Desanje & Another v V.G Keshwala & Sons Limited (Civil Suit 113 of 2020) [2025] UGHCCD 34 (26 February 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**[CIVIL DIVISION]**

**CIVIL SUIT NO 113 OF 2020**

1. **DESANJE SARAH** 2. **KISEKA SIRAJ :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS**

**VERSUS**

**V. G KESHWALA & SONSLTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

**THE JUBILEE INSURANCE COMPANY OF UGANDA LTD ::::::::::::::::::: THIRD PARTY**

**BEFORE: HON: JUSTICE SSEKAANA**

**JUDGMENT**

The plaintiffs brought this action against the defendant for wrongful death Under Section 5 & 6 of the Law Reform (Miscellaneous provisions) Act Cap 79 and the payment of General damages, Special damages, Aggravated damages, Interest thereof and costs for the suit.

The defendant’s trailer Registration No. UBB 777Q and UBB 123P operated by a one Lita Andama Stephen, on 22nd April 2018 while carrying beers; recklessly caused a fatal accident when it collided with a Bajaj boxer registration No. UDP 703Poperated by the deceased due to negligence and over speeding of the defendant’s driver.

That after the death of the deceased the defendant accepted liability and promised to contribute at least 10,000,000/= towards the burial expenses. The defendant representatives only contributed 1,500,000/= and promised to pay more 8,000,000/= towards the burial expenses and which they later paid through the defendant’s insurance company.

That the deceased was the sole bread winner of his family comprising of the widow and his elderly mother, 3 biological children namely; Nalukwago Emily aged 4 years, Nampeera Ester aged 5 years, Tamale Ivan aged 6 years, and 3 dependant relatives namely ; Jovia Namuli aged 13 years, Ssentongo Mathis aged 15 years and Nagawa Monica aged 20 years.

That the deceased worked with Nsooba Kalie Traders Association as a Butcher at the Kalerwe abattoir where he earned the sum of 1,600,000/= per month and also hired out his Bajaji Boxer to be used as a boda boda at rate of 600,000/=

That due to the difficult financial conditions after the death of the deceased, the widow has been forced to remove her children from their schools and find much cheaper schools for them and the dependent relatives have been forced to drop out of school altogether.

That the deceased died before the completion of the construction of their family house to which the widow was compelled to borrow money from her employer in order to further finance the construction of the house and also to sale her plots of land in order to complete the construction of the said house to habitable condition.

That the family has continued to suffer a depreciating quality of life due to financial constraints since the deceased was the sole bread winner of the family and the widow can hardly earn enough to feed the family, provide basic necessities such as medical care, clothing, school fees among others.

That the manner of death was very traumatic and psychologically torturing to the family members and especially to the young children who saw their father’s head completely crushed by the trailers and separated from the rest of his body.

That in dealing with the plaintiffs, it was clear that they were illiterates, could not communicate in English or read the English language and even executed the agreements using their thumb print in the fashion of illiterate persons.

That the defendants failed to abide by the law governing contracts with illiterate persons, failed to explain the principle of subrogation and to translate the discharge contract to them in a language they could understand.

The 2nd defendant took advantage of the illiteracy and the desperate grief and poverty of the plaintiffs and hoodwinked them in to accepting to sign a discharge of the total liability and claim without their knowledge or understanding of the implications of their actions.

That the plaintiffs have since waited for the defendant to compensate the family of the deceased for the wrongful death of their loved one but have received no compensation to this date.

The defendant denies each and every allegation made by the plaintiff and admits that there was a fatal accident between its truck and the deceased Kabugao Anthony but denies that their truck driver was the cause of the accident.

The defendant’s driver was not in any way negligent or reckless having driven the truck carefully and lawfully. That the defendant’s truck was fully comprehensively insured and all claims were fully paid in accordance with the law and a discharge voucher relinquishing all future claims was duly signed before the insurance company.

That the family of the deceased was supported by the defendant in the burial expenses but no promise of payment of ten million shillings was ever made. The plaintiff is estopped since the money paid by the insurance company settled the entire claim.

That the defendant has a contract of insurance and is entitled to full indemnification by the 3rd party in the event that court finds in favor of the plaintiff.

That the insurance company showed admission of liability by paying for the burial expenses of the deceased.

The parties filed a joint scheduling Memorandum and agreed on the following facts and issues

**AGREED FACTS**

According to the Court record following are the agreed facts;

1. That the defendant’s trailer Registration No. UBB 717Q and UBB 123P operated by a one Lita Andama Stephen carrying beers was involved in a fatal accident with a one Kabugo Anthony who was operating a Bajaji Boxer Registration No. UDP 793P leading to his immediate death. 2. That the 1st defendant paid some money at the burial and referred the matter to the 2nd defendant insurance company for further discharge of all liability and a total sum of Ugx 10,000,000/=(Ten million Shillings

**AGREED ISSUES.**

1. *Whether the defendants are liable to compensate the plaintiffs under the Law Reform (Miscellaneous provisions) Act Cap 79)* 2. *Whether the insurance company fully discharged all liability to the plaintiffs in accordance to the law?*

*3. What remedies are available to the parties?*

The plaintiff was represented by *Counsel Twagira Emmanuel* while the defendant was represented by *Counsel Martin Asingwire* and the Third Party was represented by *Counsel Faith Amanya*

Both parties filed their witness statements and trial bundles and witnesses were cross-examined on their statements and the submissions which I have duly considered.

***Determination.***

***Whether the defendants are liable to compensate the plaintiffs under the Law Reform (Miscellaneous provisions) Act Cap 79).***

The plaintiffs’ counsel submitted that that the claim is based on a statutory tort created by Section 5 of the Law Reform Misc. Provision Act and stated as follows.

‘if the death of any person is caused by any wrongful act, neglect or default of any person, and the act , neglect or default is such as would, if death had not ensued, have entitled the person injured by it to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances as amount in law to a felony.’

Counsel for the plaintiffs argued that the suit was brought by the plaintiffs as Administrators of the estate of the late Kabugo Anthony, see Section 6 of the Law Reform (Miscellaneous Provisions) Act Cap 79. In addition, they testified that the truck driver appeared not to see the motorcycle rider and did not slow down at all and passed close to the motorcycle rider that he was hit by the back of the truck causing him to fall in between the rear tires of the truck to his sudden death.

Counsel noted that the defendant’s driver owed the deceased a duty of care and that he was negligent in causing the accident and death of the deceased after he drove his truck in a manner oblivious to other road users and too close to the deceased hitting him with the rear of his truck.

The defense did not challenge the plaintiff’s evidence as far as the negligence of its driver. In fact, in its application to add the third party to this suit, they relied on information in which the defendant admitted that its driver had been negligent and had not seen the motorcycle rider at all and was not aware of having caused the death of Kabugo until he was stopped by police several.

Lastly, Counsel submitted that their submission of a compensation request to the insurance company was a clear action of a defendant who has acknowledged their negligence and accepted their liability. Indeed, the third party also made payment to the family of the deceased, which could only have been done if negligence and liability were no longer in issue

The Defendant’s counsel noted that the Plaintiff must prove either wrongful act, negligence or default. PW1 Desanje’s statement, she testified that they were winding up church service 50 meters away, she and others had noises but did not reach the scene but she was only told that her husband was killed in an accident. This did not attribute any act of the truck driver to negligence of wrongful act or default.

In addition, PW2 Musisi Richard, who also clarified in cross examination that both the bicyclist and Kabugo the deceased went in to the tarmac. He testified that the trailer did not knock him but he fell in the road and was crushed by the hind tires.

Further, the defendant Counsel noted that the evidence of a driving permit of Lita Andama Stephen the truck driver showing zero restrictions and all classes of Vehicles he could drive that included the truck in question. This was to prove that 1st Defendant kept records of its driver as required under the Traffic and Road Safety laws and also produced the insurance Policy cover for the truck that was admitted with no objection.

Counsel submitted that a driver of vehicle cannot owe a duty of care to a rider on a marram offside of the road, who is overwhelmed by the sound of a passing truck, and who loses control of his motorcycle. The truck driver did not anticipate that the motorcyclist would lose control of his motorcycle.

The defendant Counsel Challenged the plaintiffs that they did not adduce evidence of the condition of the motorcycle prior to the accident and whether or not it was road worthy, or the rider’s license to show if he was licensed for it.

***ANALYSIS*.**

A person commits the tort of wrongful death if the death of any person is caused by any wrongful act, neglect or default of any person, and the act, neglect or default is such as would, if death had not ensued, have entitled the person injured by it to maintain an action and recover damages in respect of it, the person who would have been liable if death had had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a felony .

The action may be brought by a claimant who is the member of the family of the person whose death has been so caused, and shall be brought either by and in the name of the executor or administrator of the person deceased or by and in the name or names of all or any of the members of the family of the person deceased. *See. Section 5* and 6 of the Law Reform (Miscellaneous provision) Act Cap 79 now Cap 289.

According to Section 2 of the Act, a member of the family is described to include the father or mother or son or daughter of a deceased person notwithstanding that he or she was only related to the deceased person illegitimately or in consequence of adoption.

In the case of *Serubiri Angelo (suing through his next friend Mike Katende)-v-Umeme Uganda Limited HCCS No. 469 of 2017* in which the court expounded on what needs to be satisfied for one to successfully prove a case of negligence.

It is until then, the court can find that the defendants is actually vicariously liable, employers can be held liable for the negligence of their drivers if the driver was acting within the scope of their employment

The defendant to be found liable of negligence in this matter, the court has to look at the actions of the defendant’s truck driver and find out if they acted negligently or not. It is after then court can establish its liability.

According to the land mark case of *Donoghue-v-Stevenson [1932] AC 562* the elements of negligence are that;

1. *the defendant owed the plaintiff a duty of care,* 2. *the defendant breached that duty of care* 3. *the plaintiff suffered damage as a result of a breach of that duty of care by the defendant.*

See ***Security 2000 Ltd vs Cumberland CACA No. 916 of 2014 and H. Kateralwire vs Paul Lwanga [1989-90] HCB 56***

From the evidence on record, counsel for the plaintiff stated that the driver owed the deceased a duty of care and that he was negligent in causing the accident and death of the deceased after he drove his truck in a manner oblivious to other road users and too close to the deceased hitting him with the rea of his truck.

This evidence was not challenged by the defendant, they rather just relied on the information in which the defendant admitted that its driver had been negligent and had not seen the motorcycle rider at all and he was not aware that he had caused the death of Mr Kabugo until he was stopped by police several kilometers away.

This court shall rely on the explanation of *Hon. Justice Stephen Mubiru* in the case of ***Oil Energy 25 Ltd vs Komakech Robert HC Civil Appeal No.111 of 2019*** where he stated that;

“*A breach of duty occurs when the party owing the particular duty falls below the standard of behavior that is required by the particular duty in question. The question of whether the conduct of 30 the Defendant has met appropriate standard of care in the law of negligence is a question of mixed fact and the law. Once the facts 6 5 have been established, the determination of whether or not the standard of care was met is one of law. The basic requirement of foresight is simply that the Defendant must have foreseen the risk of harm to the Plaintiff at the time he or she is alleged to have been negligent*.”

The degree at which the standard of negligence is applied, reasonableness and risk anticipation. The algorithm is very clear that can a reasonable man carry on the same acts as per the defendant. As was held in the case of Jane Nakawunyu vs H. K Kafureka HCCS 30 No.19 of 1993, a prudent man will guard against the possible negligence of others when experience shows such negligence to be common.

I agree with the plaintiff’s Counsel that Regulations 8(6) of Traffic and Road Safety (Rules of the Road) Regulations, 2004 requires each driver to keep a safe distance from other road users which was the opposed in the circumstance before court.

Its trite law on the burden and standard of proof in all civil matters the standard required of the plaintiff is on the balance of probabilities as per Section 101 of the Evidence Act, Cap. 6(Now Cap 8) *See. Miller v. Minister of Pensions (1947).*

It is therefore a settled principle of evidence that whoever desires any Court to give judgment as to any legal right or liability must prove the existence of facts which he asserts.

The Defendants therefore, should have exercised the duty to keep the distance as required by the road motor users not to be close in order to avoid crashing the deceased.

This Issue is answered in the affirmative

***Whether the insurance company fully discharged all liability to the plaintiffs in accordance to the law.***

The plaintiffs’ counsel argued that PW1, a primary five drop-out and roadside tomato and onion seller from Kanungu district, along with Pastor Byamukama, a primary two drop-out, and her uneducated mother-in-law, could not understand English, the language predominantly used by Jubilee Insurance Company staff. PW1 believed they were receiving money for “mabugo” (condolence). Counsel contended that the use of thumbprints to sign documents and PW1’s inability to speak English clearly indicated the signatories were illiterate.

The plaintiffs’ counsel challenged the third party discharging of their liability since they didn’t comply with the law and took full advantage of the illiteracy of the Plaintiffs and led them to believe one thing, yet they executed documents for another.

The evidence led of PW1 and PW2, the deceased was killed on his way to work at Nsooba Kalerwe Traders Association where he operated a butcher as his source of income. Although the evidence didn’t state his monthly income, Court can use its discretion and deduct the average income of a butcher operator is approximately Ugx 5,000,000/= per month. The Court in the case of *Okura Kemesi & another Vs Umeme Ltd HCCS No. 41 of 2016* when faced with a similar situation had this to say:-

*“Although I accept the evidence of plaintiffs, the deceased operated a salon, they provided no inkling on the income from that salon but doing the best I can, I shall place a value of 200,000 as monthly income from the saloon.”*

The plaintiff counsel submitted that the presumption therefore is that an expected loss of earnings of 20% can be calculated to amount to 20% of 5,000,000/= per month, being a total of Ugx. 1,000,000/= per month, making it Ugx. 12,000,000/= per year. Applying the multiplier of 27 year gives us a total of 324,000,000/= (Three hundred twenty four million shillings) over the course of his expected life time as disposable net income of which the insurance company had tricked the plaintiffs to sign off a full and final discharge for a compensation of only Ugx. 8,000,000/= (eight million shillings only) which is a great injustice.

Counsel acknowledged that the family endured significant physical and psychological pain due to the accident, and while no damages could fully erase their suffering, an award of Ugx. 100,000,000/= (One hundred million shillings) would provide some comfort.

The defendant’s counsel, however, noted that the plaintiffs had already received Ugx. 10,000,000/=, and the Third Party’s defense indicated Ugx. 8,000,000/= was reflected in a discharge voucher signed by the plaintiffs, releasing the Third Party from further liability.

The defendants counsel contended that PW1 testified that they received money after the accident and that after 2 months after burial, they received more money. When interviewed by court for clarity, she said when she received condolences (Mabugo) outside the sum for compensation received the money, she said she finished the house, paid rent for her own mother –in-law, and took care of their children.

The defendant Counsel noted that in her cross examination shows she does not know who she sued, who knocked her husband or who gave her money. That the Insurance Company was aware of the undisputable facts of the faults of the deceased that led to the accident and such, the amount paid was more than sufficient to discharge any liability, with contributory negligence.

Though liability is denied, any liability was discharged. For 3 years, the plaintiffs did not do much, and they filed the suit, surprisingly, only 1 day to the close of the limitation period, the reason the Defendant pleaded latches.

***Analysis***

**“Illiterate** means, in relation to any document, a person who is unable to read and understand the script or language in which the document is written or printed”. See Section 1(b) of the Illiterates Protection Act Cap 78[now Cap 288]. A contract becomes voidable when one party cannot read and the other party uses their illiteracy to deceive them about what they have signed.

According to the case of *Stanbic Bank Uganda Ltd vs Ssenyonjo Moses Civil Appeal No. 147 of 2015*, The justices of the Court of Appeal unanimously confirmed the decision which stated that the respondents had gone as far as primary three (3) and four (4) with school, respectively and the intention of illiterate does not mean someone who is unable to understand the English language but it means someone who is unable to read and write in that language. The plaintiff was not sufficiently informed about the contents of the documents they executed because it’s clear in the evidence of the PW1 stating

“That none of us really knew what was going on because Pastor Byamukama is a primary two drop out and my mother in law never attended any school yet the people we met were mostly speaking in English which we did not understand”

Any person who shall write any document for or at the request, on behalf or in the name of any illiterate shall also write on the document his or her own true and full name as the writer of the document and his or her true and full address, and his or her so doing shall imply a statement that he or she was instructed to write the document by the person for whom it purports to have been written and that it fully and correctly represents his or her instructions and was read over and explained to him or her . Section 3 of the Illiterates Protection Act Cap 78

The Illiterates Protections Act requires the translator to write his full names and address. The above mentioned measures are meant to protect the injustices and illegalities which are subjected to the category of people in the same position like the plaintiffs.

Therefore, the insurance company should have complied with the requirements under the law as it is clearly highlighted above.

In the circumstance of the case before me, I find Issue number two answered in the negative.

***What remedies available to the parties?***

The remedies available to the plaintiffs is to recover damages and the award of these will basically compensate the traumatic experience caused to the family, and the fact that the deceased was the only person that the family and the relatives were depending on. The children having lost their farther at an early age.

**General damages.**

General damages are damages awarded to a party for any loss or inconvenience caused. They are a result or a probable consequence of the act complained of and follow the ordinary course or relate to all other related acts of damage whether pecuniary or none pecuniary, future loss as well as damages for paid loss and suffering . ***See: Wakabi Simon – v- Apollo Kantinti HCCS No. 1245 of 2018***.

Counsel for the plaintiffs pray for general damages of 100,000,000/= on grounds that as a result of the defendant’s negligent actions by the truck driver.

In the case of Serubiri Angelo (suing Through His Next of friend Mike Katende) - V-Umeme Limited (Supra), the court awarded the plaintiff shs.500, 000,000/=in general damages as a result of electrocution that left the plaintiff permanently incapacitated.

I therefore, award 50,000,000/= as general damages from the defendants’ company and the remedies available to a plaintiff is to recover any damages and loss against the defendant whose employee acted negligently hence causing death of the deceased.

**Interest.**

Section 26 (2) of the Civil Procedure Act cap 282 provides that:

“(2) Where and insofar as the decree is for the payment of money, the court may, in the decree, order interest at such a rate as the court deems reasonable to be paid on the principle sum adjudged from the date of the suit to the date of the decree, in addition to any interest adjudged on such principle sum for any period prior to the institution of the suit with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.”

It is a settled position of law that interest is awarded at the discretion of court

**Costs of the suit**.

Section 27 of the Civil Procedure Act Cap 282 provides that the costs shall follow the event. The plaintiffs in this suit are entitled to costs. In the matter before court today, I grant costs of the suit to the plaintiffs.

Wherefore Judgement is entered in favor of the plaintiffs with the following orders.

1. *A declaration that the death of the deceased was caused by the negligence of the defendants’ employee.* 2. *The defendant is vicariously liable for the acts of her agent* 3. *The plaintiffs are awarded general damages of fifty million shillings (50,000,000)* 4. *The plaintiffs are granted costs of the suit.*

I so order.

***Ssekaana Musa***

***Judge***

***This judgment is delivered by the Registrar this……… February 2025***