Benjamin Mbatia
20 August 2007
Nairobi — Wendy Martin v Il Ngwesi Company Ltd & two others High Court of Kenya in Nairobi Lady Justice Mary Ang'awa presiding, June 11, 2007.
Wendy Martin, the plaintiff, is a resident of England. In 2000 she was in Kenya because her husband then was employed as a diplomat and had just reached the tail-end of his contract. She sued the three defendants being Il Ngwesi Co. Ltd, Lewa Wildlife Conservancy and Ian Craig in tort for injuries sustained as a result of being attacked by a rogue elephant.
Wendy Martin together with her husband and children had driven with a convoy of other couples and their children to a remote lodge known as Il Ngwesi Lodge. This was to be the family's last safari in Kenya before leaving for England.
The six adults and 10 children arrived at about 4pm. They were greeted by the staff and their luggage off loaded. The manager was James Ole Kinyaga.
At dinner that evening, Mr Kinyaga joined the group after the food was served. He engaged the group in a conversation and went on to speak of the famous "marathon" held each year at Lewa Downs.
Mr Kinyaga volunteered information on how he and the staff take part in the marathon and how he had a brother who participated in the Boston Marathon.
A question arose and was put to Mr Kinyanga whether it was possible to have a "run" in this bush as was done on previous visits.
The agreement was that a guide would be available at 7am and he would meet with them.
The following morning, the plaintiff went to the main lounge and there found one J. Brown talking to the guide who was dressed in a red shuka.
Jenny (defence witness 2) arrived soon after. The lodge is situated on a raised area with a circular parking at the bottom. They proceeded down the staircase and began to run.
The guide was in the lead, then J. Brown with the plaintiff and Jenny following. They had ran for 15 to 20 minutes when the guide increased his pace. The plaintiff got tired and wanted to turn back. The two women called the guide and J. Brown. They retraced their steps and started back to the lodge.
The run back lasted 10 minutes before the guide screamed "stop". All three stopped. An elephant appeared in the bush in front of them. It was trumpeting loudly. The guide then screamed "run".
He gave no indication in which direction the parties should run. The plaintiff ran. She remembers falling down. She was unable to outrun the elephant. She went under a bush. The elephant caught up with her and pushed her on the ground for some distance.
Its tusks went into her body with the full weight of it on her. It crushed her, when lifted her up and landed heavily on the ground on her. Twice she felt the tusks go through her torso. Twice through her right leg. The other tusk went through her back and through her leg. Her pelvis was crushed. She was dragged for a distance.
She lay on the ground with J. Brown by her side. Jenny came and she was able, from her medical knowledge, to tell Jenny to keep her warm to counteract the effects of shock.
The plaintiff was a physiotherapist and was going to open up her own practice in England.
The crowd that gathered around removed their shukas to cover her. She did not lose consciousness. She instructed that her legs be kept together and suggested a door be used as a stretcher.
A plane arrived, piloted by Mr Ian Craig. A nurse was at hand. She was airlifted to the nearest hospital where the doctors recommended immediate help be sought in Nairobi. She was airlifted to Nairobi and was admitted to the Nairobi Hospital. When she stabilised she was further airlifted to England, where she recovered.
By the time she came to court to give evidence she had undergone 15 to 21 operations. She gave evidence while standing in the witness box but fainted in court. This was caused, she said, by the pain in her back and legs.
According to her evidence, she came to know the guide as "Kip" (Jonathan Kipkorir Nteeme). All along, she was under the impression that Il Ngwesi and the Lewa Conservancy were one and the same organisation.
The brochures and publication produced show how Mr Craig and Lewa Conservancy were instrumental in the day to day management of Il Ngwesi.
In response, Mr Craig denied that there was any link between I Ngwesi and Lewa Conservancy. The Lewa Downs had original been a livestock farm. It went into conservation of wild animals, having various activities. The Lewa Conservancy was created to coordinate promotion of wildlife conservation beyond its boundaries. Education, water project, and a marathon are undertaken to assist in fundraising.
Mr Craig admitted that apart from being a director of both organisations, he was an honorary member of the Kenya Wildlife Service (KWS), a police reservist and a pilot. In his capacity as a director, he attends Il Ngwesi board meetings.
On the material day, June 2, 2000, he received information that there had been an accident. He got into his plane together with a nurse and proceeded to the site. First Aid was administered upon the plaintiff and she was loaded onto the aircraft. She was flown to a nearby clinic/hospital but was referred to Nairobi. He stated that at no time was he aware that there was a bush run. His mission was purely to assist the injured guest, he said.
As a game warder he wrote to the chief executive of KWS Mr Rotich and notified him of the accident. Though he had not initially talked to the staff who were within the vicinity of the accident, he did assume that the elephant that attacked Wendy was a female with a calf.
Since he spoke to the staff, the system had changed, with a strict rule that no one was to leave the lodge on foot unless accompanied by an armed guard.
Employed as a waiter
Kip gave evidence and stated that he was actually employed as a waiter. He noticed the guest start to run off. He was alarmed and did not want them to go on their own. He pursued them to ensure they were safe. On the way back they were attacked by an elephant. He clapped his hands together to scare the elephant. It was persistent. The elephant attacked the plaintiff and caused her injury. He denied that he was a guide or that the run was planned.
Mr Kinyaga stated that the plaintiff had been rude and difficult from the time she arrived at the lodge. He denied that he organised the run. He said he had a conversation over supper on the activities of the next day, which did not include running.
The court on its part held that the plaintiff was owed a duty of care concerning her safety while inside the Il Ngwesi Lodge and its compound by the defendants.
That this duty was owed by virtue of Section 3 of the Occupier's Liability Act (Cap 34 Laws of Kenya), and the defendants were not relieved of the liability under the Wildlife (Conservation and Management Act (Cap. 376).
Consequently, the Defendants were 100 per cent liable for the injuries sustained by the plaintiff Wendy Martin.
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