NEGLIGENCE IN KENYA

In Kenya, negligence is a civil wrong (tort) defined as the failure to act with the level of care that a reasonable person would have used in a similar situation, leading to harm or injury to someone else. It was originally introduced to Kenya from England through the Judicature Act to ensure people have a legal way to seek justice when they are harmed by someone else's carelessness.

The Foundation: The Neighbor Principle

The modern law of negligence is built on a famous concept known as the Neighbor Principle. While Kenyan courts frequently cite this principle, it originates from the landmark English case of Donoghue v. Stevenson (the snail in the ginger beer case). 
 
This principle states that you must take reasonable care to avoid acts or omissions that you can reasonably foresee might injure your neighbor.
 
In a legal sense, your neighbor isn't just the person living next door; they are anyone so closely and directly affected by your actions that you should have thought about them before acting.
 
The 3 Elements You Must Prove
 
To successfully sue someone for negligence in Kenya, the law follows the principle of no liability without fault. This means the person suing (the plaintiff) must prove three specific things:
  1. Duty of Care: You must show the defendant owed you a legal duty to be careful. The test for this is foreseeability, could the person have predicted that their action might cause harm?. For example, a power company owes a duty to the public to ensure live wires are not left exposed.
  2. Breach of Duty: You must prove the person failed to meet the standard of a reasonable man. If a person has special skills (like a doctor or lawyer), they are judged against a competent professional in their field, not just an average person.
  3. Damage and Causation: You must have suffered actual harm or loss. You also have to prove the but for test: that the harm would not have happened but for the defendant's carelessness.
Common Defenses
 
If you are sued for negligence, there are several ways to defend yourself:
  • Volenti Non Fit Injuria: This is when the plaintiff voluntarily accepted the risk. For example, if someone chooses to hike a lift with a driver they know is drunk, they may be seen as the author of their own misfortune.
  • Contributory Negligence: This occurs when the person who got hurt was also partly at fault for the accident. In these cases, the court might reduce the amount of money awarded based on the plaintiff's share of the blame.
  • Illegal Acts (Ex Turpi Causa): A person cannot usually claim damages if they were injured while committing a crime, such as a thief being bitten by a guard dog while trying to steal.

In conclusion, understanding negligence in Kenya is essential for anyone seeking legal recourse for harm caused by others. The law is firmly rooted in the principle of no liability without fault, meaning that the responsibility lies with the injured party to prove their case on a balance of probabilities. 

 

 

Catch you in the next blog!

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

 

 

 

 

 

 

 

 

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