Seeking payment for injuries in dog attack cases an uphill task

One day a dog may bite you and you later consider suing its owner for damages.

And you will eventually be awarded a lot of money. Well, it is not as simple as this.

Getting a court to compensate you for being bitten by someone’s dog is one of the most difficult tasks one can do, if cases decided so far are anything to go by.

DENY OWNERSHIP

Chances are that the individual you tell the court is the owner of the dog will deny ownership of the pet, and that legal jargon about “burden of proof” will be used to turn you away empty-handed.

Following the death of two-year-old Wilson Ngatia in Nyeri County on September 21 after being mauled by a neighbour’s dogs, which were later killed, the Nation dug up some of the disputes that have ended up in the corridors of justice as a result of dog bites.

In two of the cases published in the Kenya Law Reports, judges snatched thousands of shillings from the hands of dog bite victims who had won cases in lower courts.

Reason? It had not been proven that the dogs that bit them belonged to those who had been sued.

CONVINCED MAGISTRATE

On May 7, 2014, for instance, High Court judge Aggrey Muchelule, then based in Kisumu, threw out an award of Sh503,000 a magistrate had given to Mr Jacob Abwao after a dog said to belong to politician Ernest Ogesi Kivai bit him around 7am on August 9, 2009.

Mr Abwao had convinced a magistrate at the Maseno Law Courts that the fierce dog, which emerged from a hole and bit him on his right leg as he walked past Mr Kivai’s compound, belonged to the politician.

He had relied on the remarks by a man who rescued him from the dog on that day, who said the pet belonged to Mr Kivai and that he was a worker in the politician’s household.

The man would later deny providing such information.

ACCUSED

Mr Abwao accused Mr Kivai of failing to restrain the dog when he knew it was dangerous.

He also claimed that he failed to warn the public about the fierce nature of the canine.

The magistrate, at the end of the case, ordered Mr Kivai to pay Mr Abwao “general damages of Sh500,000 and special damages of Sh3,000”, according to the court record.

But when Mr Kivai made an appeal, tables turned.

TRASHED AWARD

“Mr Kivai testified that he did not own any dog and that his home has a concrete wall,” wrote Justice Muchelule.

In his determination, he said: “Mr Abwao’s evidence, I find, was insufficient basis for the finding that the dog that bit him belonged to Mr Kivai.”

He, thus, trashed the award and ordered that Mr Abwao pays for Mr Kivai’s court expenses.

According to Nairobi-based lawyer Elias Kibathi, to increase your chances of success in court, you should immediately report the dog bite to the nearest police station as it is a criminal offence to fail to take precautions against probable danger from an animal.

STATEMENTS

“You should also take statements from at least two witnesses who can identify the owner of the dog.

If possible, the statements can be in writing and signed. You should also obtain a medical report from a reputable doctor who is willing to testify on your behalf to the real and potential consequences of a dog bite,” he told the Nation.

In another case, Justice Jeanne Gacheche, who was axed from the Judiciary in 2012, reversed a Sh79,000 award that had been given to a worker who was bitten by a dog as he performed his duties in the compound of one of his bosses.

Mr John Mutuya Anyonyi was mauled by a dog on September 3, 1996, as he worked in the compound of one of his seniors at Eastern Produce Kenya Ltd in Kapsabet.

NEVER ESTABLISHED

He sued the company and in January 2001, a magistrate awarded him the Sh79,000 after finding the firm negligent.

But the company later appealed at the High Court in Eldoret.

The main contention was that the ownership of the dog was never established “and in the circumstances the company could not owe him a duty of care”.

“Though Mr Anyonyi blamed the company for the injuries so sustained, he was unable to prove that the dog belonged to the company,” wrote Justice Gacheche in her judgment of June 7, 2006.

NOT ALL GLOOM

“It also transpired during the hearing that the dog actually belonged to a third party, who, unfortunately, was not a party to the proceedings,” added the judge.

Mr Kibathi advises that where the injury occurs within the premises of the owner of the dog, it is wise to sue on the basis of the common law duty of occupiers to visitors.

But it is not all gloom for victims of dog bites.

In April, a man walked out of the High Court in Nairobi with an award of Sh406,800 after a judge found his employers negligent when they sent him to fetch their daughter from their house without restraining their dogs.

FIERCE DOGS

Mr Richard Kipkoech was employed by Iqbal and Norren Manji.

On September 27, 2006, he was to pick up their daughter and take her to the airport.

However, when he arrived at 5.30am, and before he could fetch keys to the car he was going to use, fierce dogs descended on him.

They caused injuries on his private parts, left leg, left wrist joint and the left chest and he had to stay in hospital for two days.

NEGLIGENT

High Court judge Mbogholi Msagha found Mr Kipkoech’s employers negligent.

“No special arrangement had been made to have the dogs kept away that night as Mr Kipkoech was due to arrive earlier than usual at the request of his employer. (Iqbal and Norren Manji) failed in their duty to make sure that Mr Kipkoech was safe when he performed those duties and, thereby, exposed him to danger,” he said.

But the judge also placed blame on Mr Kipkoech.

“There having been a notice of the presence of dogs in the compound, he should have waited for the ‘clear’ before getting into the compound,” he said.

SHARED BLAME

In the end, the judge said the couple had 90 per cent liability while Mr Kipkoech shouldered 10 per cent liability for the incident.

It is with those ratios that they could share Sh450,000 awarded in general damages and Sh2,000 in special damages.

Related to that, there is a case where a judge shared blame between the individual bitten and the owner of the dog that bit him.

Justice David Onyancha, in his verdict of December 21, 2012, endorsed a decision that Mr Joseph Waweru and Mr James Vernom had to share 50-50 the Sh30,000 awarded in damages despite the opposition by the former.

ESCORT

The court had heard that on September 3, 2005, Mr Waweru was transporting gunny bags from Mr Vernom’s compound after buying them.

Since the latter kept fierce dogs, each time he came with his wheelbarrow into the compound, he had to call someone to accompany him in.

He requested escort three times but on the fourth and last trip, he decided to enter the compound alone while pushing the wheelbarrow.

Canines in the compound then pounced on him and one bit his back.

He would later seek treatment that cost him Sh4,280 at Tigoni Hospital, which Mr Vernon refunded, even before the court case.

SHARE LIABILITY

The court said both should share liability because Mr Waweru “was negligent in entering Mr Vernom’s compound without escort while knowing well the danger he exposed himself to”.

On September 27, during the World Rabies Day, Dr Emily Mudoga of World Animal Protection called for humane treatment of the animals to ensure they are not aggressive.

“Just like humans, dogs have fundamental freedoms which, if violated, can lead to unusual aggression,” Dr Mudoga said in Makueni.

A study conducted between August 1 and October 31, 2009, by Jomo Kenyatta University of Agriculture and Technology Master’s student Kelly Auma Nelima, which focused on 207 cases of animal bites reported at the Kakamega Provincial General Hospital, showed that 58.1 per cent of patients bitten by dogs were males.

“Dog bites were highest in children below the age of 10 (33.8 per cent), with more males (64 per cent) being bitten in this age group than females,” wrote Ms Auma.

Judges do not award damages to victims due to lack of evidence showing those taken to court are owners of the canines.

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