By Sunday Memba
To determine whether a student of law is worth his salt, teachers of law usually seek to know if the student is familiar with certain elementary cases. Jurists call them locus classicus decisions. These cases include Donoghue v. Stevenson  UKHL 100, Carlill v. Carbolic Smoke Ball Company  1 QB 256 and Marbury v. Madison, 5 U.S. (1) 137 (1803). Away from these, Rylands v. Fletcher  UKHL 1 stands out as one of the most celebrated decisions from the House of Lords.
It is hard to imagine that the Supreme Court of Kenya can move away from listening to complex, mundane election petitions to deliberate on elementary principles on tort law. Happily, it does when chance presents itself.
In April 2018, the Supreme Court delivered its judgment in Petition No. 11 of 2015. This was an appeal by the Kenya Wildlife Service against the judgment in Kenya Wildlife Services v Rift Valley Agricultural Contractors Limited  eKLR at the Court of Appeal.
The facts of this case were straightforward. Wildlife from the Masai Mara Game reserve invaded the respondent’s 7,000-acre farm and destroyed crops that were ripe for harvesting.
The respondent suffered loss of profits due to the invasion. Both the High Court and the Court of Appeal decided in favour of the respondent and awarded damages of Sh31.5 million. Dissatisfied, KWS appealed to the Supreme Court.
One of the contentious matters for Supreme Court to determine was whether the rule in Rylands v Fletcher was applicable in the matter. The facts of the case of Ryland v Fletcher are thus: John Rylands, the appellant in the case employed an independent contractor to build a reservoir in his compound. After filling the reservoir with water, the water escaped through fissures in the ground and entered Thomas Fletcher’s compound. This resulted to damage estimated at £937. Fletcher argued that the defendant was liable under the tort of negligence. The House of Lords, with a majority, ruled in favour of the respondent.
Justice Blackburn of the Court of Exchequer Chamber famously stated, “We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
This has come to be accepted as the standard rule in Rylands v Fletcher. Notably, the supreme replicates the words of Justice Blackburn, some one hundred and fifty years later, since the locus classicus on strict liability was decided.
In this petition, the Supreme Court had to consider whether rule in Rylands v Fletcher was applicable. It also had to determine whether the appellant was negligent and whether the defence of an act of God was sufficient to relieve the respondents of liability.
In making its determination, the Court considered the grounds for a successful claim under the rule in Rylands v. Fletcher thus: one must first show that the defendant dealt with his land non-naturally; secondly, that the defendant brought something unto his land that was likely to cause mischief if it escaped at any time; thereafter, the plaintiff must prove that the thing brought into the land can actually escape; finally, the defendant must suffer damage as a result of the escape.
In this instance, the Court was of the opinion that wildlife does not constitute non-natural use of the land. Moreover, the Kenya Wildlife Service did not bring the wild animals to the Masai Mara Game Reserve but rather, they were found to exist there.
Furthermore, even though the wild animals escaped and caused damage to the crops of the defendant, the escape did not constitute unnatural use of land. Consequently, the rule in Rylands v Fletcher did not apply to the case at hand.
However, the court did not delve much into the recent developments in this rule, for instance, the element of foreseeability of harm, because the case did not satisfy the litmus test in Rylands v. Fletcher.
The court had to consider whether the principle in Donoghue v. Stevenson was applicable in this instance too. The respondents argued that this age-old code was, in principle, was applicable. In its reasoning, the Court was clear that the elements of the case at hand did not satisfy the test in Donoghue v. Stevenson – based on product liability, and which did not manifest itself in the debacle at hand.
In their submissions, the appellants raised the defence that the invasion by the wildlife constituted an act of God. In applying this principle, the Court noted that in proving that the invasion constituted an act of God, prove that the invasion and damage was as a result of natural causes; secondly, that it could not be foreseen by the appellants; third, that nothing but nature was the sole cause of the loss to the defendant; and, finally, prove that even though he exercised reasonable care, the respondents would still have suffered loss.
In determining whether the invasion could not be foreseen by the appellants, the court cited Myanna Dellinger’s article, An ‘Act of God’” Rethinking Contractual Impracticability in an Era of Anthropogenic Climate Change, (2016) Hasting Law Journal, Vol. 67. In her piece, she writes that one must show that the danger could not be averted by any human intervention because it was unexpected.
Only events that are extraordinary and unforeseen could meet this set threshold. Accordingly, the Court held that the migration of wildlife was predictable and did not satisfy the element of ‘act of God’.
Despite these findings, the Court upheld the decision of the Court of Appeal. Consequently, the appellant was liable for the loss and damages caused by the invasion of the wild animals to the respondent’s farm.
The appellants, the Court found, had a statutory duty under Section 3A(l) of the Wildlife (Conservation and Management) Act – which provides that the function of Kenya Wildlife Service include rendering services to the farming and ranching communities in Kenya necessary – to protect agriculture and animal husbandry against destruction by wildlife.
Although the Act does not provide a statutory remedy, the Supreme Court agreed that the respondent was liable under the tort of negligence, and was liable for the loss suffered by the respondents.