Beatrice Mwikali Musyoka v Kenya Wildlife Service [2021] KENET 197 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL ENVIRONMENT TRIBUNAL

NET APPEAL NO. 03 OF 2021

BEATRICE MWIKALI MUSYOKA ......................................................... APPELLANT

-VERSUS-

KENYA WILDLIFE SERVICE................................................................RESPONDENT

RULING ON PRELIMINARY OBJECTION

(Ruling on the Respondent’s Notice of Preliminary Objection dated 28th April 2021)

1. Before the Tribunal is the Respondent’s Notice of Preliminary Objection dated 28th April 2021. The Notice of Preliminary Objection filed by the Respondent premises that the Tribunal lacks jurisdiction to hear and determine the Appellant’s appeal for the reason that the appeal is allegedly time-barred by dint of Section 25(6) of the Wildlife Conservation and Management Act, 2013.

2. The Parties filed and exchanged written submissions with respect to the Notice of Preliminary Objection. The Appellant opposed the Notice of Preliminary Objection through the Appellant’s Written Submissions dated 21st May 2021; while the Respondent supported its Notice of Preliminary Objection through the Respondent’s Written Submissions dated 25th May 2021.

3. Section 25(6) of the Wildlife Conservation and Management Act, 2013 reads as follows:

“A person who is dissatisfied with the award of compensation by either the County Wildlife Conservation and Compensation Committee or the Service may within thirty days after being notified of the decision and award, file an appeal to the National Environment Tribunal and on a second appeal to the Environment and Land Court. “

4. The basic facts and dates in the matter are not in dispute between the Parties. It is agreed that the present appeal arises from the decision of the County Wildlife Conservation and Compensation Committee with respect to the demise of the Appellant’s daughter, the Late Lenah Kyambi Mwangangi. The Appellant sought compensation from the County Wildlife Conservation and Compensation Committee responsible for Kitui County. Through a letter dated 7th October 2019 signed by the Secretary of the Ministerial Wildlife Conservation Compensation Committee (MWCCC), the Appellant was informed of the Committee’s decision not to compensate her.

5.  Aggrieved by the decision of the Committee as communicated through the MWCCC’s letter dated 7th October 2019, the Appellant initially moved to this Tribunal through NET 1 of 2020, which was filed on 8th January 2020. The Respondent filed its Reply on 4th August 2020 raising a preliminary issue of law that that appeal was incompetent because the Appellant lacked the requisite locus to bring any legal proceedings on behalf of the estate of the deceased since she did not have letters of grant of administration of the deceased’s estate as required under Section 62of the Wildlife (Conservation and Management) Act(now repealed).

6.  Through our Ruling dated 8th December 2020 in NET 1 of 2020, we allowed the preliminary objection raised by the Respondent. Paragraphs 12 and 13 of that Ruling in NET 1 of 2020 read as follows:

“12. As jurisdiction has been held to be everything and  court orders that are not clothed with jurisdiction are inconsequential, it follows that the appeal herein is of no consequence howsoever and the suit before the Committee ought to have been struck out pending the determination of the personal representatives of the deceased through the filing of a succession cause.

13. Accordingly, this preliminary objection succeeds to the extent that the Appellant has no locus and the Tribunal is thus not clothed with the jurisdiction to hear and determine the same. We will not comment on the merits of the appeal or the claim itself. The personal representative or successor identified in a succession cause may still pursue relief for compensation at an appropriate time and forum.”

7. The Appellant obtained Limited Grant of Letters of Administration Ad Litem and filed the present appeal on 3rd March 2021. As stated earlier, the Respondent has once again raised a preliminary issue of law, this time on the thirty-day requirement of Section 25(6) of the Wildlife Conservation and Management Act, 2013.

8. The Appellant, at Paragraph 11 of the Appellant’s Written Submissions dated 21st May 2021, took the position that her Appeal is indeed prima-facie time-barred. The Appellant stated:

“Additionally the Appellant also acknowledges that by dint of Section 25(6) of the Wildlife Conservation and Management Act of 2013, they were time barred to act within thirty days to submit an appeal to this honourable tribunal.”

9. The Appellant proceeds in the subsequent paragraphs of the Appellant’s Written Submissions to argue that due to the delays occasioned by the ongoing COVID-19 Pandemic, the normally quick process of seeking and receiving Limited Grant of Letters of Administration Ad Litem took longer than normal. The Appellant stated that she received the Orders on 22nd January 2021, and thereafter filed the Appeal on 3rd March 2021.

10. The Appellant sums up her position on the Notice of Preliminary Objection by contending that the issue of her Appeal being time-barred is one that can be construed as a procedural technicality with respect to which this Tribunal should not place undue regard, in line with Article 159(2)(d) of the Constitution. The Appellant contends that the time-barred issue is one in which this Tribunal can either circumvent or override in furtherance of what the Appellant termed the overriding objective of dispensing substantive justice on its merits and not on matters of procedural technicality.

11.  On its part, the Respondent argued that as stated in the famous case of The Owners of Motor Vessel “Lillian S”-v- Caltex Oil Kenya Limited (1989) 1 KLR 1without jurisdiction this Tribunal cannot take any further steps in the Appeal. The Respondent contended that regardless of any and all other circumstances the Appellant should have moved to the Tribunal within thirty days of being notified of the decision of the Committee, and any appeal that was filed outside of that timeframe is one with respect to which this Tribunal has no jurisdiction to hear and determine.

Determination

12.  Having carefully perused the pleadings in this Appeal and have considered the written submissions filed by each Party, we note that Section 25(6) of the Wildlife Conservation and Management Act of 2013 is drafted in clear terms. Nowhere in either that Act or in any other written law is this Tribunal empowered to extend the time within which an appeal under the Section 25 of the Wildlife Conservation and Management Act of 2013 should be filed. The authorities relied upon by the Appellant, which included the seminal decision of the Court of Appeal in Abdirahman Abdi a.k.a. Abdirahman Muhamed Abdi -v- Safi Petroleum Products Limited & 6 Others (COA Civil Appeal No. 173 of 2010 – Omolo, Bosire, and Nyamu JJ.A) , dealt with situations involving the superior courts and express provisions of law allowing for extension of time such as Sections 3A and 3B of the Appellate Jurisdiction Act. No similar provisions of law exist with regard to this Tribunal and to Section 25(6) of the Wildlife Conservation and Management Act of 2013.

13. In the present Appeal, the appeal should have been filed on or before the lapse of thirty days from the date that both parties agree that the Appellant the decision of the Committee, which was 20th December 2019. By filing the present Appeal on 3rd March 2021, the Appellant exceeded the 30-day timeframe by 409 days with respect to the decision dated 7th October 2019 which the Appellant received on 20th December 2019.

14. At Paragraph 6 above, we have quoted verbatim paragraph 13 of our Ruling dated and delivered on 8th December 2020 in Net 1 of 2020. We now, as we did then, state that the Appellant may still pursue relief for compensation at an appropriate time and forum. The time to have moved to this Tribunal with respect to the decision received by the Appellant on 20th December 2019 lapsed on 18th January 2020.

15.  Accordingly, this preliminary objection succeeds to the extent that this Tribunal has no jurisdiction to hear and determine the Appeal as the same is time-barred under Section 25(6) of the Wildlife Conservation and Management Act of 2013. We will not comment on the merits of the appeal or the claim itself.

16. The present Appeal is struck out, with orders no orders as to costs.

DATED AND DELIVERED ONLINE THIS 7TH DAY OF JULY, 2021.

Mohammed S. Balala ……………………………………………………………………..…………Chairperson

Christine Mwikali Kipsang’ ……………………………………………………………..……..Vice-Chairperson

Bahati Mwamuye ….………………………………………………………………..…………………… Member

Waithaka Ngaruiya …………….……………………………………………………………………...…. Member

Kariuki Muigua ………………………………………………………………….………………………… Member