Last week, my children were attacked by my landlord's dog. Fortunately, they escaped unharmed. We have complained about the dog repeatedly but nothing gets done, not even putting it on a leash. Should we sue the landlord?
The Constitution of Kenya grants every individual the right to bring a matter before a court or a relevant and competent body to address their concerns. In the same way, a person who is being sued has the right to respond to the lawsuit.
They can either accept responsibility for the alleged offense or challenge it to assert their innocence. According to Article 22, Clause (1), every person has the right to initiate court proceedings if they believe that their rights or fundamental freedoms, as outlined in the Bill of Rights, have been denied, violated, infringed upon, or are at risk of being threatened. This raises the question: what right or freedom could potentially be threatened, violated, or infringed by another person's dog?
Several rights and freedoms may be considered endangered. First, the right to move freely without fear or feelings of inadequacy is essential. Secondly, the right to safety, as outlined in Article 29 of the Constitution, is crucial.
There is a legal assumption that anyone who chooses to keep a domesticated animal should understand that it may exhibit wild behaviour. The Animal Welfare Act states that owning an animal is not a right but a privilege that comes with the responsibility of care and humane treatment. This responsibility raises the issue of negligence in the care of these animals.
When negligence is framed in terms of criminal offenses, as discussed previously in this column, it must be proven beyond a reasonable doubt. Negligence has three fundamental characteristics that must convince a judicial or adjudicating officer that the owners of an animal failed to meet a reasonable standard of care to protect others.
The dog owner should be seen as having a duty of care toward their neighbours and other members of the public. The court must recognise and appreciate that this duty of care was breached, leading to foreseeable harm.
Lastly, courts serve as instruments of justice, so they cannot condemn a person without considering whether a reasonable person would have acted similarly as the accused dog owner. The "reasonable person" test is a legal benchmark used by judges and magistrates to evaluate whether an individual exercised the level of care that an ordinary, prudent member of society would have demonstrated.
For the Court to rely on Section 243(d) in conjunction with Section 36 of the Penal Code, as well as other relevant legislation in Kenya, several requirements for dog ownership must be carefully examined in the context of the term "care."
When defining "care," the Court may reference specific statutes, including the Animal Control and Welfare Act and the Public Health Act, along with county-specific laws that likely impose certain requirements on both current and potential dog owners.
Foremost, the court may have to determine whether the dog owner is licensed to keep the animal in the area where the alleged misconduct occurred. Licensing requirement is likely part of the county laws, and purposes to identify the dog owner and, more importantly, ensures that proper public health measures—such as vaccinations against dangerous diseases like rabies—are implemented.
Upon closer examination, given the claim of an attack, the Court may need to determine whether the dog was restrained, confined, or contained to limit its movement. Evidence of this could include a compromised leash either on the dog's collar or within its kennel.
Furthermore, the Court may investigate whether the dog originated from a fenced property, taking into account any warning signs that indicate a minimum level of care for the public.
Various courts have attempted to contextualize issues related to dog bites or attacks. In the Civil Appeal E052 of 2022, involving China Quinjian International Group v. Kariuki, the judgment delivered on 30 November 2023 noted that the appellant, despite being aware of the fierce nature of the dogs on the premises, failed to prevent them from harming visitors. In an earlier case, Moses Thuo v. Joseph Ojuang (2017), the Court concluded that a duty of care had been breached, as there was a foreseeable risk of harm given the known ferocity of the dogs.
In the spirit of neighbourliness, there is an opportunity for a constructive conversation that the court may not offer, especially since you mentioned that no harm occurred from the dog attack.
According to Article 159, Clause 2, paragraph (c), it would be wise to engage with the dog owner through an alternative dispute resolution mechanism to address the potential dangers posed by their dog.
