March 2019

Human rights are an inalienable, inherent entitlement that all human beings have mealy by being human. It follows, therefore, that refugees as human beings, are entitled to human rights available under international law and national legal systems of the host country, except with respect to rights that are specifically spelt out to accrue to citizens only.         

The 1951 United Nations Convention Relating to the Status of Refugees, spells out various rights owed to refugees such as the right to non-discrimination provided under Article 3, right to access courts provided under Article 16 and many others.

The Convention,  defines a refugee as a person owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owning to such fear, is unwilling to avail himself for the protection of that country,  or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling to return to it.  

Kenya hosts a large asylum-seeking and refugee population.  This is due largely to the country’s location in a conflict-prone area.  For example, neighboring countries like Somalia and South Sudan have experienced civil wars that caused internal and external displacement of large groups of their population. 

Refugees in Kenya primarily reside in the Dadaab refugee complex (which is in Garissa County and consists of five camps: Dagahaley, Hagadere, Ifo, Ifo II, and Kambios) and the Kakuma Refugee Camp located in Turkana County.

Kenya is also a signatory to a number of international treaties applicable to individuals seeking asylum and protection.  For instance, it acceded to the 1951 United Nations Convention Relating to the Status of Refugees on May 16, 1966, and its 1967 Protocol in 1981. Kenya is also a state party to the 1969 African Union (AU) (formerly known as the Organization of African Unity, OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa, which it signed in September 1969 and ratified in June 1992. In addition, Kenya acceded to the 1984 Convention against Torture and Other Cruel, inhumane or Degrading Treatment or Punishment in February 1997.

In 2006, the country put in place a national legal framework governing refugee matters and assumed partial responsibility for the refugee status determination (RSD) process.  It did this when it took a step to implement its obligations under international law by enacting the Refugees Act in 2006, which took effect the next year, and its subsidiary legislation, the Refugees (Reception, Registration and Adjudication) Regulations, in 2009 (Refugees Regulations).

When a person is compelled to flee his country of origin or nationality his immediate concern is protection against refoulement (the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution). Such protection is necessary and at times, the only means of preventing further human rights violations hence the international community has recognized the principle of non-refoulement, which prohibits both rejection of a refugee at the frontier and expulsion after entry. This rule derives its existence and validity from the twin concepts of ‘international community’ and ‘common humanity’ and must be seen as an integral part of the foundation of freedom, justice and peace in the world which is human rights.

Legal basis for protection against forced return of refugees to countries where there is danger to their lives, safety, security and dignity can also be found in the law relating to the prohibition of torture and cruel or inhuman treatment.

Thus the principle of non-refoulement is well entrenched in conventional and customary international law.  Despite this, governments everywhere are adopting unilateral restrictive practices to prevent the entry of refugees and other forcibly displaced persons into their territories.

Refugees are intercepted on the High Seas and penalties have been imposed against airlines or shipping companies carrying suspected passengers. New concepts such as ‘temporary protection’ and the ‘safe third country rule’ which allow officials to eject people on flight who have already transited another state have been introduced.  Hundreds of thousands of refugees seeking shelter in the refugee camps have been demarcated in airports where physical presence does not amount to legal presence and where summary and arbitrary removal is permissible.

As refugee protection is an important dimension of human rights protection, unilateral restrictive practices adopted by both the developed and developing countries are inconsistent with their obligations under international refugee law and humanitarian law and constitute a serious violation of human rights.

Once a person fleeing persecution enters a state other than that of his origin or nationality, what he needs most is asylum.  Asylum is the protection which a State grants on its territory or in some other place under the control of its organs, to a person who comes to seek it.

Asylum is necessary not only for safeguarding the right to life, security and integrity but also for preventing other human rights violations.  Thus the grant of asylum in the case of refugees who constitute a unique category of human rights victims is an important aspect of human rights protection and should be considered in the light of the U.N. Charter as a general principle of international law and an elementary consideration of humanity. 

The deflection of responsibility by the North towards refugees, exacerbate the economic burdens of the South, which today hosts 90% of the total refugee problem which has also compelled many Southern States to emulate Northern non-entree practices.

In conclusion, it is safe to say that rights of refugees have presented themselves as rights which should be accorded special attention and consideration since no one leaves home unless home is the mouth of a shark. What is at stake is nothing less than the survival and well being of a generation of innocents.

When talking about refugee rights we are talking about human dignity and that should be done without borders. We have to understand first that no one puts their children in a boat unless the water is safer than the land.

Author – June Njoki

Donoghue v Stevenson [1932] A.C 562

When a partly decomposed snail was found in a bottle of ginger beer, it was held that the manufacturer of the drink owed a duty of care to the eventual consumer, and was therefore liable for her inconvenience and illness. This is known as the ‘neighbour’ principle (where it is foreseeable that a person will be affected by actions, then a duty of care is owed to that person). That is the case that is very famous and has been relied on in various cases against our soda bottlers with mostly successful outcomes for damage seekers. This House of Lords decision has been reviewed so much and is hailed as the mother of tort law as we know it today.

Lord Atkin articulated the principle in the following landmark legal pronouncement:The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Cases looked at ranged from those where duty required physical proximity to the person or property, to those that gave a wider interpretation to the proximity rule to apply to the case of goods supplied knowing that the user may not have a reasonable opportunity for inspection before use.

Lord Buchmaster also extensively  analysed common law cases which posited that except in the cases of fraud, duty of care must arise from existence of a contract. The exceptions to the rule  were as follows:

• an article dangerous in itself
• an article not dangerous in itself, but dangerous due to some defect or other reason known to the manufacturer.

 He also cited Lord Esher M.R in Heaven v Pender who summed up the position in various cases as follows:” wherever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger.”

He added that in absence of contract, the law would imply the duty.Again, Lord Atkin in arguing in the interest of social responsibility cited the following: “My Lords, I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilised society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.”

To bring the issue closer to digital era, we have to address situations that can possibly lead to harm in the course of interfacing: Exposing personal data received from a 3rd party (which information may in addition to that party, be from other parties connected to the same transaction), to unauthorised persons who might use it to harm that person, family or property. The example is financial institutions who may contract with one person, their client, but gather information about the guarantor, the spouse, the lawyer and a seller in a transaction. All these usually reveal National Identity card numbers, bank account details, phone numbers, Box Numbers and Tax Pin Certificates. This falls under the category of sensitive data as it can occasion loss and injury if the data is in the hands of criminals. The loss varies from identity theft to actual tracing and inflicting physical harm on the data subject or inflicting non material damage.

One of the causes of breach is negligence in handling Data. Negligence is the platform on which the neighbourhood principle was built and it is worth considering whether negligence in handling sensitive data leading to injury which can be termed foreseeable in this era will be the new tort.  Will the General Data Protection Regulations(GDPR) be the  new standard  of duty of care?

The neighbourhood principle was also applied to negligent misstatements.

Negligent Misstatement is a statement meant honestly but carelessly usually in the form of advice given by a party with special skill/ knowledge to a party that does not possess this skill or knowledge. This tort was discussed in the case of Hedley Byrne & Co. Ltd. vs Heller & Partners Ltd.[1964 ] A.C 465

Lord Morris had this to say: “if someone possessing special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise” (online source)

We are now faced with a barrage of opinions, advice and statements from online sources including authors who do not disclose their qualifications but claim careful inquiry leaving no doubt that whatever they post is a well sourced statement which should be relied upon. Statements range from business advice, educational tips, nutrition suggestions, etc. Whereas some put disclaimers along with the posts, others urge readers to follow the advice an example being whattsApp platforms.

In view of the obvious fact that more and more people are relying on those online statements which do sometimes occasion negative results, how can the public be protected?Just seen an example of such effects in a post from @thenasem (National academy of sciences engineering & medicine) stating that measles outbreaks in the US are being fueled by misinformation about safety of vaccines.We know for sure, misinformation on anything is spreading so fast due to the online conversations.

There is need to establish:

• Can a duty of care to the readers be inferred in certain circumstances?
• Can the harm suffered be traced back to the posted articles or statements? how?
• Who owes the duty, the website host?, whatsApp manager? the posting party or original author?
• Is there reasonable expectation that one can cause damage through online posts?
• Consider the outcry against social media when youths are entrapped by dangerous characters online.

This needs to be looked into to establish both the contractual online relationships and the non contractual ones whereby those we do not know from far away jurisdictions affect our every action including analysing our likes and dislikes and anticipating our reactions. We have a growing community of people whose interactions are predominantly with the online community.

So In this digital era, who in law is my neighbour?

Author – Gertrude Matata – Advocate / mediator

IS THE MYTH BEHIND THE SO CALLED “SMALL PRINT” REAL?

What to consider before you seek to enforce the insurance contract for Indemnity purposes.

The sole purpose of buying insurance is Risk transfer. Risk transfer is the mechanism by which financial consequences of an event are shifted from one party to another. Basically, the customer expects to be indemnified by the insurer in the event that he suffers a loss arising from an insured peril. Sadly, more often than not, the insured is dissatisfied with the indemnity provided by his insurer following a loss.What could be the root cause for this disharmony between the two parties when it comes to compensation? Is it just mistrust, ignorance or sheer misunderstanding? Or, is it possible that the insured does not even understand the rationale behind the term Indemnity?

Indemnity is defined as placing the insured in the same financial position after a loss as they occupied immediately before the loss. Note, the key words here, “financial position occupied immediately before the loss.”!Here is an illustration; A customer insures his laptop for a value of Kshs. 100,000/-. Unfortunately, he loses the laptop ten monthslatereither through theft or accidental damage. If it turns out that the replacement cost of a similar laptop or equivalent model at the time of the loss is lower, say Kshs 60,000/-, the insured would be paid not the sum insured but the replacement cost of Kshs. 60,000/. Consequently, by paying the replacement value of the lost item, the insurer has put the customer back to the financial position he occupied immediately before the loss.

The same logic would apply to a claim for a motor vehicle insured at a value of Kshs.500,000/- and subsequently lost through theft, fire or accidental damage. The fact is, unless the vehicle was insured on agreed value basis, the actual financial loss at that point in time would not be the full sum insured but the applicablemarket value of the vehicle or vehicle of similar make, age and mechanical condition. This means depreciation would be factored in to determine the actual financial loss.

Even though the objective of most policies is to provide indemnity, there are other scenarios when the insured does not get fully indemnified. The insured may get less than the full amount because of the limitations of the sum insured such as the policy limit, applicable excess, deductible and average clauses.It is therefore crucial to scrutinize all the applicable clauses, conditions and exclusions therein bearing in mind the fundamental principles of insurance such as utmost good faith, Insurable interest, full disclosure etc, before commencement of legal action.

Further, ensure to pursue the avenue provided for under the contract for dispute resolution; is it Mediation, Arbitration or Court Process?

Author; Wamuyu Waithaka – Partner GMW