Hassan v Ministerial Wildlife Conservation Compensation Committee [2022] KENET 732 (KLR)

Hassan v Ministerial Wildlife Conservation Compensation Committee (Tribunal Appeal 41 of 2020) [2022] KENET 732 (KLR) (Civ) (6 October 2022) (Ruling)

Neutral citation: [2022] KENET 732 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 41 of 2020

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Vice Chair, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

October 6, 2022

Between

Hussein Hassan

Appellant

and

Ministerial Wildlife Conservation Compensation Committee

Respondent

Ruling

1. The present Appeal filed on 19th October 2020 seeks for the appeal to be allowed and the judgment of the trial Ministerial Wildlife Conservation Compensation Committee for compensation be set aside and judgment be entered in favour of the Appellant.

2. The Appellant also filed Grounds of Appeal dated 4th February 2021that are listed below:a.Thatthe Learned Trial Tribunal erred in fact and law in deciding in favour of the Respondent when the Respondent had not proved its case on the required standard.b.Thatthe Learned Trial Tribunal erred in fact and law in failing to properly analyze the evidence on record thereby arriving at a wrong and unjust decision.c.That the Learned Trial Tribunal erred in fact and law in failing to appreciate that the incident happened way back in the year 2014 and the specific date of the incident may have been forgotten by the Claimant thus contradiction in the specific dates.d.Thatthe Learned Trial Tribunal failed to consider the education background and the locality where the incident occurred to arrive at the decision.e.That the Learned Trial Tribunal erred in fact and law in failing to consider the evidence of the Claimant/Appellant in arriving at the decision

3. The Appellant filed on 4th February 2021, the following pleadings namely Witness Statement of Hussein Hassan, List of Documents namely Area Chief’s letter, P3 form, Discharge summary, Kenya Wildlife Service (KWS) letter, initial compensation claim, and photo of the injury occasioned.

4. The Respondent filed a Replying Affidavit on 15th February 2021 sworn by Prof.Fred H.K Segor CBS stating the claim was rejected based on inconsistencies in the dates in the documents submitted by the Appellant.

5. The Appellant filed submissions dated 10th March 2021 and the Respondent filed its submissions dated 7th April 2021.

6. The Tribunal has considered the pleadings and written submissions of all the parties herein. The sole issue for determination is whether the Appellant’s merited

7. There is no dispute that the Appellant submitted a claim to the Ministerial Wildlife Conservation Compensation Committee because of a snake bite and the contention seems to be on inconsistencies on the date when he suffered the snake bite. . The Respondent did not disclose any other anomaly in its response to the claim.

8. The Respondent received the Appellant’s claim in year 2014 and for five years there was no one time the committee sought for additional documents or clarifications from the Appellant at all in respect of additional documents. There is no evidence that over the years the Respondent verified the claim from the Police, the hospital or the local chief who is likely to know the Appellant very well. The Respondent did not call the Claimant to testify/verify at all or any witness to verify the evidence.

9. The Respondent communicated its decision in a summary manner through a letter dated 7th October 2019 to the Appellant and it is useful to reproduce it here.KWS/30057th October 2019Hussein Hassan AbubakarBox 816,GARISSATel 0727935320Thro’The WardenGarissa CountyDear M/s HusseinInjury Compensation ClaimThe above subject refers.The Ministerial Wildlife Conservation Compensation Committee (MWCCC) concluded deliberations on the human wildlife conflict compensation claims in respect of human injury occasioned by wildlife from various Counties, in October,2019. The purpose of this letter is to inform you that the claim was rejected due to inconsistencies in the date of the incident on documentation.Regards,SignedSecretary MWCCCFor: Director GeneralCc Permanent SecretaryState Department of WildlifeMinistry of Tourism and WildlifeCounty CommissionerGarissa County.

10. The Tribunal is alive to the statutory provisions of the Act particularly Sections 18,19 and 25 of the Wildlife Conservation and Management Act 2013 that allow a victim to lodge the claim and once a determination is done then an appeal can be lodged in this Tribunal as a first appeal and a second appeal to the Environment and Land Court.

11. This Tribunal finds that the Appellant submitted documents on 29th September 2014 which clearly show that he was bitten by a snake at the right ankle. The Chief’s letters written on 23rd August 2014 and 25th August 2014 state the snake bite occurred on 20th August 2014 at night. The discharge summary signed by the medical officer shows that the Appellant was admitted on 21st August 2014 and among the medication given was the Iv infusion snake venous anti serum 10 mls in 100 mls of 5% dextrose and finally the P3 form which was filled at Balambala Sub -District Hospital on 25th August 2014 records the snake bite occurred on 20th August 2014 at 1930 hours, that the snake fangs are visible and it termed the injury as harm. The Tribunal takes judicial notice that P3 forms are ordinarily filled after treatment is received by a patient or victim and not before the treatment. There is consistency in the dates and chronology of events that occurred after the snake bite.

12. The Respondent submits that there was amendment of the Third Schedule to the Wildlife and Management Act,2013 to remove poisonous snakes from the list of wildlife species in respect of which compensation may be paid. However the Tribunal notes that the snake bite occurred on 20th August 2014 and not when the committee made its decision on 7th October 2019.

13. Section 25(3) of the Wildlife Conservation and Management Act 2013 provides that the Cabinet Secretary shall consider the recommendations made under subsection (2) and where appropriate pay compensation to the Claimant as follows.a.in 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 the injury.

14. The Appellant suffered a snake bite which immobilized him, caused his ankle to swell, caused him pain, second stage oedema raised local temperature that caused the site to be tender on palpitation that necessitated hospitalization. The Appellant was later discharged on medication.

15. The Tribunal finds that the Appellant’s appeal is merited. There was no inconsistency in respect of the date when the Appellant suffered the snake bite. We find that a sum of Kenya shillings Three Hundred and Fifty thousand is adequate recompense for the injury sustained.

Ordersa.The Appeal is hereby allowed.b.The Appellant is hereby awarded Kes 350,000/- as compensation for the injury he suffered because of the snake bite.c.The costs of this appeal are awarded to the Appellant.This Tribunal draws attention of the parties to Section 25 (6) of the Wildlife Conservation and Management Act.

DATED AND DELIVERD AT NAIROBI THIS 6THDAY OF OCTOBER 2022MOHAMMED S. BALALA …………………………………… CHAIRPERSONCHRISTINE MWIKALI KIPSANG’ …………………. VICE-CHAIRPERSONBAHATI MWAMUYE ….…………………………………...….……… MEMBERWAITHAKA NGARUIYA …………….…………………...…….……. MEMBERKARIUKI MUIGUA ………………………………………….....…...… MEMBER