A Kirinyaga-based holiday hotel has appealed a High Court award of Sh37 million to the widower of a US tourist killed by an elephant alongside her infant daughter eight years ago.
At the Court of Appeal in Nyeri, Castle Forest Lodge Limited wants the court to stop execution of the judgment dated June 22, 2018, pending hearing and determination of the appeal. The lodge is disputing Justice Jairus Ngaah’s decision to award Jeffrey Brown the money.
The judge found that the hotel was negligent in the circumstances that led to the death of the two. Jeffrey, wife Sharon Mary and their newborn daughter were having a nature walk in the forest on January 4, 2010 when they were attacked by an elephant.
The lodge is located in the southern slopes of Mt Kenya.
“The applicant stands to suffer substantial loss if the judgment is executed by Mr Brown. It would be difficult to recover the same if the appeal succeeds,” the lodge added through Kimani and Michuki Advocates.
The judge, the hotel noted, erred by finding and apportioning it liability for the tragic incident.
The director of the hotel, Melia Van Laar, while describing the hotel as small boutique and lodging, indicated that the judge failed or refused to consider adequately, or at all, the contents and merits of the hotel’s documents and submissions and judicial authorities.
“The sums awarded are extremely high and will completely cripple the hotel,” said Ms Van Laar.
She said the tourists were under control of a tour guide from the hotel. But the court found the hotel was in breach of a common duty of care.
The judge found that the tour guide who took the tourist deep inside the forest was not qualified to offer the services.
“This danger was inevitable and it eventually manifested itself when the purported guide literally led the hotel guests into an elephant’s habitation. It turned out to be a death trap,” Justice Ngaah stated in his judgment.
He said evidence of the hotel’s director, Ms Van Laar, led him to the conclusion that the hotel owed the responsibility of the safety of the tourist and his family the moment they were booked in the lodge. “It is apparent from her testimony that the hotel was all along cautious of its common duty of care towards its guests,” said the judge..