Okecho Obbo v Okuna & 2 Ors (H.C.C.S. MT. 6/93) [1995] UGHCCD 5 (30 October 1995)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA

## H. C. C. S. MT. $6/93$

............ PLAINTIFF LYDIA OKECHO OBBO ........

## **VERSUS**

NIMROD M. OKUNA ) ........ DEFENDANTS . . . . . . . . . . . . . . CHARLES BWAMIKI ) ATTORNEY GENERAL )

BEFORE: THE HONOURABLE JUSTICE C. M. KATO

## JUDGMENT

The plaintiff in this suit is one Lydia Okecho Obbo who brought this action as the Administratrix of the estate of her late husband Richard Oketcho Obbo who died in an accident on 22-6-93. She brought out the claim on her own behalf and on the behalf of the six dependants of the deceased who are actually the deceased's children namely: Peter Obbo aged 11 years, Kennedy Atenyi aged 8 years, George Okoth aged 7 years, Andrew Oyuki aged 6 years, Faith Akello aged 3 years and David Oyuki aged 6 months. Although the plaint (statement of claim) does not say so the suit must have been filed pursuant to the provisions of: The Law Reform (Miscellaneous provisions) Act.

The facts of the case are simple and straight forward. They are that on the 22nd day of June 1993 the deceased was travelling from Jinja side towards Tororo in a Toyota minibus no. UPS 603 belonging to the first defendant Nimrod Okuna and it was being driven by the second defendant Charles Bwamiki. On reaching a place called Mamutere there was an accident involving this same vehicle and another vehicle Reg. No. UW 1152 and UW 1164 belonging to the third party (the Attorney General). As a result of that accident the plaintiff's husband ciad instantly. The fact of the accident is not denied nor is the ownership of the minibus.

At the trial 3 issues were framed for determination by this court:

- 1. Whether the first defendant's servant/agent was negliegent. - 2. Whether or not the third party's agent/servant contributed to the accident. - 3. Quantum of damages if any.

The plaintiff called a total of 4 witnesses and the first defendant called one witness he himself did not testify the second defendant did not also testify, the third party called no evidence at all.

Regarding the first issue the plaintiff relied on the evidence of the two policemen PW2 and PW 4 who visited the scene of crime. Considering the evidence of these two police officers together with the evidence of DWN who was the only eye witness of the accident it is not disputed that the accident took place and the cause of this accident was due to the neglience of the second defendant. According to the evidence of DWI Lawerence Ogola his neglience was that he (second defendant) drove his motor vehicle where the **W**isibility was very poor as the vehicle ahead of him was emitting excessive smoke which made visibility difficult. Another fact which shows that he was negligent was that he tried to overtake another vehicle at the bend when he should not have done so. I do agree with the argument of Mr. Chebrion the learned counsel for the third party when he says that the second defendant would have avoided the accident if he was a bit careful. The first issue is answered in the affirmative.

As for the second issue the evidence of DW1 was to the effect that the motor vehicle UW1152 and 1164 which was pulling a trailer was producing heavy smoke which covered the road. In my opinion the act of the driver of the trailor amounted to neglience as he drove his vehicle which was in a condition that made it difficult for other road users using the same road to see properly what was ahead of them. It is most likely that the accident could have been avoided if visibility had not been made difficult by the smoke from that trailer. The second issue is also answered in the affirmative.

Before I proceed to deal with the third issue it is important that I make a finding as to which of the two drivers was more to blame. Considering the circumstances of this

$-2-$

matter I feel the driver of motor vehicle UPS 603 was 30% to blame for the accident because on seeing that the road was not good he should have either stopped or should not have ventured to overtake at a bend when it was not safe to do so. The third party's driver was 70% to blame for the accident because it was the smoke which was being emitted by his vehicle that made visibility very difficult otherwise the accident would have been avoided.

I now proceed to deal with the third issue which concerns damages. I will first deal with the issue of special damages and then the issue of general damages. In her plaint the plaintiff claimed a total of 375,550/= for special damages which she broke down as follows: Funeral expenses 184,000/=, feeding mourners $61,000/$ =, personal effect of the deceased lost during the accident 58,000/=, Administration cause expenses 72,000/=, sketch plan and accident report 9,000/= totalling to $375.550/$ =. The learned counsel for the two defendants Mr. Ower in his submission felt that special damages should be limited to 141,000/= the learned counsel for the plaintiff concured on that figure but he prayed that the figure should be made to include 9,000/= for sketch plan, 58,000/= for deceased's personal effects lost. According to the pleadings and according to the evidence in court there is no doubt that the deceased lost the items indicated in the plaint these were a wrist watch, pair of shoes, a jacket and pair of trousers and all these amounted to 58,000/=, I feel the plaintiff is justified in claiming this amount which I consider reasonable. As regards to the sketch plan it is common knowledge that this plan must have been paid for and the figure of 9,000/= is not unreasonable I accordingly hold that special damages amounting to 208,000/= $(141,000 + 9,000 + 58,000 = 208,000/-)$ were not only prayed for but have been proved and I accordingly do award that amount to the plaintiff in form of special damages.

Regarding the issue of general damages the law is that in computing general damages in cases of this nature a number of factors must be taken into account, one of these<br>the working age of the deceased and the other factor is<br>factor is/the degree of dependancy by the dependants. In the present case the deceased was said to have been aged 37<br>has been stated to vary between 55% 60 years so his life expectancy<br>years and in Uganda life expectancy was 18 years that being the period the widow and the children would have expected to depend on him. As for the degree of dependancy it was the case for the plaintiff that the deceased was a teacher whose salary and allowances amounted to about $64.278/= p.m.$ The plaintiff however testified that before his unfortunate death the deceased used to give her 10,000/= per week for house keeping which means she was getting about 40,000/= per month, she also said he used to give her about 20,000/= p.m for her personal use in addition to that she was getting 15,000/= per week for things like UEB bills, charcoal etc which meant she was getting $60,000/=$ p.m for these items. In total the dependancy of the plaintiff was $120,000/= p.m$ from her husband.

I will use a multiplier of 15 years as being the period deceased would possibly have continued to support his family giving an allowance of the other 3 years to cater for other imponderables. I will therefore multiply 12,000 p.m x 12 months x 15 years = $21,600,000/-$ . I accordingly award the plaintiff 21,600,000/= as general damages. This money is to be divided among the dependents in the following order considering the fact that the plaintiff (widow) is a young lady of 34 years who is likely to re-marry I will give her . 2,000,000/= and for the children they are to get the following amount each in order of their age, the eldest getting least and the youngest getting highest as he had a longer period to depend on the deceased:-

> 1. Lydia Oketch Obbo (widow) $-2,000,000/=$ $-2,500,000/=$ 2. Peter Obbo (son ared 11 years) 3. Kennedy Atenyi (son aged 8 years) $-3,000,000/=$ 4. George Okoth (son aged 7 years) $-3,200,000/=$ 5. Andrew Oyuki (son aged 6 years) $-3,400,000/=$ 6. Faith Akello (daughter aged 3 years)- 3,500,000/= 7. David Oyuki (son aged 6 months) $-4.000,000/=$ Total $21,600,000/=$

The amount awarded to the children will be kept by their mother in trust for them for their education and well fare; in the event of her dying or getting re-married the money for the infant children will be given to the Administrator General to administer it in trust for them for their

$-4-$

education and well fare. In coming to this decision I have closely followed the authorities quoted to this court by the learned counsel in particular the cases of: Raja v. Kaktaria & anr. (1965) EA 362, Kassam v. Kampala Water co., Itd (1965) EA 587 and many other authorities which I have been able to look at including: Stephen Balikurungi v. AG (1976)HCB 346. It may be added by way of clarification that the sum of 208,000/= awarded as special damages will be taken by the widow.

$-5 - 1$

In final conclusion I enter judgment for the plaintiff for a sum of 21,808,000/= (21,600,000 general damages, 208,000/= special damages) in favour of the plaintiff against the first and second defendant jointly and severally and the third party for 70%, which means that the two defendants (Nimrod Okuna and Charles Bwamiki) will meet 30% of the amount awarded while the third party will have to pay 70% of that amount. The plaintiff is to get the costs of this suit from the two defendants and third party. The amount awarded will carry an interest of 8% p.a from date of judgment till payment in full. So I order.

> $\sqrt{2}$ C. M. KATO JUDGE $30 - 10 - 95$