Court dismisses compensation for man who drowned in drainage channel

Kampala, Uganda | THE INDEPENDENT | High Court has dismissed a case brought by the relatives of Henry Haddu Lwande, who died as a result of drowning in a drainage channel, seeking compensation. Civil Division Judge Musa Ssekaana issued the judgment stating that the petitioners, Stephen Masinde and Eddy Bwire Lwande, who are the administrators of the deceased’s estate, failed to provide evidence that Lwande had died as a result of open drainage channels.

The petitioners had sought special and general damages from Kampala Capital City Authority (KCCA), alleging negligence and breach of statutory duty for failing to ensure that the open Kanywankoko drainage channel along the shoulders of Kinawataka road at Bugolobi, Kampala was covered and made safe and fit for public use. Lwande died on December 16th, 2017, while walking along the shoulders of Kinawataka Road Bugolobi and fell into Kanywankooko drainage channel, which was left open by KCCA, according to the petitioners.

They argued that KCCA was negligently liable for causing Lwande’s death, and it was in breach of statutory duty because there were no signs to alert the public of the potential danger. The KCCA asked the court to dismiss the case, stating that the drainage channel in which Lwande fell was formed due to soil erosion, and there was enough usable pedestrian space. KCCA further submitted evidence that Lwande fell into the outfall of the drainage channel as a result of a reckless runaway driver who swerved into the shoulder designed for non-motorized traffic.

The motor vehicle startled the deceased, causing him to fall into the drainage channel. According to KCCA, the deceased was negligent while walking along the open drainage channel and therefore solely caused or contributed to his death when he jumped into the drainage channel. Justice Ssekaana ruled that Lwande died while trying to jump away from a speeding vehicle that flashed lights into his eyes.

“It was the deceased calculated risk of jumping off the shoulder which caused him to fall in the drainage channel”, said Ssekaana. He also noted that there was adequate road shoulder to facilitate pedestrians to walk along the road and the drainage channel, as stated by KCCA’s witness.

“The degree of care required varies directly with the risk involved. The greater the risk, the greater the care. The defendant /KCCA is required to have a minimum road shoulder of 1.2meters and in this case, there were 1.5 meters of the road shoulder, which in my view was adequate and sufficient to cater to all the pedestrian road users to avoid being knocked by speeding vehicles,” said Ssekaana.

The judge dismissed the case with no order as to costs. It’s worth noting that Lwande is not the only person to die in open drainage channels within Kampala City. On May 2nd, 2020, a vendor in the Bugoloobi market, Cissy Namukasa, drowned in a drainage channel in the Nakawa division, and her body was washed away by stormwater, only to be recovered more than a month later.

Legal Brains Trust, a non-profit organization, successfully sued the government and KCCA for Namukasa’s death. On November 1st, 2021, Justice Michael Elubu allowed Legal Brain’s Trust’s petition and ordered KCCA and the government to put in place and enforce a plan to protect city dwellers, especially pedestrians, from potential loss of life, limb, or property resulting from unsafe roads, drainage channels, sewers, and related infrastructure.

The court also ordered and declared that the KCCA and government infringed on the right to life, protection from deprivation of property, and a safe and clean environment of Kampala City dwellers. It further ordered them to make a comprehensive maintenance plan and report to Parliament within three months on progress taken to ensure that the dangers posed by unsafe roads and open drainage channels, sewers, manholes, and related infrastructure have been addressed.

However, KCCA has not yet implemented Justice Elubu’s orders.