Nairobi — A petitioner seeking damages for violation of consumer rights after allegedly contracting a Sexually Transmitted Infection (STI) despite using a condom has been dismissed for lack of proof.
Justice Lawrence Mugambi said Williamson Nyakweba who filed the suit in 2018 did not prove that he indeed purchased condoms manufactured by Beta International and that his claim was indefensible.
"The claim that the petitioner's consumer rights were violated is thus clearly indefensible as the petitioner could neither prove purchase of the said condom nor the fact that he used it let alone the same being sub-standard," Justice Mugambi asserted in a ruling on Thursday.
While declining to grant Nyakweba a Sh500,000 award, Justice Mugambi termed the suit as unmerited and as such a claim on violation of rights under Article 43 (1) of the Constitution was unsustainable.
The court noted that the Kenya Bureau of Standards had proven that a batch of sub-standard condoms rejected in Uganda did not find their way to Kenya since proof of destruction as ordered by authorities in Uganda had been produced.
Mugambi also questioned the credibility of the petitioner having admitted to have been unfaithful to his wife.
"Can he be trusted without any other independent corroborative evidence? This is a man who admits that he is married. That notwithstanding, he says he cheated on his wife with several women (not one), in different towns in various counties," the judge noted.
"This is a man whose quality of honesty is already shaky. He was unfaithful to his own spouse. Can any court rely on the sole evidence of such character without corroboration?" Mugambi posed.
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The court further noted the petitioner failed to present the woman he allegedly had an affair with to give her account of events.
Substandard condoms
"There was no corroboration as the woman he had slept with when the condom allegedly burst did not testify."
Nyakweba had claimed that the said substandard condoms were irregularly distributed in the Kenya market and that he used the defective brand.
He told the court that upon contracting an STI in an extramarital affairs, his marriage was irreparably damaged.
Nyakweba told the court he used the Beta condoms on October 4, 2014 after attending a friend's wedding and learnt that he had difficulties passing urine a week later.
"On the dance floor, he got acquainted to a lady with whom he later got intimate that night. He used his favourite 'zoom scented chocolate flavoured studded condom' for protection and pleasure," court documents showed.
"However, after the sexual intercourse he discovered that the condom had broken during the act. At the moment he brushed off the issue and three days thereafter, he had sexual intercourse with his wife," Mugambi narrated.
Nyakweba reportedly fell ill on October 15, 2014 after unsuccessful attempt to self-medicate using traditional medicine.
He subsequently visited a clinic where he was diagnosed with an STI and put on treatment.
Nyakweba told the court that the breakdown of his marriage plunged him into depression and that he lost his job after becoming an alcoholic.
