Kampala Capital City Authority (KCCA) has been ordered to pay Shs123.9 million to the family of Olive Basemera, a street vendor, who drowned in the Nakivubo channel in 2017 as she was being pursued by the authority’s law enforcement officers.
On August 4, 2017, Basemera was walking along Mukwano Road with her goods when KCCA enforcement officers began chasing people they believed to be hawkers.
Out of fear for her life and her property, she ran and fell into the Nakivubo channel near the railway crossing.
The family of Basemera, which sued KCCA, said the officers then simply watched as she drowned.
It also argued that KCCA had failed in its duty to cover or protect open drainage channels. She left behind three children and three other dependants.
In court, KCCA denied the claims, saying its team had carried out a trade order operation that day and taken impounded items to its stores at Nakawa.
On the way back, it said the officers had no contact with anyone until they stopped at the Jinja Road traffic lights, where vendors, including Basemera, took to their heels to avoid arrest. KCCA said its officers only later learnt that Basemera had drowned.
KCCA said she had caused her own death through her own negligence.
The family was represented by Jude Byamukama, who argued that the KCCA Act makes the authority responsible for building and maintaining major drains.
He said this meant covering drains, marking them properly and putting up guard rails. He also pointed to a police report that said KCCA officers had chased the vendors.
KCCA’s lawyers from its legal department argued that none of Basemera’s family members was at the scene, so their evidence was hearsay.
The lawyers also argued that even if officers had tried to arrest her, she should have surrendered instead of fleeing into hazardous circumstances.
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Justice Boniface Wamala, who heard the case, began by interrogating the evidence presented by both sides.
Wamala noted that the family’s two witnesses, Patrick Kugonza and Rose Nalujja, had not seen what happened. Their evidence, he said, consists of what they heard from other persons and saw on television.
Justice Wamala therefore found that the family had not proved that officers chased her. He believed KCCA’s witness, Mpiima Farouk, a law enforcement assistant, who said the vendors scattered when the officers’ vehicle stopped at the traffic lights.
“In the process, the deceased fell in the open drainage channel,” he ruled.
However, he said it was not disputed that heavy rains regularly made water overflow the channel and flood the roads. He said it was therefore foreseeable that a person moving along the road could easily mistake the drainage channel for the road.
KCCA could have done more, Justice Wamala said, “through building guard rails across drainage crossings or along the drainage way; sensitizing the public about flash floods; and I could add, placing signposts in unguarded areas.”
KCCA had claimed that guard rails were once installed but were broken and stolen, but the judge was not moved.
“A statutory authority cannot explain breach of its duty by indicating that protective measures were installed and illegally removed with no proof of alternative efforts taken,” he said.
He said open channels might be allowed internationally, but the practice cannot and should not permit unguarded open drainage channels in an environment where flash floods occur.
Justice Wamala also found that Basemera knew it was illegal to sell goods on the road without a licence but put her share of the blame at 30%, leaving KCCA with 70%.
To work out the award, he estimated her earnings at Shs30,000 a day, or Shs900,000 a month. He noted that she was 37 when she died and that Ugandans are generally expected to work until 60, leaving 23 working years. That gave Shs248.4 million.
So he cut 30% for her negligence, which left Shs173.8 million. He cut a further 30% for what she would have spent on herself, leaving Shs121.7 million.
He said Basemera’s money will be shared among her five dependants. Her two youngest children, Grace Komujuni and Misero Basemera, will each get Shs 40 million.
Her older daughter, Rose Nalujja, will get Shs 30 million while her grandmother, Dorita Kabahika, and her sister, Mary Kansiime, will be given Shs 5 million each.
Justice Wamala also awarded the family Shs 7.2 million in burial costs, but since KCCA had already paid Shs 5 million, he settled on Shs 2.2 million.
He ordered interest of 10% per annum from the date of judgment until KCCA pays in full.
