Abdalla, the proprietor of Hesabu House, place a warning sign outside the entrance of the building that the floors of the premises were slippery. Makanyanga who was in a hurry to attend tuition classes did not see the notice. As Makanyanga was rushing to class, he slipped, fell and fractured his hand. He now seeks compensation from Abdalla.
Discuss the legal position of both parties. (12 marks)
ANSWER
This problem is based on the provisions of Occupier’s Liability Act, Cap 37 Laws of Kenya. Under the provisions of this Act, an occupier owes all his visitors and invitees a common duty of care i.e. the duty to take such care as in all the circumstances of the case is reasonable to see the visitor is reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. In this case Abdallah is the occupier and owes all his visitors a common duty of care. However, under the provisions of the Act, an occupier escapes liability by showing that he had given sufficient or adequate warning of the danger. In this case Abdallah had placed a warning sign outside the entrance of the building. The facts do not tell us whether the sign was conspicuously displayed and was thus sufficient. It is our submission that displaying a sign that the floors are slippery without anything more is an inadequate warming. In our view Abdallah cannot escape blame. On the other hand Makanyanga was in hurry to attend class and did not see the notice. Perhaps this is an indication that it was not conspicuously displayed. The fact that he was rushing is therefore of no consequence and Abdallah is liable for the loss arising.