NAME; NYAWA JOSHUA MALIDZO REG NO: LLB-35-16 COURSE: TORTS NEGLIGENCE; KENYAN PERSPECTIVE INTRODUCTION

NAME; NYAWA JOSHUA MALIDZO

 

REG NO: LLB-35-16

 

COURSE: TORTS

 

NEGLIGENCE; KENYAN PERSPECTIVE

 

INTRODUCTION

Negligence falls under the law of torts which was first developed in England but was brought to Kenya by the colonialists and it was received and demarcated by the judicature act[1].Negligence was introduced in order to offer someone a recourse where there is no privity but harm has been suffered[2].

DEFINITION OF NEGLIGENCE

in Rosemary wanjiru kungu v Elijah macharia githinji &another(2014)EklR,, ‘Negligence is the breach of a legal duty to take care ,resulting in damage to the plaintiff which was not desired by the plaintiff’, the same statements were echoed in  Jimmy paul semenye V Aga khan health services T/A Aga khan hospital &2 others[3] ‘ negligence means more than needless or careless conduct ,whether in omission or commission ,it properly connotes the complex concept of duty of care, breach of that duty and damage ,thereby suffered by the person to whom the duty was owing’

Negligence is therefore an act or an omission that results to harm to a person, the harm need not be desired by the party making the act or the omission, and there must be a legal duty. Negligence also does not involve a state mind   ; it is a conduct which involves unreasonably great risk of causing harm[4]. The harm suffered also need not to have been desired by the particular defendant.

Elements of negligence

For a plaintiff to succeed in an action for negligence, he or she should be able to prove the three elements;

1. Duty of care owed to the defendant.2.breach of the duty of care 3.as a result of the duty of care the plaintiff suffered damage[5]

It’s not all careless acts that are actionable in order for one to succeed in negligence one has to prove certain elements, the words of M.J ANYORA gives a lot of authority, in Beauty line limited v David njuguna gichari (2012} eklr, an actionable negligence consists of the breach of duty to take care that was owed by the defendant to the plaintiff And which results in damage to the plaintiff which was not desired by the defendant.

1.duty of care

The first element in the plaintiff’s case is whether the defendant owed him  a duty to take reasonable care.[6].

In Kenya breweries limited v Godfrey odoyo civil suit no.127 of 2007, it was held that a duty of care is owed to a neighbor. And who is a neighbour, the court quoted the famous Neighbor principle ‘you must take reasonable care to avoid acts and omissions which you can reasonably foresee are likely to injure my neighbour.who then in law is my neighbour, are persons who are so closely and directly affected my act that I ought to reasonably have them in contemplation when iam directing my mind to acts and omissions which are called in question’, the underlining is mine.

The test as to whether a duty of care exists or not is the TEST OF FORESEEABILITY and not physical closeness[7].  What is foreseeable depends on each case’s circumstances. IN Dwa estate ltd v nelson kawembe musili (2008) Eklr, where the plaintiff was an employee of the appellants, was attacked by a dog, a witness   of the appellant admitted that indeed he was aware of animals coming to the firm during the day and also at night, it was held by judge lenaola that it was reasonable foreseeable that a person would be bitten by the dogs. The reasoning was also echoed in Eastern produce ltd v Ebby khasoa, HCCA 82/2002(eldoret), DCLU J, while quoting pg. 218 of SALMOMD ON TORTS, The test of foreseeability does not assist the appellant, in my view the attack by the dog was foreseeable in the circumstances of this case, they should therefore have known of the probability of the dogs veering into their farms and biting workers. If the duty of care is established, the plaintiff need not be identifiable at the time of the act or omission, as in Rko &another v Kenya power and lighting company ltd (2005)eklr ,where the defendants had left a live wire open and a villager who was grazing stepped on it and was electrocuted, the court that ‘ it is my view that the accident was reasonable foreseeable, also in miriti v firoze construction (1982)   KLR, where the defendants had dug trenches closer to the house of a plaintiff and a child of the plaintiff fell into the trench and drowned when it had rained, it was held that children of tender age are likely to be attracted to such sites, and the defendant would have taken reasonable care to protect the children.

There is no duty of care for pure economic loss[8].A negligently severs an electricity cable which leads  to inaction in b’s company Who has a contract with F ,who suffers economic loss as a result of B’s inaction, is there a duty of care to F owed by A?, in Jackie Distributors v Cooperative bank of Kenya(2013)eklr the plaintiff had closed his business  for the negligent acts of the defendant, the defendant had messed up with his accounts, the plaintiff sought to recover all the profits that he would have made had the defendant not acted negligently, J.B HAVELOCK stated’ in fact I would go on as to say that the loss of profits were not foreseeable but were mere merely figments of the imagination rather that hard facts’. Pure economic loss is not recoverable because it is not foreseeable.

There is a duty of care for negligent misstatements, if B who is a manufacturer of Omo is approached by C who wants to open a business of selling Omo and B tells him that g\hewould make profits within two months and goes ahead to open the business in the village but sells nothing and suffers a loss ,Is there a duty of acre owed by B to C? , yes . It is a duty of care that arises where there is a special relationship between the plaintiff and the defendants and there is no disclaimer[9]. A special relationship will arise according to MG MULI  in Hilton wosinya v KCB ltd(1976)eklr where one possessed of special skill undertakes to apply that skill for the assistance of another person who relies on such skill ,in such a an instance a duty of care will arise’.. in KCB v kabita T/A odongo kabita valuers (2002)2klr 419, where the plaintiffs had instructed the defendants to go and value the property of a client to the bank, the valuers went ahead and valued a wrong property, on the basis of the report the bank issued a loan to the client who defaulted, and bank later found out the clients’ property was not worth the loan. They sued the valuers.JUSTICE RINGERA held them liable ‘the defendant as a professional duly instructed by the plaintiff owed him a duty of care, since he knew that the professional opinion would be relied upon, the defendant breached that duty and the plaintiff relied on their opinion, even though err is human, for a professional to err as a result of not applying the required skill is negligence’[10].

There is a duty of care not to cause emotional distress through reckless statements /acts: but the plaintiff must have been reasonable foreseeable. In Jeremiah wachira ichara &8 others v Nation media Group (2005) eklr, where the plaintiffs alleged to have suffered nervous shock which was a result of the defendant’s negligence when the published the the 1st plaintiff had been shot dead. The court held that the duty of care was owed to the 1st plaintiff himself and the nuclear family while the extended family were not reasonable foreseeable ‘the test of liability for nervous shock was reasonable foreseeability of the plaintiff being injured by nervous shock as a result of the defendants negligence.it was reasonable foreseeable that the nuclear family would suffer nervous shock but it was not reasonable foreseeable for the members of the extended family.

Duty of care may be limited by public policy; do the police owe a duty of care to the public at large or to an individual?, it has been held that imposing a duty on the police to have a duty of care to each individual will create unnecessary burden and it may make them exercise their duty in a defensive way. in Charles murigu muriithi & 2 others v attorney general(2015)eklr, where the petitioners were seeking damages for the failure of the police to protect their property during the post-election violence ,was held that’ yes the police owe a general duty to maintain law and peace and to property and lives ,this is the duty of care ,but in our part we find that the police’s duty to protect the citizens and their properties from violence is generally owed to the public at large and not to specific individuals’’[11]The general that that the police do not owe a duty of care to each individual has exceptions, in the Charles muriithi case supra,provides an exception ,that the plaintiff must prove that the police inaction placed him in a position of danger which they would not have faced ,example is when a person has reported to the police who fail to act. In Roshanali karmali khimji pradhan v the AG (2004) eklr, where the plaintiff who owns a farm made several reports to the police agents of an armed gang trespassing on his land but the security agent did not do anything, eventually his farm was vandalized and lost several assets. The police were held to be liable; their defense that they owed a duty to the public at large and not an individual was rejected.

There is no duty to rescue a person who is in peril; The Parable of theGood Samaritan (Lu10:25-37) New International Version (NIV), makes it a duty to everyone to rescue a person in peril but that is not the stand in law, generally it can be said that a person who does nothing has no liability whereas the good Samaritan could be sued and be held liable, law should be used to prevent people from harming one another rather than forcing them to confer benefits to one another[12].in Nandi tea estates v Alfonse dera ainea(2016)eklr, The respondent had sued his employer for negligence claiming that it was the duty of the appellant to mark all the ditches in his farm, it was found out that the respondent had worked in the firm since 1991 and he knew the terrain ,the appellant was not expected to come to his rescue “ in my thinking there is no duty to rescue”.

There are exceptions to the rule,; 1.where there exists a special relationship between the parties

A) employers and employees. in   Boniface mutama kavita v carton manufacturers ltd civil appeal NO.670 of 2003,’the relationship between the appellant and the respondent is that of employer and employee .the employer is expected to take all reasonable precautions for the safety of its employees’[13]

B) Occupiers and visitors.in Ali v gitau (1992) eklr, the plaintiff claimed that the deceased had died after the mezzanine floor of a shop collapsed falling on him. The judge quoted sec 3(2) of the occupier’s liability act cap 34 which provides for a common duty of care whereby the occupier of any premise owes a common duty of care to his visitors

c) parents and children ; Section 23 of the Children's Act defines parental responsibility to mean all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child's property in a manner consistent with the evolving capacities of the child. The duties of the parent have been broken down to: On duties it includes the duty to maintain the child and in particular to provide him with an adequate diet, shelter, clothing, medical care and education and guidance. There is also a duty to protect the child from neglect, discrimination and abuse, failure to do so the parent will held liable.

C)Where one is in control of a 3rd party who causes harm . Salmond and heuston on the law of torts state “in general there is no liability for acts or omissions of others unless there is a special relationship between the parties but a right to control the activities of an independent third party may give rise to a special relationship’In PA OKELLO V Mm Nsereko T/A kaburru okello and partners v stella karimi kabis &2others(2012) the respondent was in control of the 3rd party who had owed a duty to prevent harm from occurring.

D) where one is in control of a dangerous thing; when one is in control of a dangerous thing is under a duty one is under a duty of care to prevent harm from occurring to another, in Kenya power and lighting supreme was held that KPLC  had a duty of care to ensure that the power infrastructure it had installed was properly maintained to prevent accidents.

II THE BREACH OF DUTY

‘ a reasonable man is at the centre of the law and indeed, it is then what is the cog in the wheel of legitimate expectation’. The test is usually that of a reasonable man, what would a reasonable man have done or omitted to do in the circumstances? ,the Kenyan gazette 30 Dec 1990,gives a description of a reasonable man ,one is negligent if reasonable person in one’s position would have taken reasonable steps to prevent the harm .Moreover if a person undertakes to do an act that requires specific skills, the basis of judgment will  be that of a competent person in the field of skill[14].also the test is not that of the highly qualified in the field, kuloba j in apollo insurance co.ltd v flavia Rodrigues &co advocates hccc no 431 of 2012,’the test is that of the ordinary skilled man exercising and professing to have that special skill’

There are factors that are usually considered when determining a reasonable man

; 1;maginitude of harm e.g. the likelihood of the harm, if likelihood of the harm is high ,high precautions should be taken, in miriti case supra it was held that the likelihood of a child of tender age being attracted to such sites was high, they would have taken extra steps, also when a driver drives a vehicle without lights,[15].Also the seriousness of the harm, in Ruth nthenya kilonzo v standard chattered limited(2007)eklr, where a woman complained of suffering from back ache and asked for protective measures but she was merely transferred from a working station, and she later suffered a disease.

2,the importance of the object to be achieved ,if the purpose to be served is sufficiently important ,it  justifies the assumption of abnormal risk.in Berita wangari muchene &Stephen wairagu&2 others(2004)eklr, MA ANGA’WA held ‘ I did rule otherwise in a case where a police vehicle that its siren on was chasing a suspect in another vehicle ,yes it was the police vehicle that caused the accident but it was justified”, their defense failed because the vehicle was not on duty.

3. Practicability of precautions; if the cost of eliminating the risk is out of proportion to the extent of the risk, then the defendant won’t be liable. In Tembo investments ltd v josephat kazungu (2005)eklr, ‘in measuring the care one must balance the risk against the measures necessary to eliminate it, that duty goes as far as it is reasonable, the practical extent of taking the risk’[16]

PROOF OF BREACH.

 The burden of proof lies on the plaintiff by virtue of sec 107 of the evidence act cap 80,laws of Kenya ‘ whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist’. In Kenya breweries ltd v William kipsang (2007) eklr, ‘the law in respect of proving negligence is very clear. The burden of proof lies on the plaintiff to prove negligence and liability on a balance of probability’’[17].the plaintiff has to prove his case On a balance of probability ,visram j in stappack industries supra ‘ a person making an allegation ,must adduce evidence which on a balance of probability a connection between someone’s negligence and his injury may be drawn, and the standard of proof in criminal cases is much higher’,

what if one has failed to adduce evidence on the balance of probability?, the suit will be thrown out in Joseph anjichi v kenya vehicle manufacturers ltd (2009) eklr, where the plaintiff had fell down while lifting a twenty litre jerrican while at work and claimed to have suffered a fracture due to the defendants negligence, it was held that the defendant had failed to adduce evidence to prove negligence on a balance of probabilities and thus the claim had to be thrown out’. Same words that were echoed by Rimita j[18] .Salmond and Heuston  at pg 244 states that ‘unless the plaintiff produces reasonable evidence that the accident was caused by the defendants negligence, there is no case to answer and it is the duty of the court to enter judgment for the defendant. when the facts of an accident are well known by the defendant, the plaintiff will rely on ‘RES IPSA LOQUITUR’ WHICH literally means that the thing speaks for itself. In mugunya&another v abdallla (2004) eklr, the doctrine of res ipsa loquitur is applicable when the facts bearing the causation of the accident are unknown to the plaintiff and are ought to be within the knowledge of the defendant”. More also res ipsa loquitur does not mean that when a person is hurt, it implies negligence.[19]

There are conditions for the application of the doctrine; in Richard kanyango & 2others v David mukii mereka (2007) eklr, where the respondent was a father of the deceased who had died after an accident in the appellant’s vehicle. He relied on res ipsa loquitur,it was held that res ipsa loquitur applied because ‘ in the ordinary course of things ,vehicles do not leave leave the road and ram into trees off the road, he has also shown that the vehicle was in the control of the defendant and the defendant has failed to offer an explanation”.[20].

A)the thing causing the accident was under the exclusive control of the defendant., Wambilganga j in Ferdinand wambua musyimi v Akamba road services ltd(MSA HCCC NO 468 OF 1991),The doctrine will apply if the thing that caused the damage was under the sole management and control of the defendant or someone who he has right to control” e.g. an employer and employee; in Obed Mutua kinyili v wells fargo&another(2014)eklr,the plaintiff was the brother of the deceased who was involved in an accident in the defendants vehicle, the first defendant was held liable because as the owner of the car, the subject car was under the control and management of its employee’

B)the accident does not happen in the absence of negligence .in the Richard kanyango case supra,’ I feel no doubt that the defendant was negligent. The plaintiff has argued successfully that in the ordinary course of things, vehicles do not leave the road and ram into trees off the road’. On similar facts was the case of Kenya bus services ltd v Dina kawira humprey(2003)ekr, where a bus had left the road and ran over the road ,it was held that buses when properly managed, properly serviced &properly driven do not just run over bridges and plunge into rivers without any negligence’[21]

C) IN THE ABSENCE OF AN EXPLANATION; the doctrine only applies where the course of the accident is unknown, but where the course of the accident is known it doesn’t apply. In embu bus services supra, where it was held that there was reasonable time before the overturning of the bus and the breaking, res ipsa loquitur applicable as the defendant could not offer an explanation. in contrast is where the cause of the accident is known e.g. in kago v njenga (1981) klr 186[22], where the cause of the accident was shown to be a tyre burst, and that no negligence had been proved after the tyre burst, more also is the case of Boniface waiti &another v Michael kariuki kamau (2007) eklr, where the cause of the accident was shown to be a Nissan that cut into the way of the defendant’s vehicle, and hence the doctrine could not apply.

III CAUSATION AND REMOTENESS OF DAMAGE

Once the existence of the duty of care has been established, which has been followed by a breach of that duty, the final element to be proved of the essential elements of actionable negligence, has the consequential damage been suffered? Then there must be a causal link between the defendant act and the plaintiff’s injury. MUSINGA J in Amalgamated saw mills ltd v Stephen moturi nguru HCA75/2015 held ‘revisiting the most important issue of causation, it is trite law that the burden of proof of fact or allegation is on the plaintiff. He must prove a causal link between someone’s negligence and his injury. An injury per se is not enough to hold someone liable .speaking in Statpack supra VISRAM J states ‘coming now to the most important element of causation. The plaintiff must prove a causal link between someone’s negligence and his injury.

factual causation; the test is ‘the but for test”, the damage would not have occurred but for the breach of the duty.in Francis muchai karera v Jane wehu&another(2009)eklr, where the defendant had allowed electric current to flow which led to the death of the deceased, the magistrate held that ‘ if I were to use the’ but for test’, the inference that will be drawn is that but for the defendants allowing the use of free flow of electric current ,the deceased would not have died’[23].

Legal causation ;after the factual causation has been proved, the next issue is whether under law the defendant would be held liable, he will be held liable if the chain of causation was not disrupted[24], by intervening acts(Novus actus interveniens).1.intervening act of act of a 3rd party in thyssen v wakisu estate ltd (1960)EA 280,where the plaintiff was  injured in a collision that caused to be unconscious for a half an hour, within which some money was stolen from him, he sued the defendant who was the driver of the vehicle, ‘the defendant cannot be liable for this loss. It was unforeseeable and there was Novus actus interveniens of a third party.’ See Abwogi v aburi (1975-98) EA 255.

Intervening act of the plaintiff; it is normally associated with contributory negligence, that the plaintiff contributed the act, but his act must be independent from the damage suffered e.g. in Edward mzamili katana supra, where the plaintiff was involved in an accident and he suffered a fracture and metal plates were fitted in his legs, while on crutches in church he fell down and broke the metal plates, he sued the defendants who relied on novus actus interveniens, but it was rejected by the courts who held that there was no actus interveniens.

Remoteness of damage; the damage suffered must have been reasonable foreseeable foreseeable .in eastern produce ltd v Wilfred kisivuli fugisi(2008)eklr,where the plaintiff working as an employee of the defendant was bitten by a spider while at work.he sued the defendant and it was held that ‘I think that is a case of remoteness.it is my view that in the circumstances, it was too remote for the company to foresee that a spider will bite the plaintiff and he would be injured[25],if the damage suffered was reasonable foreseeable it does not how the accident arose.

PROFESSIONAL NEGLIGENCE, in Murai v Wainanina {NO.4}{1982}KLR 38, Madan j stated ‘the door to justice is not closed because a person of experience who ought to have known better has made a mistake. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify if the interests of justice so dictate”

The test for the breach of duty owed to a professional is that of a reasonable competent person in that field, in Nevill &another supra,’the degree of care required by the law is such degree of care as a normal skillful member of the profession may reasonably be expected to exercise in the actual circumstances’. The test is also not that of a highly qualified person in the field[26].

Advocates.;

for a claim to succeed, all the three elements must be shown, [27].in Kenya commercial bank v kabita t/a odongo kavita (2002) eklr, where the plaintiff instructed the defendant to prepare a report on the value of the property of the defendant, the defendant valued a wrong property, on the basis of that report, the bank issued a loan to the client. The defendants were held liable,[28]. The duty of care is also owed to a non-client even though no money has exchanged hands but provided there is an assumption of responsibility, National bank of Kenya v e.musiru kamau&another(2009)eklr,’so long as there is an assumption of responsibility by the professional ,he owes a duty of care to all those relying on his skill’. There is no liability for an error in judgment or for ignorance of some obscure point of law but he will be liable for an act of gross negligence or ignorance of matters of law consistently arise in law[29]

MEDICAL NEGLIGENCE;

 there is a duty of care between a doctor and a patient, in jimmy Paul semenye v aga khan hospital&2others(2006)eklr, it was held that’ there exists a duty of care between the patient and the doctor, hospital or health provider, once the relationship has been established, the doctor has the following duty to possess medical knowledge and skills required of a reasonably competent doctor in the same speciality.for a claim of negligence to succeed, all the three elements must be proved, in m(a minor)v amulenga &another, ‘the plaintiff must prove that there was a duty of care owed to him by the defendant and that there was breach of that duty and breach of which resulted in damage to the plaintiff which is not remote’[30].the duty of care arises when the professional assumes a responsibility, in James Paul semenye supra,where a child was born with a disability arising from the acts of the defendant.it was held that a duty of care arises once a doctor or health care professional agrees to diagnose or treat that patient, he assumes a responsibility’ ,the authorities are also held liable for the negligent acts of its employees, in m(a minor) v amulega case, where a minor was found at the shores of a river, dead while she had been left at the hospital, the authorities were held negligent.

The standard of care expected of a doctor is not that of a reasonable man or woman in the streets, rather it is the standard of the reasonable competent medical practitioner[31] or in Aga khan hospital v busan munyambu KAR375;(1976-1985) EA 3,’the true test of establishing negligence on the part of the doctor is whether he has been proved to have been guilty of such failure as no doctor of ordinary skill would be guilty of it acting within the ordinary care’’

GENERAL DEFENCES IN NEGLIGENCE

1. VOLENTI NON FIT INJURIA; this is where the plaintiff agrees to undertake the risk at his own expense (an author of his own misfortune), the basic element is consent but not mere knowledge, more so it should be shown that it was voluntarily undertaken, in united millers ltd &another v John mangoro Njoru (2016) eklr, the respondent had hiked a lift from the driver, who was drunk, which was involved in an accident causing harm to him. The appellant argued that by hiking a lift, he was an author of his own misfortune, JUDGE M.MATIVO stated,’ it must be shown that he acted voluntarily. The maxim does not mean that a person assents to a risk merely because he knows of it’. It can therefore be said that full knowledge is irrelevant. When one also encourages another to create the risk ,such a person won’t recover from it, in khimji v Tanga Mombasa transport co ltd(1962)E.A 419 , where the deceased was in a vehicle and the plaintiffs encouraged the driver to cross a flooded river, the bus was swept off, it was held that the maxim would apply. The maxim would also apply where a person participates in an activity which is dangerous; it is usually held that when a watchman accepts that job, he should also prepare himself with robbers. In David ngotho mugunga v mugomoni estate( Nairobi HCCA NO.2366 OF 1969),It was held that any watchman who takes such a job does take the risk of being attacked by robbers and being hurt, there can be no doubt about it, The employer in my view cannot be liable for the acts of robbers.[32].However the mere reason that one has accepted to become a watchman, it does not exclude the employee from being liable if he does take reasonable precautions, NJARANGI J stated in Makala maku mumende v Nyali Golf club CA NO.16 of 1989 Mombasa ‘just because an accepts to do a job which happens to be inherently dangerous, in my judgment, no warrant or excuse for the employer to negligent his side of the bargain and ensure the minimum reasonable measures of protection.[33]

2 Contributory negligence; it is always considered that the accident was partly caused by the fault of the defendant and partly by the fault of the plaintiff. If this type of defense succeeds the cost will be shared according to the extent of the contribution. In Arkay industries limited v Amani (1990) KLR 309, where a worker while working on a machine, he stood on a slippery table and he knew that it was slippery fell into the machine leading to damage on his body. He used the employer, the court held him to be contributory negligent. However contributory negligence must be pleaded by the defendant, but if it has not been pleaded, the defense won‘t apply[34].

A child can also be held to be contributory negligent but certain factors must be considered; the age of the child and the ability to understand, in Attorney general v Vinod(1971)EA147,where a boy of 8 years ran across a road from a gap between parked cars, the defendant raised the defense of contributory negligence, the judge said ’in dealing with contributory negligence on the part of a child ,the age of this boy and his ability to understand and appreciate the dangers involved have to be taken into account, and the boy was 1% negligent’’. The same reasoning was taken by the court in Butt v khan (1981) eklr.[35]

3. Ex turpi causa non oritur action, Which Is a Latin word and it means "from a dishonorable cause an action does not arise", if a person has gone to steal and as result is injured when he has gone to steal, and he is attacked by the dogs of the owner, the owner cannot be held liable for that act. PO KIAGE states in Kenya pipe line co. Ltd v Gencore Energy(uk)limited(2015)eklr,’ we respectfully agree with the pronouncement of the law that still speaks unmistakably two centuries later, What the English could not do to assist a lawbreaker, Kenyan courts and courts anywhere should not do”, also in Festus Ogada v Hans mollin(2009)eklr, ‘we are content to merely restate it as good law, that no court is to enforce an illegal agreement , where the illegality is brought to its notice and if the person invoking the aid of the court is himself implicated in the illegality’.

4. exclusion clause, are clauses, usually written down, that say that one party to the contract will not be responsible for certain happenings. In African safari club ltd v Kenya kazi ltd (1990) eklr, it was held that ‘where there is an exclusion clause; the defendant won’t be held liable’. However it should be reasonable as shown In Eveready transport company (K) ltd v proost paper (EA) LTD (2005) EKLR, where the appellant were a common carrier of goods, while transporting the goods of the respondent, its lorry overturned damaging the goods, they sought to rely on the clause “at owners risk” which was rejected by judge Alnashir visram stating that ‘a common carrier of goods cannot invoke the exclusion clause in the face of negligence on its part”

 

[1]          Sect 3[1]c of the judicature act

[2]          Agricultural finance corporation v lengetia ltd,[1972]KLR 765 ‘A person who is not part to a contract cannot sue or make him liable upon it’, in Turfena achieng Abuto &another v William ambani mise c/o Ahero total service station and another (1995)EkLR ,where a woman bought paraffin from a total station which later exploded went ahead to sue the manufacturer and she succeeded    

[3] In Anthony lunganya v Moi teaching and referral Hospital ,it further it talks of a conduct that falls below a legal standard that is established to protect others against unreasonable risks, Winfield and jolowiz at p.g 32 in their book on torts defines negligence as a breach of legal duty to take care which results in damage undesired by the defendant

 

[4]          See salmond and Houston on torts pg. 28

[5]          HM OKWENGU in Jeremiah wachira Ichaura & 8 others v Nation media Group(2005) Eklr, for a tort of negligence to succeed the three elements must be established ,the laws of kenya by Tudor Jackson, Migai aketch while commenting on the the common law and redress at a workshop(www.lelrc.org/activities/workshop_0303/content/aketch states the three elements of negligence that should be present and identifies the duty of care situation, a breach of that duty and damage suffered by the plaintiff

[6]          John Cooke on law of torts pg. 28

[7]          LISSIT J suggests that physical closeness does not connote duty of care ,in Sedgwick Kenya insurance brokers v price water house coopers Kenya, High court civil appeal no 72 of 2006(Nairobi) ‘ the three criteria for the imposition of duty of care are foreseeability of damage, proximity of relationship and reasonableness of imposing a duty of care .two people might be physical Loss but if the damage was not foreseeable, there will be no duty of care

[8]          It is the loss of profit or value that the plaintiff would have made if the defendant had not acted negligently, emily acts negligently leading to the closure of Dan’s business, does Emily owe a duty of care not cause losses to john who is supplies goods to Emily’s shop?

[9]          Salmond and Houston on the torts pg. 232

[10]        See Pan Africa insurance limited &2 others v clearkson &southern limited(2008)eklr,’ the fact that the defendant embarked on the task gratuitously is enough to create the special relationship on which tortious duty is founded

[11]        Winfield and Jelowiz on their book on torts state that imposition of a duty on the public institutions will create unnecessary burden, it will make the police act in a defensive way. Also in Rift valley Agricultultural contractors ltd v Kenya wildlife service(2016)eklr,’the main purpose of limiting the duty of care by public policy is to avoid the imposition of unnecessary burden on the public institution’

[12]        See the duty to rescue; a reexamination and proposal by Jay silver

[13]        Statpack industries v James mbithi munyao Nairobi hccc no 152 of 2005,’an employer’s duty at common law is to take all reasonable care to ensure an employee’s safety, also  SEE work injury benefits act cap 236[sec 10)

[14]        Nevil &another v cooper &another (1958)EA594,

[15] Ndo T/A Ngomeni bus services v kakuzi ltd

 

[16]        In statpack industries supra,’ employer cannot babysit or watch over the employee constantly’, ALSO see Ruth nthenya kilonzo v standard chartered bank of Kenya ltd(2007)eklr,’the duty of an employer is not to prevent each and every harm, in order to be held liable, people must first look at what was done and what was not done’

[17]        Also see Charles worth &Percy on negligence at pg387, 9th edition

[18]        Geoffrey mureithi juma v Robert kariuki & 5 others (2012)eklr,the plaintiff had a duty to prove his case on the required standard and he has failed, as a result his case must fail

[19] Jeremiah maina kagema v kplc (2001)eklr,that merely because a horse is hurt at the end of a journey, or somebody is hurt in the streets implies negligence ,that is absurd.it means that the circumstances so to speak eloquent of the negligence of the somebody who brought about the state of things is complained of

 

[20]        In embu road services v riimi(1968)EA22

[21]        See Nzoia sugar co.v david naiyanya(2008)eklr

[22]        Ogol v muriithi(1985)klr359,where the pedestrian was hit by a vehicle that was driven by the defendant, and the plaintiff relied on the doctrine of res ipsa loquitur,it was held that ‘in the absence of any explanation ,a finding of negligence is inevitable; the doctrine applied

[23]        Washamiya v Kenyatta hospital board (2004)EA351,IN addition to proving negligence, the injury, loss ,damage of which he complains would have been avoided

[24]        Edward mzamili katana v CMC motors group&another (2006)eklr,’the plaintiff has to prove that there was no break in the chain of causation and that the defendants negligence was the effective or proximate cause of the injury

[25]       The administrator, hh the aga khan platinum jubilee hospital v munyambu(1985)klr,the surgical treatment, pain and suffering and the expense that occurred subsequent to the pressure  was not entirely as a consequence of the sore, in a sence that nexus could be established between the treatment and the appellants negligence.

[26]        Apollo insurance co ltd v flavia Rodrigues&co advocates Nairobi Hccc no 431

[27]        Kimani ng’ondu v Catherine waithira T/A waithira mwangi&co advocates (20130eklr,’it is trite law that in order for a claim for professional negligence to succeed, the claimant must satisfy the court as to the 3 elements.

[28]        Although human is to err, for a professional to err as a result of not applying professional skill and tools is negligence

[29]        Champion motor spares ltd v phadice&others(1969)EA42, KOGO V NYAMOGO AND NYAMOGO ADVOCATES(2004)KLR367

[30]        Herman nyangala tsuma v the Kenyatta hospital association T/A Nairobi,DR james mbuvi &DR ernest kioko

[31]        See Jimmy paul semenye supra

[32] See Associated battery manufacturers East Africa ltd v Julius mutunga (2005)eklr, Crops estate ltd v David Irungu Gathaka kariuki thub i(2002)eklr

[33] In Japheth Natse Ifedha v collindale(2014)eklr security co.ltd, where the defendant failed to provide a helmet

[34] Maina kaniari&another v Josephat muriuki wang’ondu CIVIL APPEALNO.14 OF 1989 CA (Ureported)

[35] Tayab v Kinanu(1983)KLR 115

---