management Committee recommended for compensation in the sum of Kshs. 5,000,000/ = for the death of their kin as provided for under Section 25 of the Act. Having established that the 1st Respondent's duty to manage and conserve wildlife comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty, it is the ex parte Applicant's case that the 1st Respondent had failed to satisfy the recommendation for compensation and the Ex Parte applicant is entitled to the order of mandamus as sought in the application before this Court. Costs were also prayed for.
The Applicant therefore urges the Court to issue an order of mandamus compelling payment.
The Respondents submitted that although compensation was recommended, payment is subject to budgetary processes and availability of funds.
It is their position that the Court should take into account practical constraints affecting implementation of the recommendation.
Nevertheless, the Respondents do not dispute the occurrence of the crocodile attack, the death of the deceased, or the recommendation for compensation.
ANALYSIS AND DETERMINATION
Having considered the pleadings, affidavits and submissions of the parties, the following issues arise for determination:
i. Whether the Applicant has established a legal right to the compensation recommended by the competent statutory body.
ii. Whether the Respondents have failed to perform a statutory duty.
iii. Whether an order of mandamus should issue.
iv. Who bears the costs.
Judicial review is concerned with the legality of decision-making processes and the performance of public duties by public bodies. The remedy of mandamus issues to compel the performance of a public duty imposed by statute where a public authority has failed, neglected or refused to perform that duty. The material before the Court demonstrates that Erick Okunya died following a crocodile attack. A claim for compensation was thereafter lodged pursuant to the Wildlife Conservation and Management Act, 2013. It is not disputed that the competent statutory committee considered the claim and recommended compensation in the sum of Kshs. 5,000,000/=. Equally, it is not disputed that the recommended compensation has not been paid. Indeed, learned counsel appearing for the 1st Respondent candidly informed the Court that payment remains outstanding.
The question that therefore falls for determination is whether the Respondents can lawfully fail to pay compensation that has already been recommended and approved under the statutory framework.
In this Court’s view, once the statutory process culminated in the recommendation and approval of compensation, the Respondents became obligated to take the necessary administrative and financial steps towards settlement of the claim.
The Court is not being called upon to assess liability afresh or determine the amount payable. Those matters were conclusively addressed through the statutory mechanism established under the Wildlife Conservation and Management Act. What remains is implementation of the recommendation. The explanation that payment is contingent upon budgetary allocation cannot, without more, justify indefinite non-payment of a lawful claim. Public authorities cannot rely on administrative or budgetary challenges to defeat rights that have already crystallized under the law. To permit such a position would render the compensation framework under the Act illusory and deny successful claimants the benefit of decisions lawfully made in their favour. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The prolonged failure to settle compensation that has already been approved is inconsistent with those constitutional imperatives. This Court is therefore satisfied that the Applicant has established a clear legal right arising from the recommendation of compensation and that the Respondents have failed to perform a statutory duty imposed upon them by law. This is a proper case for the grant of an order of mandamus.
Accordingly, the Notice of Motion is merited and is hereby allowed.
The Court makes the following orders:
a. An Order of Mandamus is hereby issued compelling the Respondents jointly and severally to process and pay to the Applicant the sum of Kenya Shillings Five Million (Kshs. 5,000,000/=) being compensation awarded in respect of the death of Erick Okunya following a crocodile attack.
b. The said payment shall be effected within ninety (90) days from the date of this judgment.
c. In default of compliance within the stipulated period, the Applicant shall be at liberty to pursue all lawful enforcement mechanisms available under the law.
d. The Applicant shall have the costs of these proceedings together with interest thereon at court rates.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 25TH DAY OFJUNE, 2026.
The application is premised upon the grounds set out in the Statutory Statement and Verifying Affidavit filed herein. The Applicant contends that on or about 16th April 2019, her husband, Erick Okunya, was attacked and killed by a crocodile while fetching water from a lake within the jurisdiction of the relevant County Wildlife Conservation and Compensation Committee.
Following the incident, a claim for compensation was lodged in accordance with the provisions of the Wildlife Conservation and Management Act, 2013. The claim was considered by the competent statutory body which recommended compensation in the sum of Kshs. 5,000,000/=.
Despite the recommendation and approval of the claim, the compensation has not been paid to the Applicant. It is her case that the Respondents have failed, neglected and/or refused to perform their statutory duty thereby necessitating the institution of these proceedings.
During the hearing, learned counsel for the 1st Respondent, Mr. Karinga, confirmed that the compensation recommended in favour of the Applicant had not been paid.
The Respondents however urged the Court to decline the orders sought on grounds that payment is dependent upon budgetary allocations and availability of funds from the National Government.
The Respondents opposed the application through Replying Affidavit sworn on 22nd October 2025 as follows:
THAT I am the 1st Respondent’s Legal Officer, fully conversant with the facts of this case, thus competent to make this Affidavit.
THAT I have read and understood the Notice of Motion Application dated 16th May, 2025, the Statutory Statement, and the verifying affidavit of Francis Mohamed Mukama sworn on 25th February 2025 and the Annexures thereto and in response wish to state as follows.
THAT the Application is fatally defective and bad in law for want of leave having been filed outside the 21 days leave granted in the orders issued in HCJRMISC/E001/2025 on 26th February, 2025.
THAT the application is premature and bad in law to the extent that it seeks to compel the 1st Respondent to do that which is not within the 1st Respondent’s mandate.
THAT the 1st Respondent is established under Section 6 of the Wildlife Conservation and Management Act, 2013 and its functions provided for under section 7 of the Act.
THAT it is not the duty of the 1st Respondent under section 7 of the Wildlife Conservation and Management Act, 2013 and it is not within the Respondent’s statutory mandate to compensate the ex parte Applicant.
THAT the 2nd Respondent, the County Wildlife Conservation Committee of Migori as established under section 18 of the Wildlife Conservation and Management Act, 2013 (WCMA) is mandated to review and recommend payment of compensation on claims resulting from loss or damage caused by wildlife under sections 19(1) and 25(2) of the WCMA.
THAT the 1st Respondent is only the secretary to the County Wildlife Conservation Committee established under Section 18 of the Wildlife Conservation and Management Act, 2013.
THAT the Migori County Wildlife Conservation Committee considered the Applicant’s claim for compensation and recommended the same for compensation to the Cabinet Secretary, Ministry of Tourism and Wildlife in accordance with section 25(2) of the WCMA.
THAT the claim is thus pending before the Cabinet Secretary.
THAT the 1st Respondent has clearly discharged its mandate as Secretary to the 2nd Respondent, reviewed and made recommendations on the claim and forwarded the same to the Cabinet Secretary.
THAT under section 25(3) of the Wildlife Conservation and Management Act, the Cabinet Secretary is mandated to consider the 2nd Respondent’s recommendations and where appropriate pay compensation.
THAT the 1st and 2nd Respondents have considered the ex parte Applicant’s claim and made recommendations, thus the prayer for this has been spent.
THAT as regards release of any compensation to the ex parte Applicant’s advocates as sought, I reiterate that the claim is pending consideration and payment where appropriate, by the Cabinet Secretary who is so mandated under section 25(3) of the Wildlife Conservation and Management Act.
THAT from the foregoing, it is clear that the 1st Respondent duly performed their statutory duty under the Wildlife Conservation and Management Act and the Applicant’s allegations remain spurious and the suit herein is unmerited, an abuse of the court process and the reliefs sought are unwarranted.
THAT the Application is not merited as against the 1st Respondent and should be dismissed with costs.
THAT what is deponed to herein is true to the best of my knowledge, information and belief save where otherwise stated sources whereof have been disclosed.
Applicant’s Submissions are dated 15TH April 2026 and are to the effect that:-
The Ex Parte Applicant through his Advocates filed an Application dated 16th May 2025 having been granted leave to do so by this Court. The Application seeks for an order of mandamus to compel the Respondents and especially the 1st Respondent to release the sum of Kshs. 5,000,000/ = to the Ex Parte Applicant's Advocates.
Background
The background to this Application is that the Ex Parte Applicant is a next of kin and the legal representative of the Estate of ERICK OOKO OKUNYA (hereinafter referred to as the deceased). On 16.4.2019, the deceased was viciously attacked and fatally injured by a Hippopotamus as a result of the 1st Respondent's negligence and/or breach of Statutory duty as governed by the provisions of the Wildlife Conservation and Management Act, No. 47 of 2013 (hereinafter referred to as the Act).
The Ex Parte Applicant together with the Family reported the incident at Magunga Police Station after which the 1st Respondent's Officers came and took the details and promised to compensate them for the loss of their kin.
The 2nd Respondent convened a meeting on 6.12.2020 as regards the claim for compensation. The Committee reviewed all the lodged claims and maked appropriate recommendations to the Ministerial Wildlife Compensation Committee (MWCC), the 3rd Respondent herein, that then validates and approves payment of the awards by the aforesaid Committee. The 3rd Respondent had their meeting on 1.2.2022 and approved the claim for compensation for an amount of Kshs. 5,000,000/=. After several follow ups with the 1st Respondent, the Ex parte Applicant was later on provided with a Claimant's Bank Account details form, which he filled.
In spite of the foregoing course of events, the Ex parte Applicant was yet to receive the compensation on behalf of the deceased husband and son respectively. That the 1st Exparte Applicant had on various occasions made a follow up on the compensation but the 1st Respondent had not been forthcoming with feedback and had been taking them round in circles.
That it has been over Seven (7) years and the Respondents are yet to make good their promise for compensation even after the requisite meetings and the approval of the claim by the relevant committees. The Respondents continue to delay the compensation without any plausible explanations hence the present application for mandamus to compel them to do that which they are mandated to.
The Ex parte Applicant is apprehensive that unless this court intervenes and compels the Respondents to make good their promise for compensation and or act on their decision for the same, the Respondents will continue to ignore their demands for compensation and thus corrode and erode the confidence of the Ex Parte Applicant and the general public in the efficiency of the administrative process in Kenya.
The Applicant’s counsel identified issues for determination as:-
a) Whether the 1st Respondent is statutorily bound to manage national parks and reserves.
b) Whether the 1st Respondent is mandated to compensate the Ex Parte Applicant.
c) Whether the Ex Parte Applicant is entitled to the orders for mandamus.
On the first issue, the court was invited to look at the statute that establishes the 1st Respondent herein and the functions spelt out therein. They relied on Sections 6 and 7 of the Wildlife Conservation and Management Act, 2013 (the Act) respectively which establishes the 1st Respondent to perform the following functions, inter alia :"7. The functions of the Service shall be to —
(a) conserve and manage national parks, wildlife conservation areas, and sanctuaries under its jurisdiction;
(b) provide security for wildlife and visitors in national parks, wildlife conservation areas and sanctuaries;
The Applicant submitted that the legal capacity and the mandate of the 1st Respondent with regards to the case at hand is clear from the above provisions. Amongst them incudes the management of the National Parks, Wildlife Conservation areas and sanctuaries under its jurisdiction. This would imply that the 1 st Respondent has a statutory mandate to control wildlife.
On whether the 1st Respondent is mandated to compensate the Ex Parte Applicant, it was submitted that the procedure for compensation is outlined under Section 25 of the Act which provides as follows:-
"1)Where any person suffers any bodily injury or is Idlled by any wildlife listed under the Third Schedule, the person injured, or in the case of a deceased person, the personal representatives 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. ln the case of death, five million shillings;
b. ln the case of injury occasioning permanent disability, three million shillings;
c. ln the case of any other injury, a maximum of two million shillings, depending on the extent of the injury."
The Applicant cited the holding of the Court of Appeal which stated that the duty to manage the Nadonal Parks and reserves comes with the attendant responsibility to shoulder claims arising out of loss, injury or damage caused to property and human life by wildlife. The Court of Appeal in Kenya Wildlife Service vs Joseph Musyoki Kalonzo [2017] eKLR stipulated as follows on this issue:-
"The appellant admits the duty to manage and conserve wildlife. That duty comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty. The law on that point as succinctly pronounced in Joseph Boru Ngera & Another vs Kenya
Wildlife Service vs Rift Valley agricultural Contractors Limited [2014] eKLR among others is still good law on this point. The cabinet secretary referred to in the Act pays money on behalf of the appellant. Neither the court nor the parties should concern themselves with the internal arrangements of the appellant as to whether it is the CEO of the appellant or the Cabinet Secretary who should disburse the money."
The holding of the Supreme Court was also relied upon where in Kenya Wildlife Service —vs- Rift Valley Agricultural Contractors Limited, Supreme Court Petition No 11 of 2015 (2018) eKLR stated as follows at paragraph 66:-
'A global comparison of laws and jurisprudence relating to animal and wildlife management normally provide that an entity charged with such a management task also collects the revenues generated from activities relating to the same. The rationale being that such revenue supports the costs of management and any related outcomes, including compensation for damage made by animals and wildlife...The Wildlife Act gives responsibility to Kenya Wildlife Service as the park revenue collector to compensate for damage occasioned by wild animals.'
In view of the foregoing, it was submitted that it was evident that the duty to pay compensation has been positively determined by the Court of Appeal and the Supreme Court. It was therefore submitted that the 1st Respondent was liable to compensate the ex parte applicant, the applicant's claim having been approved following the laid down procedures under Section 25 of the Wildlife Conservation and Management Act as stated above. The 1st Respondent therefore owes the applicant the amount of KShs. 5,000,000/ = as compensation for the fatal injury of her kin.
On whether the Ex Parte Applicant is entitled to the order of mandamus it was submitted that the 1st Respondent had failed to satisfy the said recommendation despite several follow ups by the ex parte Applicants prompting them to file the present application for mandamus.
The Court in Kenya Wildlife Service vs Awuor (Civil Appeal E013 of 2022) [20231 KEHC 3721 (KLR) (26 April 2023) (Judgment) and Kenya Wildlife Service vs Abraham M'ngai M'itumitu [2021] eKLR held as follows:-
"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 pursued 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 Applicant’s Counsel also relied on the recent cases of
a) Republic v Kenya Wildlife Service & 2 others; Muhia (Exparte
Applicant) (Judicial Review Application E003 of 2024) [20241
8086 (KLR);
b) JOYCE ATIENO OGUNA (Suing as the legal representative and administrator of the Estate of PETER OUMA OGOLA-DCD) VS KENYA WILDLIFE SERVICE AND COUNTY WILDLIFE COMPENSATION COMMITTE, HOMABAY AND 1 Others -Siaya
HCJRMISC/E002/2024;
c) DONGOL ELEMAN KOKOI VS WILDLIFE SERVICE
AND COUNTY WILDLIFE COMPENSATION COMMITTE,
TURKANA AND 1 Others -Lodwar HCJR No. E003 of 2024) and
d) SALONIK MURUNYA PARMUAI VS KENYA WILDLIFE SERVICE AND COUNTY WILDLIFE COMPENSATION COMMITTE, HOMABAY AND 1 Others- Narok HCJR/E002/2024 where various Learned Judges of the High Court faced with a similar application as the present one in Court and relying on the above authorities held that the Ex Parte Applicant was within her right to file the Judicial Review Application. The Court went ahead and granted the Application for an order of mandamus compelling the 1st Respondent therein (Kenya Wildlife Service) to pay the amount of Kshs. 5,000,000/ = as compensation for the death of the deceased. In light of the foregoing cases, it is our submission that the ex parte applicant is within his right to file the instant judicial review to enforce the compensation.
In conclusion, it was submitted that the Ex parte Applicant had shown that the Wildlife Conservation and Management Committee recommended for compensation in the sum of Kshs. 5,000,000/ = for the death of their kin as provided for under Section 25 of the Act. Having established that the 1st Respondent's duty to manage and conserve wildlife comes with the attendant responsibility to shoulder any claims of loss or damage caused by the breach of that duty, it is the ex parte Applicant's case that the 1st Respondent had failed to satisfy the recommendation for compensation and the Ex Parte applicant is entitled to the order of mandamus as sought in the application before this Court. Costs were also prayed for.
The Applicant therefore urges the Court to issue an order of mandamus compelling payment.
The Respondents submitted that although compensation was recommended, payment is subject to budgetary processes and availability of funds.
It is their position that the Court should take into account practical constraints affecting implementation of the recommendation.
Nevertheless, the Respondents do not dispute the occurrence of the crocodile attack, the death of the deceased, or the recommendation for compensation.
ANALYSIS AND DETERMINATION
Having considered the pleadings, affidavits and submissions of the parties, the following issues arise for determination:
i. Whether the Applicant has established a legal right to the compensation recommended by the competent statutory body.
ii. Whether the Respondents have failed to perform a statutory duty.
iii. Whether an order of mandamus should issue.
iv. Who bears the costs.
Judicial review is concerned with the legality of decision-making processes and the performance of public duties by public bodies. The remedy of mandamus issues to compel the performance of a public duty imposed by statute where a public authority has failed, neglected or refused to perform that duty. The material before the Court demonstrates that Erick Okunya died following a crocodile attack. A claim for compensation was thereafter lodged pursuant to the Wildlife Conservation and Management Act, 2013. It is not disputed that the competent statutory committee considered the claim and recommended compensation in the sum of Kshs. 5,000,000/=. Equally, it is not disputed that the recommended compensation has not been paid. Indeed, learned counsel appearing for the 1st Respondent candidly informed the Court that payment remains outstanding.
The question that therefore falls for determination is whether the Respondents can lawfully fail to pay compensation that has already been recommended and approved under the statutory framework.
In this Court’s view, once the statutory process culminated in the recommendation and approval of compensation, the Respondents became obligated to take the necessary administrative and financial steps towards settlement of the claim.
The Court is not being called upon to assess liability afresh or determine the amount payable. Those matters were conclusively addressed through the statutory mechanism established under the Wildlife Conservation and Management Act. What remains is implementation of the recommendation. The explanation that payment is contingent upon budgetary allocation cannot, without more, justify indefinite non-payment of a lawful claim. Public authorities cannot rely on administrative or budgetary challenges to defeat rights that have already crystallized under the law. To permit such a position would render the compensation framework under the Act illusory and deny successful claimants the benefit of decisions lawfully made in their favour. Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The prolonged failure to settle compensation that has already been approved is inconsistent with those constitutional imperatives. This Court is therefore satisfied that the Applicant has established a clear legal right arising from the recommendation of compensation and that the Respondents have failed to perform a statutory duty imposed upon them by law. This is a proper case for the grant of an order of mandamus.
Accordingly, the Notice of Motion is merited and is hereby allowed.
The Court makes the following orders:
a. An Order of Mandamus is hereby issued compelling the Respondents jointly and severally to process and pay to the Applicant the sum of Kenya Shillings Five Million (Kshs. 5,000,000/=) being compensation awarded in respect of the death of Erick Okunya following a crocodile attack.
b. The said payment shall be effected within ninety (90) days from the date of this judgment.
c. In default of compliance within the stipulated period, the Applicant shall be at liberty to pursue all lawful enforcement mechanisms available under the law.
d. The Applicant shall have the costs of these proceedings together with interest thereon at court rates.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 25TH DAY OFJUNE, 2026.