The Law on Negligence in Kenya. Law Assignment. (Coursework Sample)

The Law on Negligence in Kenya
Introduction
Negligence as a tort is branch of legal duty to take care which results into damage to the claimant. Negligence can also be said to be an action that falls below the behavior established by law for protection of others against unreasonable risk of harm. A person is deemed to have acted negligently if that person departs from the conduct expected of a reasonable prudent person under similar circumstance.[Winfield & Jolowicz Tort pg. 132.]
Negligence can also be said to be the omission to do something which a reasonable man, guided upon those conditions which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do.
To succeed in negligence action the plaintiff must prove three elements; that the defendant owed him a duty of care; that the defendant was in breach of that duty; and that the plaintiff suffered damage caused by the breach of that duty, which was not too remote. These three elements are simply three different ways of looking at the same problem. Because the concept of foreseeability plays a part in all these three elements, they cannot be kept apart.[Winfield & Jolowicz Tort pg.132.]
Duty of Care
It is a question of law whether in any particular circumstances a duty of care exists. The general criterion for establishing the existence of the proximity which would give rise to a duty of care is by using the neighbor principle. The neighbor principle was profoundly articulated by Lord Atkins in Donoghue v Stevenson in the following words:[]
[…] in English law there is, some general conception of relations giving rise to a duty of care. The liability for negligence is based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. Therefore one must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Therefore a neighbor is a person 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.