On 29th February 2024, the High Court in Narok rendered its decision in Dong Yi (suing on behalf and as the Administrator of the Estate of Luo Jinli) v Sun Africa Hotels Limited t/a Keekorok Lodge Masai Mara Narok High Court Civil Case No 12 of 2019.
Briefly, the facts of the dispute are as follows. The Plaintiff and his wife were tourists, lodging at the Defendant’s establishment. At dinner, there was an altercation between another guest, let us call him X, and the Plaintiff and his wife. The altercation turned violent, and X used a steak knife to stab the deceased and her husband, the Plaintiff. The Plaintiff’s wife succumbed to her injuries, on which account the Plaintiff brought an action in negligence against the Defendant for failing to exercise due care in preventing the attack.
In its determination, the High Court found the Defendant wholly liable in damages to the Plaintiff.
To succeed in a negligence claim, the Plaintiff must prove that the Defendant owed a duty of care, that the duty of care was breached, and the harm caused by the breach was reasonably foreseeable. Applying these principles of law to the case, the fact that the Plaintiff and his wife were on the Defendant’s premises created a proximate relationship out of which the duty of care arose. It was indeed common ground between the Plaintiff and Defendant that the latter owed the former a duty of care, courtesy of the Occupier’s Liability Act, Cap 34. This Act imposes a duty of care on occupiers of premises for injury caused to visitors, where the injury is reasonably foreseeable because of failure to exercise the duty of care. Although the occupier’s duty of care is now codified into statute, its origins lie in common law. In the landmark tort case of Donoghue v Stevenson[1932] AC 562, the test for the existence of the duty was whether it was reasonably foreseeable that the acts or omissions of the Defendant were likely to affect the Plaintiff. If so, the Defendant owed the Plaintiff a duty of care.
In Dong Yi, the Plaintiff relied on section 4(1) of the Act, while the Defendant relied on section 3(1) of the Act. These sections provide as hereunder:
3. Extent of occupier’s ordinary duty
(1) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.
4. Effect of contract on occupier’s liability to third party
(1) Where an occupier of premises is bound by contract to permit persons who are strangers to the contract to enter or use the premises, the duty of care which he owes to them as his visitors cannot be restricted or excluded by that contract, but (subject to any provision of the contract to the contrary) shall include the duty to perform his obligations under the contract, whether undertaken for their protection or not, in so far as those obligations go beyond the obligations otherwise involved in that duty.
The Court, in examining whether the Defendant had observed its duty of care, held that ‘fighting in restaurants is foreseeable’ (para. 70) and further, that ‘use of knives meant for eating as weaponry’ is also foreseeable (para. 71). It held that it was therefore the Defendant’s fault that its failure to provide ‘adequate security’ in the dining hall to prevent fighting and use of cutlery as a weapon amounted to actionable negligence. With respect, this is an unwarranted extension of the duty of care. While it is true that people may fight in restaurants, and may use knives as weapons, this does not fit into a ‘foreseeable consequence’ by the standard of a reasonable person. On the contrary, it may be argued that it is not reasonable to hold that fighting in a restaurant, and to use a knife to attack another during an argument, is a logical course of events, as one would say of an accident (and consequential harm) being a logical consequence of dangerous driving, or failing to maintain premises in good order.
Among the cases cited by the Plaintiff was the famous English case, Caparo Industries PLC v Dickman [1990] 2 AC 605. In this case, the House of Lords held that to hold the Defendant liable, the Plaintiff had to show that: firstly, there was a proximate relationship, secondly, because of such proximity, any harm cause by the Defendant was reasonably foreseeable, and thirdly, it was ‘fair, just, and reasonable’ to impose liability.
It can hardly be the case that it is fair, just, and reasonable to impose liability on a Defendant, for ‘failing to provide security’ that would have stopped X from reacting in an unreasonable, and indeed, in a criminal fashion towards the Plaintiff. In the Court’s opinion, ‘some enterprises place[d] workers trained in security at strategic positions ‘just in case’ of any security lapse, who also keep on finding whether the guests are ok’ and further, that ‘prudence in security and risk management for such enterprises is to proactively and continually identify, assess risk areas and prescribe appropriate measures to mitigate the risks.’ Unfortunately, the Court appeared to be testifying as its own expert witness. Furthermore, the Court appeared to accept the Plaintiff’s testimony that, when returning to the hotel from a game drive, he ‘did not observe any security checks’ as evidence of a lack of proper security measures. How such security checks would have prevented the Defendant’s attack is bizarre. The Defendant used a steak knife that was in the dining hall to fatally attack the Plaintiff’s wife: he did not bring in a weapon from outside that a security check would have exposed.
In Soma Properties Ltd v H A Y MNairobi Court of Appeal Civil Appeal No 74 of 2005, the Respondent sued on behalf of the deceased, his daughter, who was killed in crossfire following a robbery at the Appellant’s mall. Thieves had raided the Appellant’s mall and robbed a bank. In the ensuing counter-operation, there was an exchange of fire, resulting in the death of the Respondent’s daughter. The High Court found the Appellant (Defendant in the High Court) liable in negligence for having failed to observe the duty of care, by failing have an appropriate security system that would have alerted visitors to the mall of an ongoing security operation. The Court of Appeal set aside the trial court’s finding of liability against the Appellant, holding that the Court had imposed a different standard of the test of the statutory duty of common care on the Appellant. The Appellant had employed reasonable safety measures in place at the time. Extending the duty of care to the actions of independent third-party actors was a step beyond what was reasonable.
Similarly, the High Court in Dong Yi appears to have imposed a different test of the statutory duty of common care on the Defendant. It is not an industry standard for hotels to employ guards, armed or otherwise, in dining halls to prevent customers from assaulting other customers using cutlery, thereby finding the Defendant liable for failing to have done so on its premises on the fateful day.
