🚨 When Floods Strike: The Legal Rule That May Decide Who Pays

Recently, flash floods have swept through various parts of Kenya, leaving cars submerged, roads blocked, and livelihoods disrupted.

If you’ve ever looked at your damaged car and thought, “Who’s responsible for this?”, the answer may lie in something called force majeure.

What is Force Majeure?

In contracts and law, force majeure refers to events that are unforeseeable, unavoidable, and beyond the control of the parties involved. Think natural disasters like, floods, earthquakes, hurricanes, or man-made crises like wars or riots.

The idea behind the clause is simple: the law does not punish people for failing to do the impossible. If a party cannot perform their contractual obligations because of a disaster beyond their control, a force majeure clause may excuse that failure or delay.

When Nature Interrupts Contracts

Imagine a car rental agreement, a delivery contract, or even a construction project. Each party has obligations: deliver the vehicle, transport goods, complete a building. Now imagine a flash flood suddenly making roads impassable or destroying the equipment required to perform the contract.

In such cases, a force majeure clause may allow the affected party to say:

“This event was beyond my control, and it made performance impossible.”

The clause may temporarily suspend obligations, extend deadlines, or in extreme cases allow termination of the contract.

But Force Majeure Is Not a Free Pass

A force majeure clause does not automatically eliminate all responsibility. Several questions usually arise:

• Was the event truly unforeseeable?

• Could the damage have been prevented with reasonable precautions?

• Did the affected party act reasonably after the event occurred?

For example, if a vehicle was knowingly parked in a known flood channel during heavy rain warnings, an insurer or court might question whether the loss was entirely unavoidable.

The Insurance Angle

For vehicle owners, the practical issue is often insurance coverage rather than contract law. Most basic motor insurance policies cover:

• accidents

• third-party liability

But flood damage is usually only covered under comprehensive insurance policies. This means two people whose cars were damaged in the same flood may have very different outcomes depending on their policy terms.

A Lesson From Every Flood

Natural disasters remind us of an uncomfortable truth: the law cannot control nature.

What the law can do is provide frameworks, like force majeure, that help society deal with the legal consequences when the unexpected happens. But the real protection often lies in good planning, careful contracting, and proper insurance coverage.

Because while flash floods may be unpredictable, being legally prepared should never be.

Written by Winnie Tsuma

Advocate of the High Court

Managing Partner, Tsuma and Associates Advocates.