Kyakuhaire v Mwesigye and 2 Others (Misc Cause 16 of 2023) [2024] UGHC 1171 (6 December 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

## MISCELLANEOUS CAUSE NO.0016 OF 2023

### **KYAKUHAIRE ALIMUTAKABIR**

(Suing through the next of Kin ASHRAF KYAKUHAIRE::::::::APPLICANT **VERSUS**

1. VICENT MWESIGYE

2. INSPECTOR GENERAL OF POLICE

3. ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

### **RULING**

- The Applicant, a minor suing through the next of Kin brought this $[1]$ $50(1)$ , (2) and 21 of the 1995 application under **Art.** Constitution, S.3, 4 (d), 10 of the Human Rights Enforcement Act, 2019, O.52 r. 1 CPR and S. 98 CPA seeking the following orders: - (1) A declaration that the acts of $1^{st}$ Respondent in ordering and/or allowing police officers under his command to fire at the crowds in Kiryatete - Hoima District on the 3rd day of January, 2023 causing harm and injury to the Applicant amounts to an infringement and breach of the Applicant's right to life. - A declaration that the $2^{nd}$ and $3^{rd}$ Respondents' personnel $(2)$ and/or officer acted wantonly, negligently, criminally when he fired at the crowd and injured the Applicant. - An order that the $3rd$ Respondent is vicariously liable for the $(3)$ acts of the $1^{st}$ and $2^{nd}$ Respondents done and/or committed in the course of their employment while shooting at the crowd wantonly. - An order for compensation of the Applicant for the injuries $(4)$ sustained as a result of the negligent acts of the Respondents to a tune of Ugx 200,000,000/= (Two hundred million shillings). - An order directing the Respondents to cater for and/or pay $(5)$ the future and present costs of the Applicant's treatment

arising from the effect of the injury caused to him by the $1^{st}$ Respondent's acts.

- Special damages to a tune of Ugx 10,900,000/=. $(6)$ - (7) General damages and costs of the application.

The application is supported by the affidavit of the Applicant.

Whereas the Respondents were duly served with court process as $[2]$ per the affidavit of service on record dated 12/12/2023, they failed and or refused to file an affidavit in reply. It is the law that failure to file an affidavit in reply to the supporting affidavit, the statement of facts contained in the affidavit in support of the application remained uncontroverted, and is an admission, Shelton Okabo vs Standard Chartered Bank (U) Ltd H. C. M. A. No. 51 of 1992. In Samwiri Massa vs Rose Achen [1978] HCB 297, it was held that:

"Where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such facts are accepted".

In the instant case, in the absence of an affidavit in reply filed by $[3]$ the Respondents, it is presumed that they admit the affidavit evidence presented by the Applicant.

### Background.

- In this unfortunate incident, the Applicant, a minor was shot by a $[4]$ live stray bullet in the head and consequently sustained injuries. The bullet was fired by police during a scuffle in Kiryatete-Hoima as police pursued criminal suspects. According to press reports and police, the Applicant baby was hit in the head by a stray bullet as the flying squad pursued armed car robbers in Hoima City on $3^{rd}$ day of January, 2023. - The Applicant was rushed to Hoima Referral Hospital for medical $[5]$ attention where he was given $1^{st}$ aid and subsequently referred to Mulago Hospital.

- According to the medical report from the neurosurgeon, Mulago $[6]$ National Referral Hospital, Kampala, the Applicant had a gunshot wound to the right side of the head caused by a stray bullet, the brain C. T scan done showed a shrapnel in the right parietal occipital region. Upon management and treatment, basing on a follow up C. T scan done showing a marked radiological improvement, the Applicant was discharged with no major complaints apart from episodes of convulsions where by doses of anticonvulsants had to be increased. - the Applicant, the child suffered grievous According to $[7]$ harm/injuries in form of a deep wound and has since then remained incapacitated with a lot of discomfort due to the bullet in his head which cannot be extracted. Todate, since the fateful event the child continues to receive treatment with regular checkups and is required to purchase the recommended drugs that are It is the contention of the Applicant that the costly. circumstances surrounding the fateful shooting were not as such as would necessitate the Respondents shooting and firing of live bullets in a public place. Lastly, the Applicant contended that since the bullets were fired by police officers in the course of their employment, the $2^{nd}$ and $3^{rd}$ Respondents are vicariously liable for these acts.

#### **Issues for determination.** $[8]$

- Whether the $2^{nd}$ and $3^{rd}$ Respondents' police officers acted $(1)$ negligently when a bullet was fired at the crowd and injured the Applicant. - Whether the $1st$ Respondent ordered and/or allowed police $(2)$ officers under his command to fire at the crowds in Kiryatete - Hoima District and injured the Applicant. - Whether the $2^{nd}$ and $3^{rd}$ Respondents are vicariously liable $(3)$ for the negligent acts of its officers. - What remedies are available to the parties. $(4)$ - Counsel for the Applicant did not file any submissions to wrap up $[9]$ the Applicant's case and guide court accordingly. This court

nevertheless proceeds to determine the application without the input of Counsel for the Applicant in form of submissions.

#### Whether the $2^{nd}$ and $3^{rd}$ Respondents' police Issue No. $1$ : officers acted negligently when a bullet was and injured the crowd the fired $at$ Applicant.

- [10] As per the uncontroverted affidavit evidence of the Applicant, the Applicant minor was on the 3rd day of January, 2023, around 1:00pm at the family produce store and mobile money stall in Kiryatete-Hoima when a stray bullet hit him in the head and consequently sustained severe injuries. The incident occurred in the presence of several by standers in the crowd when police officers attached to Hoima Police Station, in the course of employment were pursuing the arrest of criminal suspects. - [11] From the circumstances surrounding the incident, it is apparent that the shooting took place in a crowded public place and for all intents and purposes the Applicant posed no threat to the police who fired the shots. Police officers appear clearly to had been pursuing criminals. The harm to the Applicant was not caused by the criminals. As per the press reports (Annexure D1 to the application), the injuring of the child was not intentional, it was The police were pursuing thieves when they were accidental. blocked and upon shooting, the bullet ended up hitting the baby. - [12] For the tort of negligence to be properly established, it must be shown that the defendant owed a legal duty of care and that duty was breached thus causing injury to the Plaintiff/Applicant. The tort of negligence is well established in the case of Donoghue vs Stevenson [1932] AC, page 562 in which the test as articulated by Lord Atkin i.e., the duty to take care when relating with affected $bv$ the likely $be$ to $SO$ who people are defendants'/respondents' acts or omissions and breach of which duty gives rise to liability in negligence.

[13] Applying the principles, police is under a duty of care to protect an individual from a danger of injury which they themselves It was reasonably foreseeable by police that suspects create. might try to escape and be pursued or resist arrest and the by standers might be injured by their act or omission. The police officers were under duty to cause the arrest of thieves carefully ensuring that the lives of by standers who included the Applicant are saved and protected. The police officers act of firing during scuffle to arrest thieves in a public and thereby injuring the Applicant was negligent. The incident and/or the harm caused to the Applicant is not one that happens without negligence. The $1^{st}$ issue is in the premises found in the affirmative.

### Whether the 1st Respondent ordered and/or Issue No. 2: allowed police officers under his command to fire at the crowds in Kiryatete - Hoima District and injured the Applicant.

[14] Whereas it is not in dispute that the Applicant was injured by a stray bullet from the police officers who were pursuing the arrest of thieves, the Applicant did not adduce any evidence that during the operation, the police officers were at the time under the command of the 1st Respondent and or that he ordered and/or allowed them to fire at the crowds. Without even indicating what the position the 1st Respondent held in the police, the Applicant merely deposed thus:

"That the bullet was fired by one of the Uganda Police Officers attached to Hoima Police Station in the course of his employment, following the orders of the $1st$ Respondent to cause arrest of suspects who were trying to escape from police custody".

The Respondents' default to file an affidavit in reply did not relieve the Applicant of his legal obligation to prove his case by disclosing the position the 1st Respondent held in police and proof that he ordered and or allowed the shooting into the crowds. It is not ordinary that a DPC would order his officers to shoot into a crowd.

[15] In the premises, I find the $2^{nd}$ issue in the negative. There is no evidence that the $1st$ Respondent ordered and/or allowed police officers under his command to fire at the crowds and injuring the Applicant. The incident could have been a negligent or careless act of an individual police officer without necessarily being ordered to do so.

#### $2nd$ and $3rd$ Respondents are **Issue No.3: Whether the** vicariously liable for the negligent acts of its offices.

[16] The position of the law on vicarious liability as this court found is in Twine Emmanuel vs A. G. H. C. Misc. (page No.3 of 2024) is that where a servant or agent acting in ordinary course of his or her employment does or omits to do an act which leads to injury, damage or loss on the part of another, the employer or the master is liable, see also Security 2000 Ltd vs Cumberland, C. A. C. A. No. 916 of 2014. In relation to Government, S.3(1) of the Government Proceedings Act Cap.77 provides that:

"... the Government shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject - as in respect of torts committed by its servants or agents".

- [17] Vicarious liability of the principal or employer is thus founded on the primary or direct liability of the agent or employee. Under the doctrine, the principal or employer is thus a joint tort feasor with the agent or employee. An act may be done in the course of employment so as to make a principal or master liable even though it is done contrary to the orders of the master, and even if the servant or agent is acting deliberately, wantonly, negligently, or criminally, or for his own behalf; nevertheless, if what he did is merely a manner of carrying out what he was employed to carry out, then his mater is liable, see Muwonge vs A. G. [1967] EA 17 and Kaggwa Vicent vs A. G. H. C. C. S. No. 391 of 2014. - [18] In the instant case, the uncontroverted evidence is that police officers who are employees or agents of the 3rd Respondent,

during the course of their employment while trying to pursue the arrest of thieves, fired a bullet in the public and injured the Applicant. The principle of vicarious liability holds the employer and not the administrative office accountable for the actions of its employees or agents if those actions were performed within the scope of their employment. Therefore, in this case, the 3rd Respondent and not the 2nd Respondent, being the employer of the police officers, bear vicarious liability for the actions committed by the employee.

[19] In the premises, I find that the $3^{rd}$ Respondent is vicariously liable for the actions of the police officer who lawfully fired a bullet that injured the Applicant.

# Issue No.4: What remedies are available to the parties.

### Special damages.

[20] In Rosemary Nalwadda vs Uganda Aids Commission H. C. C. S. No. 67/2011, it was held that in line with O.6 r.3 CPR.

"A claim for special damages must specifically be pleaded and strictly proved. A plaintiff had the duty to prove their damage. It is not enough to write particulars, throw them to the court and say "this is what I have lost. I ask you to give me these damages".

They have to be proved. This does not mean that proof of special damages have to be proved by documentary *evidence in all cases..."*

See also Makubuya Enock William (T/A Polla Plast) vs **Umeme (U) Ltd S. C. C. A No. 1 of 2019.**

[21] In the instant case, the Applicant pleaded and particularised special damages as:

| (a) Drugs | | $5,000,000/=$ | |--------------------|----------------------|----------------| | (b) Hospital bills | | $3,000,000/=$ | | (c) Transport | $\quad \ \ \, =$ | $2,000,000/=$ | | (d) Scan | $\quad \ \ \cdots$ | $900,000/=$ | | | | $10,900,000/=$ |

[22] In evidence however, the Applicant adduced documentary evidence of receipts for the drugs purchased totalling to Ugx 291,000/= and transport charges as $Ugx$ 240,000/= totalling to The Applicant did not adduce any other Ugx 531,000/=. evidence, otherwise alluding to any other expenditure for example, hospital bills, in form of proof of special damages. As a result, I am inclined to award the Applicant $Ugx$ 531,000/= as the proved special damages.

#### General damages. $(a)$

- [23] Under the law, general damages are implied in every breach and In a personal injuries claim, infringement of a given right. general damages will include anticipated future loss as well damages for pain and suffering, inconvenience and loss of In assessing damages arises out of a constitutional amenity. violation, although the infringement of a person's liberty or life per se imputes damage, a plaintiff needs to prove some damage suffered beyond the mere fact of unlawful assault or injury. Otherwise, the mere breach may only entitle a plaintiff to nominal damages, Twine Emmanuel vs A. G. (supra). - [24] The principle in assessing compensation for personal injuries as explained by Lord Blackburn in Livingstone vs Rawyards Coal Co. (1880)5. App. Cases 25 at 35 is as follows:

"Whereas an injury is to be compensated by damages you are to consider what is the pecuniary consideration which will make good to the sufferer as far as money can do, the loss he has suffered as the natural result of the wrong done to him".

On the facts of the present case, this court having found that the rights of the Applicant/victim were violated through the wrongful act or conduct of the 3rd Respondent's agent and/or servant, I find that the Applicant has established that he is entitled to general damages for such wrongful acts.

[25] The Applicant adduced evidence that the acts of the Respondent caused him fear, trauma and inconvenience. This in addition to the expenditure in form of movements, feeding and other inherent associated medical expenses. As per the medical report from the Neurosurgeon (Annexure "B1" to the application) who attended to the victim, the victim suffered a physical open head injury with brain contusion and a shrapnel in the right parietal occipital lobe i.e. the head. The victim was however successfully properly managed, had no neurogical deficits and a follow up brain C. T scan done showed marked radiogical improvement and was discharged with a recommendation to continue with anticonvulsants given and have 4 monthly review or when necessary. Upon taking stock of all the above, and bearing in mind that police facilitated the Applicant with Ugx 1,000,000/=, thus mitigated the damages, I award the Applicant a total of Ugx $45,000,000/$ = as general damages.

#### $(b)$ Costs.

- [26] In accordance with S.27 CPA, costs are awarded at the discretion of court and follow the event unless for some good reasonable court thinks otherwise. As the successful party, the Applicant is granted costs of the suit against the $3rd$ Respondent. - [27] In conclusion, the application is granted in favour of the Applicant for the following declarations and orders; - The $2^{nd}$ and $3^{rd}$ Respondents' police officer acted wantonly $(a)$ and negligently when he fired at the crowd and injured the Applicant. - The 3rd Respondent is vicariously liable for the actions of the $(b)$ police officer who wantonly fired at the crowd and injured the Applicant. - An order of special damages amounting to $Ugx$ 531,000/=, $(c)$ - General damages amounting to $Ugx$ 45,000,000/= for $(d)$ compensating the Applicant the injuries sustained, pain, trauma, inconvenience and torture suffered. - Costs of the suit as against the $3rd$ Respondent. $(e)$

Dated at Hoima this $6th$ day of December, 2024.

Byaruhanga Jesse Rugyema **IUDGE**