Soma Properties Limited v H A Y M [2015] KECA 617 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a shopping centre's security was reasonable, so it was not liable for a visitor's death caused by criminals' actions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant failed to take reasonable measures to secure the safety of customers (whether the appellant breached the common duty of care under the Occupiers' Liability Act in respect of the criminal acts of third parties)
- 2.Whether the learned Judge had power to vary, without any party's invitation, the consent recorded by the parties on quantum
- 3.The respondent's cross-appeal grounds concerning the conduct of the trial proceedings
Key legal issues
#Scope of the occupier's common duty of care in respect of criminal acts of third parties
The duty is one of reasonable care measured against what a reasonably prudent person would do in all the circumstances; it is not a duty of perfection, and the standard is specific to each situation and to the time of the incident.
The court traced the duty to the Occupiers' Liability Act and comparative authority (Australia, USA), noting the question of liability for third-party crime is controversial abroad. In Kenya the duty extends to protection against criminal acts of third parties where the risk is foreseeable, judged by factors such as the nature of the business and prior similar incidents. In 1999, 35 guards, two armed police officers and an alarm system were reasonable; the robbery was in fact frustrated by these measures. Demanding more raised the statutory threshold.
Whether the appellant breached the common duty of care
No breach was established. The respondent failed to prove on a balance of probabilities that the appellant breached the common duty of care, and the trial judge applied a different, impermissible test.
The appellant led concrete evidence, including expert evidence from a retired senior police officer, that the security provided was reasonable, that metal detectors and CCTV were not industry practice at the time, and that CCTV would have had limited scope. The trial judge drifted from the statutory test by, for example, criticising the bank's money-counting arrangements and demanding fire drills, and made no express finding of breach. Foreseeability alone, without proof of an omission causing the injury, does not attach liability.
Power of the trial court to vary a consent order on quantum
The trial judge erred in reviewing, without any prompting by any party, the consent award of Kshs.20,000 for pain and suffering and substituting Kshs.1,000,000.
The consent recorded on 14th October 2004 by agreement fixed pain and suffering at Kshs.20,000 and loss of expectation of life at Kshs.80,000. The judge substituted the former award sua sponte. Citing Flora Wasike v Destimo Wamboko and Mwanyule v Said, counsel argued the court cannot constitute itself as a witness or decide on matters not canvassed. The court treated this as an error, though it did not need to remake the quantum since it allowed the appeal on liability.
Defence of volenti non fit injuria
The court disagreed with the trial judge's dismissal of volenti non fit injuria, though its decision rested primarily on absence of breach.
Ouko, JA stated that neither the appellant nor the deceased had full knowledge of the extent of the risk before the shooting, yet held the trial judge was wrong to find the doctrine inapplicable, remarking that he did not agree that volenti non fit injuria was not applicable. Githinji, JA did not analyse the doctrine, resting on the absence of breach. The point is thus somewhat subsidiary in the court's reasoning.
Legal principles established
#- An occupier's common duty of care under the Occupiers' Liability Act is a duty of reasonable care in all the circumstances; the Act imposes neither an absolute duty nor a guarantee of absolute safety, and no presumption of negligence arises merely because a person is injured on the premises.
- An occupier may owe a duty to protect visitors against criminal acts of third parties where the risk is foreseeable, but liability attaches only if the claimant proves some act or omission breaching the statutory standard of reasonableness; an occupier who has deployed reasonable systems escapes liability.
- A plaintiff invoking the Occupiers' Liability Act must point to some act or omission of the occupier causing the injury; the burden of proof is on a balance of probabilities and no presumption of negligence is created by the statute.
- A trial court cannot, on its own motion and without any party's invitation, review or vary a consent order recorded by the parties.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree in HCCC No. 1517 of 2002 set aside
- 3.Notice of cross-appeal dismissed
- 4.No orders as to costs of the appeal or the cross-appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held that the Occupiers' Liability Act imposes a duty of reasonable, not absolute, care; the appellant deployed 35 guards, two armed police officers and an alarm system, which were reasonable measures; the trial judge erred by raising the standard beyond the statutory threshold and by varying the consent on quantum without any party's invitation.
To demand, like the learned trial Judge did that the appellant ought to have done more, in the circumstances and requiring it to have put in place “adequate” measures, was to raise the threshold beyond that set by statute.p. 8
Wrote the judgment
Wrote a separate concurring judgment agreeing entirely with Ouko, JA. Emphasised that the Act imposes no absolute duty nor guarantees absolute safety, that the respondent failed to prove breach on a balance of probabilities, and that the trial judge drifted from the statutory test.
It is clear from the definition that the common duty imposed by the Act is to take reasonable care in all the circumstances of the case to see that the visitor is reasonably safe. The Act neither imposes on the occupier an absolute common duty of care nor guarantees a visitor absolute safety.p. 9
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1517 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Court of Appeal jurisdiction under the Constitution and the Appellate Jurisdiction Act, exercised as an appeal from HCCC No. 1517 of 2002)
Relief refused
#Respondent's cross-appeal
The cross-appeal was found to have no merit
Costs
No orders as to costs on account of the unfortunate circumstances presented in this matter; there shall be no orders as to costs of the appeal or the cross-appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Act neither imposes on the occupier an absolute common duty of care nor guarantees a visitor absolute safety.
Thus an occupier will escape liability if it is established that in the circumstances of the case, there were reasonable systems in place to secure the premises against foreseeable risk and danger.
Accordingly, I would allow the appeal with the result that the judgment and decree in HCCC No. 1517 of 2002 is set aside.
There shall be no orders as to costs of the appeal or the cross appeal.
I conclude that in all the circumstances of this case, the respondent did not establish a breach of common duty of care by the appellant.
Issues in the judgment
#The judgment text as supplied contains separate judgments of Ouko, JA and Githinji, JA but no separately signed judgment of J. Mohammed, JA, although Githinji, JA records that J. Mohammed, JA agrees and the coram lists three judges.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Soma Properties Limited v H A Y M [2015] KECA 617 (KLR)", Case Analysis (2015). Civil Appeal No. 74 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/617/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.