Knives Out: A Case of Occupier’s Liability in Kenya

The High Court in Kenya recently considered the application of the doctrine of Occupier’s Liability in DY v SAHL which in Kenya has developed initially from common law and eventually codified in statute in the Occupiers’ Liability Act. In that case, the Plaintiff was the Representative of the Estate of his deceased wife who was fatally stabbed using a steak knife while on holiday staying at the Defendant’s luxury hotel.

Basis of Claim

The Plaintiff sued the Defendant for damages for breach of the occupier’s duty of care. In making the claim, the Plaintiff argued that his wife’s death was a result of the Defendant’s negligence who owed the Plaintiff and his wife an occupier’s duty of care.

A verbal altercation occurred between the Plaintiff, his late wife and one other guest, a foreign national, who was also on holiday at the Defendant’s hotel. As a result of the altercation, the third guest stabbed the Plaintiff’s wife with a steak knife that had been placed on one of the restaurant tables as part of the day’s lunch place setting.

The Plaintiff argued that the hotel’s duty of care extended to this situation especially because the hotel sells alcohol to guests who when inebriated can possibly be foreseen to attack other guests.

Defence to Claim

The Defendant in its defence argued that the altercation between the guests involved was in a foreign language and that none of the Defendant’s staff could understand what the guests were arguing about. It also argued that steak knives are ordinarily placed on tables as part of the place setting before a meal and the hotel could not reasonably expect these would be used to stab a guest as was the case in this context.

The Defendant also argued that although it had security personnel, they would not ordinarily be stationed inside the restaurant but rather on the outside of the hotel. The Defendant further argued that reasonable measures and systems conforming to standards of practice in the luxury hotel industry were in place and the duty of care could not be stretched beyond that. 

The Defendant finally argued there was no casual link between the fatal stabbing incident and the Defendant’s conduct therefore liability for the incident could not be inferred on the Defendant as the unfortunate incident was not reasonably foreseeable.

Court’s Determination

The High Court in finding that the Defendant was liable to the Plaintiff under the doctrine of Occupier’s Liability held that:

1. The Defendant’s response to the altercation by the guests who were accepted to have been communicating in raised voices was a little too late despite the fact that this was in a foreign language.
2. It is reasonably foreseeable that fighting in restaurants would occur and the Defendant should have placed security guards more strategically within the restaurant and not outside. It was also reasonably foreseeable that steak knives could be used as deadly weapons.
3. Considering the totality of the circumstances the Defendant was in breach of its duty of care to the Plaintiff and his late wife.

The High Court awarded the Plaintiff damages against the Defendant for an eye watering sum of about USD 3 Million.

Conclusion

This decision is likely to have far reaching implications on the hotel and hospitality industry in Kenya as it certainly extends the occupier’s duty of care to guests in their establishments beyond what was previously the case.

For more information on Occupier’s Liability in Kenya, please reach out to us at info@clydeco.ke.