Lepaati ((Suing as the next of kin of Saidinga Lepaati (Deceased))) v Kenya Wildlife Service & another [2022] KENET 782 (KLR)

Lepaati ((Suing as the next of kin of Saidinga Lepaati (Deceased))) v Kenya Wildlife Service & another (Tribunal Appeal 12 of 2022) [2022] KENET 782 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KENET 782 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 12 of 2022

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

October 19, 2022

RULING ON 1 ST RESPONDENT’S PRELIMINARY OBJECTION RAISED VIDE THE REPLY TO GROUNDS OF APPEAL DATED 31 ST MARCH 2022 AND THE 1 ST AND 2 ND RESPONDENTS PRELIMINARY OBJECTION RAISED VIDE THE REPLY TO GROUNDS OF APPEAL DATED 6 TH APRIL 2022

Between

Ntalia Saidinga Lepaati

Appellant

(Suing as the next of kin of Saidinga Lepaati (Deceased))

and

Kenya Wildlife Service

1st Respondent

Ministerial Wildlife Conservation and Compensation Committee

2nd Respondent

Ruling

1. The appellant instituted this appeal vide a notice of appeal dated March 18, 2022 and filed on even date under rule 4 (1) of the National Environment Tribunal Procedure Rules. The appeal is against the decision of the 2nd respondent, Ministerial Wildlife Conservation and Compensation Committee, to reject the appellant’s claim for compensation because of the following reasons:i.The Compensation form was not duly filled; andii.There are recommendations given by the Community Wildlife Conservation Committee on the compensation claim form.

2. The appeal emanates from the death of one Saidinga Lepaati, who allegedly succumbed to a hyena attack. The appellant is seeking to be compensated for the death of Saidinga Lepaati.

B. Respondent’s reply 3. On March 31, 2022 Owendi Nicole, the legal officer for the 1st respondent entered appearance for the 1st respondent and filed reply to grounds of appeal dated March 31, 2022 while on April 6, 2022 Oscar Eredi the deputy chief state counsel entered appearance for the 1st and 2nd respondents and filed reply to grounds of appeal dated April 6, 2022.

4. It is unclear and confusing why there are two different advocates who are acting for the same party, the 1st respondent, as they not only entered appearance but also filed different replies to the same notice of appeal instituted by the appellant. Nonetheless, we shall highlight the contents of the two replies.

5. The 1st respondent, through its legal officer Owendi Nicole, responded to the appeal vide a reply to grounds of appeal dated March 31, 2022 where at paragraph 3, it raised a preliminary objection to the appeal dated March 18, 2022 for the reason that: -The appellant herein has not demonstrated, as provided for by the Law of Succession Act, Cap 160 that they are the rightful administrator to the estate of the deceased and therefore lacks locus standi.

6. Vide the reply to grounds of appeal dated April 6, 2022, at paragraph 3, the 1st and 2nd respondents raised a preliminary objection for consideration by this honorable tribunal on the ground that this appeal is statute barred as it contravenes the provisions of section 25(6) of the Wildlife Conservation and Management Act which provides that 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.

C. Submissions 7. The appellant filed written submissions dated July 18, 2022 in respect of the 1st respondent’s preliminary objection.

8. The 1st respondent filed written submissions dated June 13, 2022 on the preliminary objection raised in the reply to grounds of appeal. On whether the appellant has the requisite locus standi to bring forth this appeal it cites section 3 (1) of the Law of Succession Act (Cap 160) on the definition of a personal representative.

9. It further cites the Court of Appeal’s decision in the case of Trouistik Union International & Another v Jane Mbeyu & Another (2008) IKLR (G&F)730, section 82 (a) of the Law of Succession Act (Cap 160), In the Matter of the Estate of Robert Kinyua Mwangi – Succession Cause No 292 of 2015andJulian Adoyo Ongunya v Francis Kiberenge Abano CA No 119 of 2015 in support of its case.

10. The 1st respondent submits that the letter produced by the appellant as part of supporting documents to this appeal, a letter from the office of the assistant chief at Lonyoripechali sub-location stating that she was married to the deceased, does not equate to grant ad litem captured in the Law of Succession Act and neither can they purpose interchangeably.

11. It further submits that this appeal before the honourable tribunal is incompetent for lack of taking out grant ad litem by the appellant.

12. The 1st respondent submits that the appellant herein lacks the legal standing to institute this appeal and thus should not be allowed by this honourable tribunal.

13. It prays that this honourable tribunal dismisses this appeal as the document produced by the appellant in support of their claim as the next of kin of the deceased do not confer upon them the locus standi to sustain this appeal.

D. Issues for determination 14. Having considered the 1st respondent’s preliminary objection raised vide the reply to grounds of appeal dated March 31, 2022, the 1st and 2nd respondents preliminary objection raised vide the reply to grounds of appeal dated April 6, 2022, the appellant’s submissions in respect of the 1st respondent’s preliminary objection and the 1st respondent’s written submissions in respect of its preliminary objection, the tribunal has identified the following issues as arising from the preliminary objection:a.Whether the appeal is time barred; andb.Whether the appellant has the locus standi to bring this appeal.

E. Whether the appeal is time barred 15. Section 25(6) of the Wildlife Conservation and Management Act (No 47 of 2013) provides: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 (emphasis ours).

16. The appellant lodged their application to the County Wildlife Compensation Committee seeking to be compensated for the death of the late Saidinga Lepaati. The Ministerial Wildlife Compensation Committee replied by way of a letter dated April 15, 2021 rejecting the claim on grounds that the compensation claim form was not duly filled and that ‘there are recommendations given by County Wildlife Conservation Committee on the compensation claim form’. The letter was forwarded to the senior warden, Marsabit National Park/ Reserve on June 23, 2021 as evidenced by the stamp on the copy of the letter.

17. The respondents have not furnished the tribunal with any evidence to indicate the date when the appellant received the letter dated April 15, 2021 from the Ministerial Wildlife Compensation Committee.

18. In the celebrated case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Limited, the principles of preliminary objections were set out. The court stated as follows: -'So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.'

19. A preliminary objection should consist of points of law that do not need to be proved by way of evidence. The tribunal would have to receive evidence from the parties in order to determine when the appellant received the letter dated April 15, 2021. Therefore, the tribunal cannot make a finding at this point whether or not the appeal is time barred.

F. Whether the appellant has locus standi to bring this appeal 20. The 1st respondent contends that the letter produced by the appellant as part of supporting documents to this appeal, a letter from the office of the assistant chief at Lonyoripechali sub-location stating that she was married to the deceased, does not equate to grant ad litem captured in the Law of Succession Act.

21. We reiterate the point that a preliminary objection must be comprised of points of law that need no argument or production of evidence. While the appellant has not attached a grant of letters of administration or a grant of letter of administration ad litem, the appellant is still at liberty to file further documents in support of her appeal before the appeal is set down for hearing. In any case, the appellant has not made an admission that she has not taken out the relevant grant to enable her to bring these proceedings. Furthermore, the appellant’s claim before the Ministerial Wildlife Conservation and Compensation Committee was not rejected on account of lack of a relevant grant of letters of administration (or ad litem). Instead, other reasons were proffered by the committee.

22. We are of the view that this too is a point that can only be determined upon receiving evidence from both parties and considering the appeal on merit.

G. Orders 23. For the above reasons, the tribunal makes the following orders:a.The 1st respondent’s preliminary objection raised vide the reply to grounds of appeal dated March 31, 2022 and the 1st and 2nd respondents preliminary objection raised vide the reply to grounds of appeal dated April 6, 2022 are hereby dismissed;b.The appeal shall proceed to be heard on merit; andc.Each party to bear their own costs.The parties’ attention is drawn to the provisions of section 130 of the EMCA.

DATED AT NAIROBI THIS 19TH DAY of OCTOBER 2022. MOHAMMED S BALALA…………………………CHAIRPERSONCHRISTINE KIPSANG………………………………………MEMBERBAHATI MWAMUYE………………………………………………MEMBERWAITHAKA NGARUIYA………………………………………MEMBERKARIUKI MUIGUA………………………………………………MEMBER