It is now common knowledge for those who care to read that Nairobi County Government Public Health Department has not been supervising hotels for over a year now as required by law.
This has led to many people falling ill especially through H-Pylori, amoeba and other stomach diseases.
One such person who has falling ill due to this careless omission is the daughter to Nyali MP Mohamed Ali. The MP today took to Social media to call out America-headquartered KFC restaurant Hurlingham Branch.
‘There is something wrong with KFC food especially in Hurlingham, Shell Petrol Station. Kindly stop selling bad food to your clients. My daughter is going through hell because of you’, Mohamed Ali wrote
KFC, which is locally owned By Kuku Foods East Africa, had not responded to Mr Ali’s tweet by the time we went to press.
Option of suing
One can sue a restaurant that has sold them food that has caused them to become ill.
What is food poisoning?
Food poisoning is an illness caused by food contaminated with bacteria, viruses, parasites or toxins.
It usually manifests itself with painful stomach, weak joints, tingling and pain, feeling hot and sweaty.
It is not the best feeling and at worst it can lead to death.
Ideally, restaurants are supposed to be certified by health officials to be clean and workers able to properly handle foodstuffs.
However, in the case of Nairobi, it was revealed that City Hall hasn’t evaluated food handlers for over a year.
Question is, how can one go about suing a restaurant for food poisoning?
Realistically, it can be difficult to prove that food from a particular restaurant caused food poisoning. It becomes harder if a lot of time has passed from the time you had the meal to the time you are taken ill because of causation
However, digestion takes three hours and if one is observant enough they can note when the symptoms start would be a good place to begin.
Another way to get ahead of the situation is by being diligent enough to have kept leftovers of the food, which will be the evidence presented in court after testing that the food was indeed contaminated.
However, there’s still a problem in the above.
The restaurant can claim in court that it is you who contaminated their food after it left the premises.
However, you have a better shot at a successful suit if you’re not the only one who was affected or if you’re lucky in some cases, a product recall or a health agency warning may be issued greatly favouring your claim.
In this case, a class action suit – which is a suit instituted by many people affected by the same issue and arising from a similar set of facts or a similar series of events.
A lawyer advises that one can sue under the tort, specifically the tort of negligence.
You would need to prove three key ingredients: that you were owed a duty of care; that the duty of care was breached, and that as a result, you suffered harm or injury.
Historical Jurisprudence
There was a case in United Kingdom (UK) in 1932 of Donoghue Versus Stevenson. In this case, the plaintiff, Mrs Donoghue, found a snail in an opaque bottle of ginger ale beer after she had drunk half the content.
Judge Atkin, who ruled in her favour, set a precedent in law-making the moral rule “love your neighbour…” into law.
Further, he settled the question of who a neighbour is in law, a person closely and directly affected by your actions enough to be affected by your acts or omissions.
Apart from the existence of a duty of care owed to you, the burden lies with you after claiming to be poisoned to further prove that the food eaten was contaminated and that that contamination caused your illness.
Has anyone ever succeeded in a food poisoning case in Kenya though?
“In Kenya, the hallmark case on poisoning is Kenya Breweries Limited versus Godfrey Odoyo (2005). In this case, Mr Odoyo fell sick after consuming two of the three Tusker Malt Lager beer he had bought at a local bar in Mathare. He was successful and awarded Sh70,000 in general damages and Sh21,990 for pain and suffering”.
Liability
“In a food poisoning claim, all parties involved in the chain of distribution can be held liable,”
This includes manufacturers, retailers, the local authorities and all other stakeholders involved.
According to the lawyer, a restaurant owes you a duty to deliver well-cooked food handled under hygienic conditions.
Your local supermarket owes you a duty to reasonably ensure consumable products they sell are safe for consumption.
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