Former Smoker Puts BAT in the Dock in Landmark Tobacco Lawsuit

Mr Amos Weru Murigu may be an ageing peasant farmer, but he is at the centre of a ground-breaking lawsuit which he has pursued doggedly for three years.

Mr Murigu's legal odyssey began in January 2003, when he filed a case against BAT (K) Limited following the loss of his left leg to a condition he claims was caused by years of smoking the company's cigarettes.

The High Court has directed that hearing dates be taken tomorrow for the matter to go to full trial.

Mr Murigu, 66, is from Ol Kalou in Nyandarua District, and now uses an artificial leg.

As the case dragged on, he never missed a session. Mentions and applications brought him to the High Court in Nairobi a least four times every month.

Been tempted

"I've been tempted to give up the fight, but every time I remember the pain I went through when my leg was amputated, I gather strength and courage to go on," he said.

"I come to court every time there is a mention or a hearing of an application. There have also been several adjournments, and I hope that tomorrow, my prayers will be answered and the main hearing can begin. I've become impoverished because the case has dragged on, and I'm no longer able to concentrate on farming. It's expensive to travel to Nairobi and back from Nyandarua and I've to borrow money from friends and relatives because I can no longer work," he said.

His lawyer Alex Ndungu told the Nation: "The case is now at the discovery stage, where we are to exchange the bundle of documents to enable the case go on full trial. We have presented our list of agreed issues.

"I've already sent his bundle to the defence. It includes Kenyatta National Hospital cards and medical records. I've also sent them a report from Prof Peter Odhiambo from the Free Medical Initiative of East Africa, as well as reports of laboratory tests done at KNH and other hospitals."

Argued in court

Among the issues to be argued in court are:

What are the causes of peripheral vascular disease?

Can cigarette smoking precipitate the occurrence of the disease in human beings?

What products did the plaintiff smoke and how did he procure this products?

How effective are the health warnings on cigarette packets?

Are cigarettes retailed singly at various points of sale in Kenya?

If yes, how did this impact on his smoking life?

Has BAT deliberately made efforts to enhance the marketing and social acceptability of smoking?

If yes, how did these efforts contribute to the plaintiff's smoking behaviour?

Can BAT be held legally culpable for consumption by the plaintiff of any products that it legally produces and markets?

Is the plaintiff entitled to general and aggravated damages?

The case will be the first tobacco related health suit in Kenya. It is the test case that could open a floodgate of similar claims.

Mr Murigu contends that he was diagnosed as suffering from peripheral vascular disease which resulted from high poison levels in his blood and gangrene - death and decay of tissue as a result of interrupted blood supply, disease and injury.

BAT is represented by Kimani Kiragu from Hamilton Harrison and Mathews which in its defence filed in February 2003 argues that the case was filed three years after the alleged damage was done.

BAT says that its products contain nicotine but denies that its products contain substances that are injurious to health when consumed at the levels found in cigarettes.

The company wants the case stuck stuck out as time barred in law. It is also asking for particulars of specific claims on how and when the disease was contracted and diagnosed and the advise that was given by the doctors.

The company also wants details of the brands Mr Murigu has been smoking since 1950 and how he acquired them as a teenager.

The multi-national company has also asked for specifics of the fraud claimed in the plaint and how he was misled by the advertisements.

If it goes to full trial and a ruling is delivered, the case will be the first of its kind in the legal history of Kenya. In Uganda, there was an attempt to file a similar case, but it never went to full trial.

But in the US, Britain and Australia, tobacco companies have been rocked by multi-million dollar awards in similar cases.