SOK (Suing as the father and next friend of LS – a minor) v Kenya Wildlife Service [2022] KENET 703 (KLR)

SOK (Suing as the father and next friend of LS – a minor) v Kenya Wildlife Service (Tribunal Appeal 56 of 2020) [2022] KENET 703 (KLR) (Civ) (28 September 2022) (Ruling)

Neutral citation: [2022] KENET 703 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 56 of 2020

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

September 28, 2022

Between

SOK

Appellant

Suing as the father and next friend of LS – a minor

and

Kenya Wildlife Service

Respondent

Ruling

Background 1. The appellant instituted this application vide a certificate of urgency, a notice of motion and the supporting affidavit of Saibulu Ole Kitesho dated December 18, 2020 and filed before the tribunal on even date. The application is brought under articles 48 and 159 (2) (d) of the Constitution of Kenya 2010, rule 7 of the National Environmental Tribunal Procedure Rules, 2003, sections 1, 1A, 3, 3A of the Civil Procedure Act and sections 62 (1) (a) & (b) (2), (3) & (4) of the Wildlife Conservation and Management Act, 2019 cap 376.

2. The appellant vide the notice of motion dated December 18, 2020 sought the following orders, inter alia:a.That leave be granted to the applicant/intended appellant to file a notice of appeal out of time and/or time be extended for the applicant/intended appellant to lodge a notice of appeal for compensation arising from personal injury; andb.That cost of this application be in the cause.

3. The notice of motion dated December 18, 2020 was based on the following grounds:a.The applicant/intended appellant’s son who is a minor hereof was attacked by a herd of lions on the February 4, 2017 while grazing family livestock at Olkeri, Murantan, Torosei within the county of Kajiado;b.The incident was reported at Magadi police station being occurrence book number 12/4/2/2017;c.Consequently, the minor sustained severe bodily injuries which necessitated hospitalization at Magadi hospital, Nairobi hospital and Kajiado district hospital;d.That the injuries resulted in permanent disability of the applicant/intended appellant’s son;e.Immediately thereafter the applicant / intended appellant lodged a claim for compensation, with the Ministerial Wildlife Conservation Committee (MWCCC) only for the claim to be rejected because the medical examination form (P3) was not duly filled;f.They embarked on assisting the applicant/ intended appellant comply accordingly by obtaining the duly filled up medical examination form (P3) by a qualified, competent and authorized medical practitioner who attended to the applicant/intended appellant’s son;g.The applicant’s/intended appellant’s appeal is deserving as it is not in dispute that the attack occurred and thus the dismissal of the claim amounts to travesty of justice;h.That since the applicant/intended appellant has obtained duly filled medical examination form (P3), it is in the best interest of justice, conscience and equity that this honourable court grants leave to enable the applicant/intended appellant lodge the Appeal since he has assembled the required documentation.

4. On February 10, 2021, the respondent filed its grounds of opposition and list of authorities dated February 9, 2021 on the following grounds:a.The application is brought with unreasonable delay that has not been explained;b.The application is couched in a tenor unpalatable to the rules of evidence contained in the Evidence Act;c.The application is incompetent and does not lie;d.The application is brought in flagrant disregard of the provisions of the Civil Procedure Act at section 78;e.The application is incurably defective;f.The application is misconceived as the sections of the Civil Procedure Act and the Wildlife Conservation and Management Act under which it is purportedly brought do not cover it;g.The application is not supported by proper affidavits;h.The application is a clear departure from the object to serve substantive justice; andi.The application is an abuse of the process of the tribunal.

Submissions by the Parties Appellant’s submissions 5. The appellant filed written submissions in support of his application dated December 18, 2020 on April 7, 2021. On whether the appellant should be granted leave to file appeal out of time, the appellant submits that he has demonstrated a good cause which warrants the honourable tribunal to grant leave to the appellant to file the appeal out of time because based on the facts adduced in his submissions, it will be clear that the appellant found himself in this predicament arising from several bureaucracies, red-tapism and formalities by the respondent and other public offices beyond his control.

6. The appellant cites the case ofFeroz Begum Qureshi and Another vs Maganbhai Patel and Others (1964) EA 633 where the court held that an appellant seeking leave to appeal out of time must show that he has a good cause for doing so.

7. The appellant submits that vide a letter dated October 7, 2019 the respondent declined his claim for not being duly filed and accordingly he embarked on the process of obtaining a P3 form to enable him lodge an appeal. He submits that he was unable to obtain the same because the P3 form never got to be filled by county medical officer at the county government of kajiado referral hospital among the numerous medical institutions he underwent and indeed this was not his making.

8. The appellant further submits that they requested for the P3 form to be filled up as annexed vide their letter dated September 10, 2020 and eventually the P3 form was issued by Kajiado county referral hospital medical superintendent on the September 15, 2020 thus leading to the filing of the present application. He cites the case of First American Bank of Kenya Ltd vs Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO 2255 OF 2000 [2002] 1 EA 65 in support of his case.

9. It is the submission of the appellant that in response to the grounds of opposition dated February 9, 2021 and filed on February 10, 2021 he urges the honourable tribunal to dismiss the same as the respondent has neither adduced evidence nor offered an explanation to show why the application should be dismissed. He urges the court to look at section 107 of the Evidence Act.

10. On who should bear the costs of the application, the appellant submits that costs follow the event and that the application is meritorious and should be allowed with costs.

11. In conclusion, the appellant prays that the orders sought for in the application dated December 18, 2020 should be granted accordingly.

Respondent’s submissions 12. The respondent filed its written submissions dated April 22, 2021 on April 23, 2021. On whether the application is timeous it submits that the incident complained of occurred on February 4th 2017 and the appellant’s claim was rejected by the compensation committee for being incomplete on October 7th 2019 because it was not supported by a P3 Form. The P3 form was eventually signed on September 2020.

13. The respondent submits that the applicant has not addressed any of the gaps in action on the claim and that the hiatus in the applicant’s actions shows a disregard of the statutory timelines in sections 25(6) of the Wildlife Conservation and Management Act. It further submits that the timeline is mandatory and the tribunal has no jurisdiction to interfere with it even under rule 7 of the National Environment Procedure Rules.

14. The respondent places reliance on section 78 of the Civil Procedure Act and submits that the gravamen of the section is that in an appeal, the appellate court/tribunal must deal with the appeal subject to such conditions and limitations as may be prescribed.

15. It is the submission of the respondent that in the current case there is a timeline explicitly stated and the applicant is in breach. It further submits that the evidence sought to be adduced is inadmissible owing to the limitation period.

16. On production of new evidence, the respondent submits that the attempt to adduce the P3 form to cover a 4 year delay in adducing it is unhinged. It cites the cases of Nayan Mansukhlal Salva v Hanikssa Nayan Salva[2019] eKLR, Radheshyam Transport Limited & another v Corporate Business Centre Limited [2020] eKLR and Mount Elgon Beach Properties Limited v Harrison Shikaru Mwanongo & another [2019] eKLR in support of its case.

17. In conclusion, the respondent submits that the applicant has not shown that he is deserving of the orders sought.

Issues for determinationa.Having considered the appellant’s certificate of urgency, notice of motion and supporting affidavit of Saibulu Ole Kitesho dated December 18, 2020, the respondent’s grounds of opposition and list of authorities dated February 9, 2021, the appellant’s written submissions dated April 7, 2021 and the respondent’s submissions dated April 22, 2021 the tribunal will determine the issue whether the appellant should be granted leave to file his appeal out of time.

Whether the appellant should be granted leave to file his appeal out of time 18. The legal framework on appeals to the National Environment Tribunal from decisions of the county wildlife conservation and compensation committee is set out under section 25 (6) of the Wildlife Conservation and Management Act, No 47 of 2013 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 and on a second appeal to the Environment and Land Court.

19. The above provision clearly indicates that an appeal to the tribunal is supposed to be lodged within thirty (30) days of the award of the compensation that is subject of the appeal.

20. The incident complained of occurred on February 4, 2017. The respondent declined the appellant’s claim on October 7, 2019 because it was not supported by a P3 form. The period of 30 days from the date when the respondent declined the appellant’s claim lapses on November 6, 2019. However, the appellant made his application for extension of time on December 8, 2020 after the P3 form was issued by Kajiado County Referral Hospital on September 15, 2020.

21. The appellant/applicant urged the tribunal to invoke its powers and extend time within which to file an appeal under rule 7 of the National Environmental Tribunal Procedure, Rules 2003. Rule 7 provides as follows:‘The tribunal may for good reason shown, on application, extend the time appointed by these rules (not being the time limited by the act) for doing any act or taking any proceedings, and may do so upon such terms and conditions, if any, as appear to it just and expedient.’(emphasis ours)

22. The above provision does not apply to appeals under section 25 (6) of the Wildlife Conservation and Management Act since the time within which to file such appeals is limited by statute to thirty days. This honorable tribunal is not vested with jurisdiction to enlarge the time within which an appeal should be filed. Therefore, it does not have jurisdiction to entertain the appellant/applicant’s application. Be that as it may, the appellant/applicant may pursue compensation in another forum.

Orders 23. For the above reasons, the tribunal makes the following orders:a.The appellant’s application dated December 18, 2020 is hereby dismissed; andb.Each party to bear their own costs.Parties’ attention is drawn to the provisions of section 130 of the Environment Management and Co-ordination Act.

DATED AT NAIROBI THIS 28th DAY OF September 2022MOHAMMED S BALALA…………………...………………………CHAIRPERSONCHRISTINE KIPSANG………………………….……………………MEMBERBAHATI MWAMUYE…………………………….…………………MEMBERWAITHAKA NGARUIYA…………………….……………………. MEMBERKARIUKI MUIGUA………………………….………………………MEMBER