Can we sue for wrongful death?

I have done a lot of research on my family's behalf, and we all feel that my father was a victim of unethical practice that led to his untimely passing at only 58 years of age. We want to discuss our situation and hopefully pursue a favourable plan of action to give my father the proper justice that he deserves. Lord willing, all things will fall into place, and we will be able to find peace with the devastating experience that we have endured.

Responding to your question is almost looking for a needle in a giant haystack for someone who is short-sighted. It is vague. Two legal assumptions are made: first, is your 58-year-old father died in peculiar circumstances under the care of a professional mandated to save and not stop life: second, based on the mention of unethical practice in your text, it is assumed that the professional in the picture had their work cut out through some Standard Operating Procedure (SOP) that was known and must have been deliberately and grossly flouted. This disclaimer tethers the response to a general path that describes wrongful death, likely actions and remedies, if at all.

Wrongful death occurs when someone is killed because of another person's negligence or misconduct. In the context of law, this other person must be the person with a clear mandate to extend their care for the continuation of the victim's life. While death's aspect in such matters seems to call for criminal intent, the drive to find closure is civil. However, if there is proof beyond reasonable doubt that the act of negligence amounts to actus reus, then any reasonable prosecutor will form an opinion of mensrea. Mensrea means, a state of mind to commit a crime, while Actus reus is the overt act that facilitates the crime. It must be intentional, which in a case of death amounts to a claim of murder. If the intention turns out to be a mistake made in the line of work without intention to cease life, then a course of manslaughter is considered.

Wrongful death claims are brought against a defendant who has caused someone's death, either through negligence or as a result of some intentional action. The estate or those close to a deceased person, such as you, file a lawsuit against the party who is suspected to be legally liable for the death. Many different circumstances can give rise to wrongful death. This may include medical malpractice, motor vehicle accidents, manufacturing defects and sometimes death caused by mishandling of food in hotels or eateries. Each of these circumstances is guided by a statute, and a straight answer to your question is impossible to provide in that line.

Whatever your situation, the Constitution of Kenya under Article 22 (1) provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed or is threatened. Further, Article 22(2) states that in addition to a person acting in their own interest or that of others affected by the claim in place can proceed to court.

The basis of your claim is found in Article 26 (1) of the Constitution, where every and any person has a right to life: and 26 (3), which emphasises a right of a person not to be deprived of life intentionally, not unless commanded by the Constitution or any other applicable law in Kenya.

Suppose you are going to sue the person suspected of acting inappropriately leading to the death of your late father. In that case, the following should be proven before the court: first, a line of evidentiary presentation that the purported wrongful death was as a result of part or in whole by the carelessness, recklessness, or by the negligent actions of the defendant: secondly, you as the plaintiff, will have to convince the court that the person for whom you accuse, owed your late father duty of care, for which they failed to observe and deliver.

Duty of care is a legal obligation (that we all have) to take reasonable steps not to cause foreseeable harm to another person or their property. In a profession, it is found and driven by the sector-specific Standard Operating Procedures.

Third, there should be some reasonable connection of the act or inaction of the accused to the cause of death. The case of LWW (Suing as the Administrator of the estate of BMN) deceased v Charles Githinji, of 2019 confirms.

To round up, one needs to understand the damages that could accrue from a claim of wrongful death. The trajectory of claimants' compensation is based on the concept of likely benefits that would have accrued if the death was not occasioned.

Categories of losses for which a survivor might be able to receive compensation include the deceased person's pre-death pain and suffering, the medical treatment costs that the deceased victim incurred as a result of the injury before death, funeral and burial costs, loss of the deceased person's expected income, loss of any inheritance as a result of the death, value of the services that the deceased would have provided, loss of care, guidance, and nurturing that the deceased would have provided, loss of love and companionship.

Eric Mukoya is the Executive Director,  Undugu Society of Kenya. Do you have a legal problem you would like addressed by a lawyer? Please email your queries to [email protected]