Minor in snake bite loses Sh3m compensation on KWS appeal
The flooding impact across the country has claimed at least 210 people.
A minor who was bitten by a snake in Maua, Meru county has lost Sh3 million in compensation after the Court of Appeal overturned a High Court decision that had affirmed the magistrate’s award.
Three appellate judges agreed with the Kenya Wildlife Service’s and rejected the award saying the magistrates’ court lacked original jurisdiction to hear and determine the dispute.
Justices Wanjiru Karanja, Luka Kimaru and Aggrey Muchelule ruled that High Court judge Said Chitembwe erred when he dismissed the KWS’s appeal by holding that the lower court had jurisdiction to arbitrate the claim.
About nine years ago, a young boy was herding goats in his parent’s farm which neighbours Murerwa National Park in Maua sub-county when he was bitten by a snake.
The incident happened on November 4, 2015, and the minor was taken to Maua General Hospital where he was admitted for four days. He was subsequently put on physiotherapy before he was eventually discharged.
His parents, led by her mother Purity Kanini, reported the incident to the community warden at Murerwa National Park, accusing the wildlife service of negligence as the snake attacked the boy outside the park.
The family sued KWS seeking compensation but the State agency opposed the case claiming there was no negligence on its part as snakes naturally co-exist with human beings.
KWS further objected to the jurisdiction of the court to determine the dispute because, under section 25(3) of the Wildlife Conservation and Management Act, 2013, the boy’s parents ought to have first launched the claim to the County Wildlife Conservation and Compensation Committee.
Thereafter, the committee would then have verified and reviewed the claim before recommending to the Cabinet secretary responsible for Wildlife Conservation and Management for payment.
Maua chief magistrate heard the dispute and dismissed the plea noting it lacked jurisdiction to hear and determine the dispute. Consequently, the magistrate found KWS liable for negligence and awarded the boy Sh3 million.
Aggrieved, KWS appealed to the High Court in Meru but Justice Chitembwe, dismissed the appeal and affirmed the lower court’s decision, saying there were no reasons to interfere with the verdict.
The judge acknowledged that there were two conflicting decisions by the High Court on the question of whether in such a situation the trial court was duty bound to refer the dispute before to the County Wildlife Conservation and Compensation Committee or the court could assume jurisdiction and determine the dispute.
Justice Chitembwe found that the High Court had both the original and appellate jurisdiction to handle the case.
Undeterred, KWS moved to the Court of Appeal arguing that the dispute should not have been handled by the court and secondly, the award was excessively high.
The appellate judges concurred with KWS and set aside the award stating that a person injured by wildlife, could launch the claim to the County Wildlife Conservation and Compensation Committee for verification and recommend to the Cabinet secretary for payment.
Although the judges noted that a complaint was made to the County Wildlife Conservation and Compensation Committee, there was no evidence given as to what became of the complaint.
