[Intl-tobacco] Kenya: After Losing a Leg to Smoking, Murigu Now Demands Justice

[Robert Weissman]

After Losing a Leg to Smoking, Murigu Now Demands Justice

The East African Standard (Nairobi)
NEWS
October 19, 2003
Posted to the web October 20, 2003

By Nyakundi Nyamboga
Nairobi

Amos Weru Murigu, 65, is now in the second year of what promises to be a
long and tumultuous journey in the quest for compensation for pain and
suffering occasioned him by cigarette smoking.

His leg had to be amputated, allegedly because of the effect of 40 years
of cigarette smoking. Last year, Murigu decided to use the courts to get
compensation from the manufacturers of the cigarette sticks he enjoyed
from as early as 1950.

Through lawyer Alex Karanja, Murigu he asked the High Court in November
2002 for orders allowing him to start legal action against cigarette
manufacturers, British America Tobacco (K) Limited.

His first hurdle was to convince the court that it was imperative that
he mounts a belated legal battle.

Murigu went to court after the limitation period for lodging a claim in
tort (civil wrongs) had lapsed. Procedurally and in accordance with the
Limitation of
Actions Act, he ought to have sued BAT within three years after he was
convinced he had a case against the them. He had smoked for over 40
years and
contracted peripheral vascular disease because of the poisonous
condition of the cigarette products he consumed, and which he claims BAT
put forth for
retail and indiscriminate sale.

His leg was amputated below the knee as a consequence of the disease in
September 1998. BAT lawyers argued that he could therefore have filed
his suit
without leave of the court if he had brought his action before September
2001.

Since he was appearing in court in 2002 to lodge a claim against BAT(
K), definitely out of time, he had to obtain leave to do so. High Court
Judge David
Rimita issued an ex parte order allowing him to sue BAT(K) for recovery
of general damages.

At that time, Justice Rimita, now suspended from the Bench, directed the
Murigu to file a claim against BAT( K) within 30 days.

Murigu filed a plaint on December 5, and later an amended plaint on
January 8, seeking judgment against BAT(K) for general damages for pain and
suffering, exemplary damages and costs.

According to the court paper, BAT( K) has for over 90 years carried out
business on manufacture and sale of various tobacco products and had been
trading as BAT (K) Ltd until 1998 when it changed its name to British
American Tobacco (K) Limited.

For the period they have been trading, they produced, marketed and sold
various cigarette brands, among them Sportsman, Ten Cent, Embassy Kings, Sc=
ore,
Embassy Mild, Nyota, SM (Sweet Menthol), Kingstock, Rooster and Crown
Bird.

The brands have been modified and changed while some have been phased
out and new ones have been introduced over time. Murigu, who says he starte=
d
smoking at the age of 12, claims he has faithfully smoked cigarettes
manufactured by BAT (K) Ltd.

He claims he purchased and consumed cigarettes manufactured by the
company in the intended manner and without changing anything in their condi=
tion.
Between 1950 and 1999 when he quit there have been Sportsman, Ten Cent,
Embassy Kings, Score, Embassy Mild, Nyota, Sweet Menthol, Kingstock,
Rooster and Crown Bird.

These cigarette products contained nicotine and tar, substances which
Murigu says are harmful to human health when consumed over a long
period.

Murigu claims that BAT sold and marketed the cigarettes knowing fully
well, or with the opportunity of knowing, that when the public,
particularly the
plaintiff, used the cigarettes, he would substantially suffer illness.
Throughout the period that he smoked, Murigu would largely purchase
cigarettes that
were retailed singly and not in a packet.

BAT (K) as manufacturers have a common law duty to make reasonable
efforts to remove any risk to life and limb, that may be inherent in the
design and
content of their products.

Murigu says through a fraudulent course of conduct that has spanned
decades, the defendants have manufactured, promoted and sold the
cigarettes brands
which they knew contained poisonous substances. He claims the
manufactures concealed the fact that the cigarettes contain a highly
addictive drug known
as nicotine.

Murigu alleges that BAT controlled and manipulated the amount of
nicotine in their cigarettes to create and sustain addiction. He says
the company
fraudulently concealed the fact that smoking cigarette causes addiction.

Prior to the mid 1980s, he adds, BAT were not labelling their cigarette
products with any health warning nor the contents of their products. He
says they
breached their duty in failing to warn him that smoking causes
peripheral vascular disease when it knew or ought to have known that
cigarette smoking
causes disease.

Murigu says he could not detect and had no reason to suspect the hidden
presence of nicotine and tar in the cigarettes and of their injurious
effect to his
health. He says BAT denied consumers, particularly himself, the accurate
information on the health risks of smoking its products.

Additionally, BAT is accused of

l Withholding, misleading and deceiving the consumer about the dangers
of cigarettes, thereby depriving them of an opportunity to make a free but
informed decision whether to smoke or not, how much to smoke and how
difficult quitting smoking might be.

l Knowingly distributing cigarette products which they knew or ought to
have known were harmful to human health.

l Engaging in vigorous marketing and advertising campaigns that obscure
the consumers ability particularly that of the plaintiff to appreciate
the risk of
smoking.

lFailing to warn that nicotine is addictive.

l Failing to disclose that smoking once began is no longer a free
choice.

l Failing to disclose the dangers they knew or ought to have known about
smoking.

l Failing to warn the consumers and plaintiff in particular when they
knew or ought to have known that the physiological need for nicotine
coupled with
psychological and behavioural need related to smoking lead to addiction.

l Denying the plaintiff of his right to know the compounds he was
inhaling as contained in the cigarette smoked.

l Designing and marketing his cigarette in a way that make quitting
smoking difficult.

l Failing to label cigarette packages with adequate messages that
display the nature of the product.

l Failing to put the warning on the actual cigarette stick when they
know that cigarette are dispensed both in packets and singularly.

l Making implicit health claims minimising the harmfulness of cigarettes
by branding their products as light and mild.

l Failure to disclose the tar and nicotine yields on their products when
they know or ought to have known that it impacts on consumption.

l Deflecting attention from the dangers inherent in the use of cigarette
through advertising and promotion campaigns.

Murigu says because of his consumption for a long time of the
defendant's cigarettes, he contracted arterio-occlusive disease
(peripheral vascular disease).

This led to the development of gangrene in his left leg and the limb was
eventually amputated. He says he has suffered loss and damage, and in parti=
cular
his leg was amputated.

He says he is in pain and his toes on the phantom limb hurt. Murigu has
sought to have BAT answer certain questions pending the hearing of his suit
against it.

He is now awaiting a decision on an application he made on Friday before
prosecuting his suit . He sought court orders compelling BAT area
director for
East Africa, Chris Burrel, to answer questions arising from views he
expressed in a newspaper article last year.

Some of Burrel's views in the article are that BAT was investing heavily
in research to design less harmful cigarettes and that it was aspiring
to design
potentially reduced exposure products in which harmful constituents can
be removed.

Through lawyer Alex Karanja, Murigu told a senior deputy registrar of
the High Court , Mr Martin Muya, that he wanted the queries answered
before he
proceeds with his suit. However, lawyer M Kirimi for BAT, has opposed
the application to have Burrel compelled to answer queries. She said the de=
mand
that Burrel answers questions before the main trial was misconceived and
bad in law.

The lawyer also denied that Burrel was a director in BAT(K) Ltd and
urged the court to dismiss the application. Muya will rule on the matter
on October
31.

Copyright =A9 2003 The East African Standard. All rights reserved.
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