Sevenways, is a respected upper class residential complex in the so-called leafy surbubs of Nairobi. Kamau, an up-and-coming lawyer in Nairobi, was happy to buy a home for his family in this prestigious neighbourhood. As a stickler for the rules, Kamau ensured that a Certificate of Occupancy, a legal requirement, was issued by the County Government of Nairobi declaring that the building of his house met all the requirements in terms of safety. Kamau's son, Mwiti, an erstwhile bubblish eleven-year-old boy was about to sit the Grade 6 Kenya Primary School Education Assessment (KPSEA) national examinations. A few weeks to the examination Mwiti developed odd symptoms. He had trouble waking up, was infinitely fatigued, and had laboured breathing. During class hours, his teacher noticed that Mwiti would space out and doze, whereas he was previously the most active in class. Kamau took Mwiti to see Dr Wafula, a consultant pediatrician based at the Maga Kan University Hospital (MAKUH) in Nairobi, who had been Mwiti's physician since birth and therefore well placed to diagnose the problem. After some tests and examination, Dr Wafula give his diagnosis, indicating that Mwiti had contracted Chronic Obstructive Pulmonary Disorder (COPD), a severe lung disease.

Tests by Dr Wafula suggested that Mwiti may have been exposed to toxic mold with the main culprit identified as aspergillus a mold commonly found in damp walls, and bathrooms. Kamau immediately contacted the Sevenways Estate Management Company, who responded that since they were not the developers, Kamau is responsible for fixing the problem in his home. Kamau then contracted Juma, an experienced contractor who stripped down the walls in Mwiti's bedroom and the adjacent bathroom. Juma found significant evidence of mold, which upon testing was found to be aspergillus. The mold, it would appear, was traceable to a choice of cheap plumbing by the Sevenways developer, Paraya PLC, which had broken under pressure from hot water, and leaked continuously for a long period but the damage was concealed by ceramic tiles, and a clothes cabinet. It is now known that Mwalimu, a Director at Paraya PLC, had repeatedly bribed Kubai, the County Government Inspector that issued the Certificate of Occupancy.

It has cost Kamau a pretty penny to fix this damage to this house. His medical insurance has also written to him that Mwiti's illness falls within an exclusion clause and Kamau has to meet the long-term cost of treatment, expected to last years and cost millions of shillings. Mwiti missed his KPSEA examinations, and for catch up, Kamau has to hire private tutors at home, as Mwiti remains unfit to return physically to class, especially because he requires an oxygen tank at all times. A fulltime nurse has therefore been hired.

Kamau has come to you law firm seeking legal advice evaluating the likelihood of a claim in negligence against Paraya PLC. (30 Marks)

Question 2

Upon receiving a legal claim from Kamau's lawyers, Paraya PLC has written back arguing that

(a) the warranty period had already expired, and

(b) that they built using specifications provided by the Kenya Building Code at the time; a fact the Kamau's lawyers have verified. However, it was always known that the Building Code was outdated, and Paraya PLC had received professional advice to alter the plumbing specifications but chose to disregard.

On behalf of Paraya PLC, assuming all other elements of negligence haven proven, and based on the facts set out in Question and 2, evaluate arguments they can make concerning remoteness of damages. (20 Marks)

NOTE: This Question relies on facts from the Compulsory Question reproduced again below for your convenience:

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QUESTION 1 FACTS REPRODUCED HERE FOR YOUR CONVENIENCE AS THEY ARE REQUIRED TO ANSWER QUESTION 2.

Sevenways, is a respected upper class residential complex in the so-called leafy surbubs of Nairobi. Kamau, an up-and-coming lawyer in Nairobi, was happy to buy a home for his family in this prestigious neighbourhood. As a stickler for the rules, Kamau ensured that a Certificate of Occupancy, a legal requirement, was issued by the County Government of Nairobi declaring that the building of his house met all the requirements in terms of safety. Kamau's son, Mwiti, an erstwhile bubblish eleven-year-old boy was about to sit the Grade 6 Kenya Primary School Education Assessment (KPSEA) national examinations. A few weeks to the examination Mwiti developed odd symptoms. He had trouble waking up, was infinitely fatigued, and had laboured breathing. During class hours, his teacher noticed that Mwiti would space out and doze, whereas he was previously the most active in class. Kamau took Mwiti to see Dr Wafula, a consultant pediatrician based at the Maga Kan University Hospital (MAKUH) in Nairobi, who had been Mwiti's physician since birth and therefore well placed to diagnose the problem. After some tests and examination, Dr Wafula give his diagnosis, indicating that Mwiti had contracted Chronic Obstructive Pulmonary Disorder (COPD), a severe lung disease.

Tests by Dr Wafula suggested that Mwiti may have been exposed to toxic mold with the main culprit identified as aspergillus a mold commonly found in damp walls, and bathrooms. Kamau immediately contacted the Sevenways Estate Management Company, who responded that since they were not the developers, Kamau is responsible for fixing the problem in his home. Kamau then contracted Juma, an experienced contractor who stripped down the walls in Mwiti's bedroom and the adjacent bathroom. Juma found significant evidence of mold, which upon testing was found to be aspergillus. The mold, it would appear, was traceable to a choice of cheap plumbing by the Sevenways developer, Paraya PLC, which had broken under pressure from hot water, and leaked continuously for a long period but the damage was concealed by ceramic tiles, and a clothes cabinet. It is now known that Mwalimu, a Director at Paraya PLC, had repeatedly bribed Kubai, the County Government Inspector that issued the Certificate of Occupancy.

It has cost Kamau a pretty penny to fix this damage to this house. His medical insurance has also written to him that Mwiti's illness falls within an exclusion clause and Kamau has to meet the long-term cost of treatment, expected to last years and cost millions of shillings. Mwiti missed his KPSEA examinations, and for catch up, Kamau has to hire private tutors at home, as Mwiti remains unfit to return physically to class, especially because he requires an oxygen tank at all times. A fulltime nurse has therefore been hired.

Question 3

Mwiti's COPD disease has been the source of consternation for pediatric consultant physicians at the Maga Kan University Hospital (MAKUH) in Nairobi. Initially, Dr Wafula believed that the mold was solely to blame for Mwiti's infection. But treatment has not been working effectively, prompting further investigations. A new consultant physician with expertise on epidemiology has insisted on revisiting patient history through a questionnaire. This questionnaire, recently approved by the MAKUH Board of Trustees, in more comprehensive than what Dr Wafula has used to collect Mwiti's patient history twelve (12) months before. The legal problem is that the new questionnaire has been in fairly wide use in Kenyan hospitals, and it remains unclear why MAKUH had delayed in approving its use. Kamau has now filed a new negligence claim again MAKUH arguing that their decision not to approve the advanced questionnaire has caused Mwiti's COPD to advance to debilitating levels on acute of wrong treatment.

Assuming that duty of care; and the breach of that duty has been established with respect to MAKUH, assess the legal element of causation for Kamau. (20 MARKS)

_ NOTE: This Question relies on facts from the Compulsory Question reproduced again below for your convenience:

Answer rating: 100% (QA)

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