When tourists go to Kenya to enjoy close encounters with wildlife, they might not be aware that there is a downside – especially for people who live close to wild creatures, both sharing the same land.
A selection of cases decided and reported recently, all in the same week, shows that attacks by lion and hyena, fatal snakebites and zebra destroying precious maize fields, are among the issues that the country’s environment and land tribunal must hear and resolve.
Take the case of a father, suing on behalf of his young son, attacked and left seriously injured by a pride of lion while he was out tending family livestock. The father reported the incident to the police as required and then lodged a claim for compensation with the Ministerial Wildlife Conservation Committee (MWCC). The committee however rejected the claim because the official medical form wasn’t filled in.
The matter eventually resolved into a dispute over whether an appeal against that decision was brought out of time and if so, whether there was any chance of condonation.
Sitting to hear the appeal, the national environment tribunal held that it had no power to extend the deadline for admitting appeals, but said that the father could pursue his claim for compensation in another forum.
Another case involving a child was brought by a father when his five-year-old son died after being bitten by a snake. He sued Kenya Wildlife Service (KWS) but was unsuccessful. Again, a key preliminary issue was the lapse of time and whether there was room for condonation on the question.
In this case, the appeal tribunal found that it had jurisdiction to hear and decide the matter and that the appeal should go ahead.
Another snakebite case revolved around the problem that the person who had been bitten wrote two dates on his forms. Hospital records, however, produced by the claimant, had shown the correct date and should have proved decisive, said the tribunal.
On September 28, the tribunal heard an appeal by Catherine Muchiri. Her complaint was that during July 2014, zebra ‘invaded’ her farm and ‘completely destroyed about six acres of fully grown maize’. She asked the MWCC to pay her out, but had no joy and then turned to the tribunal to award her compensation and damages.
Her claim was initially rejected by the MWCC because she didn’t have an official ‘verification form’. When her appeal was heard, she told the tribunal that she had previously planted maize and beans on her farm. However, when antelope destroyed the beans, she didn’t report and bring a claim. Now, she wanted to claim for the destruction by the zebra.
She said she had reported the problem to the police, the agricultural officer and to the chief in her area. All had been to her farm to inspect, had confirmed the destruction of her maize fields, and had suggested that she be compensated.
She said she took the relevant form to the MWCC where she was told that her paperwork was in order. She kept calling, but officials told her to wait for them to contact her. Eventually, six years later, they called to say she must come in, and she was shocked when they gave her a form saying she wouldn’t get compensation because she hadn’t given them a verification form.
The MWCC said it had considered the claim but could not pay her because of the form. The MWCC’s representative said it was not disputed that wild animals had invaded her farm and devoured mature crops there. In fact, the committee disputed none of the claims made by the farmer about what she had done to get compensation. The only problem was that she hadn’t attached the ‘actual verification form’ to her claim.
Members of the appeal tribunal said courts and tribunals were guided by the constitutional principle that justice had to be administered without undue regard to procedural technicalities. Moreover, the MWCC quoted no statutory basis for rejecting the farmer’s claim because a particular form was not attached. Having been told her paperwork was in order, she waited another six years before someone contacted her, only to tell her that she hadn’t attached a verification form in support of her claim.
There was a duty on the MWCC to tell her as soon as possible that she needed a particular form to support her claim. And it should not have rejected her claim just because she did not hand in a document that should, in any case, have been given to her by an official, at the time she filed her claim.
The tribunal found she was entitled to be paid compensation for her crops, and awarded her Kshs 180 000 as well as costs.
Another claim, rejected by Kenya Wildlife Service KWS), also led to the tribunal hearing the matter as an appeal. This time it involved Josphat Gathumbi, killed ‘by a wild animal believed to be a hyena’, and the case involved a relative seeking ‘full compensation from KWS according to the rates stipulated in relevant policy and law’ for his death.
KWS said that its mandate was to ‘address wildlife conservation, management and protection disputes’ and that it owed no duty of care under the Wildlife Conservation and Management Act or the common law or any other law. Its function was the ‘protection, conservation and management of wildlife, and not to compensation victims of human-wildlife conflicts at all’. The duty to compensate such victims lay with the state and the MWCC.
In response, the tribunal found that medical reports showed Gathumbi had indeed been killed by a wild animal, probably a hyena. Therefore, his relative was justified in submitting a claim for compensation.
It quoted the Wildlife Conservation and Management Act which said KWS had to set up wildlife conservation committees for each county, and that one of the functions of those committees was to review and recommend payment for compensation on claims resulting from loss or damage caused by wildlife.
Clearly, the law stipulated an essential role for KWS in dealing with compensation claims for injury or death or damage to property by wildlife, said the tribunal, adding that it found KWS had the duty to consider and award compensation in such cases.
Based on similar claims, the tribunal ordered that KWS had to pay the appellant Kshs 5 000 000 as compensation.
If there is a linking theme in all these decisions, and presumably in others heard by the tribunal, it’s the fact that the claimants come across as poor, perhaps illiterate and certainly struggling to deal with the various administrative demands of making a claim. It’s as well that they don’t have to go to the courts as the first port of call, but that they are met and heard by the tribunal which is a less formal body but one that nevertheless has a sharp sense of what justice requires.