KCCA fined Shs 124m over vendor Basemera’s death in 2017

Kampala Capital City Authority (KCCA) has been ordered by the High court to pay Shs 123.916 million in damages to the family of a street vendor who drowned in the Nakivubo channel while attempting to evade a city enforcement operation nine years ago.

Olive Basemera, 37, died on August 4, 2017, after falling into the Nakivubo drainage channel during a heavy downpour.

Her family sued KCCA, arguing that its enforcement officers had pursued and threatened her during a crackdown on street vendors and that the authority had failed to put adequate safety measures around the open drainage channel.

KCCA, however, argued that Basemera was responsible for her own death because she chose to flee and entered the stormwater channel after seeing an enforcement team conducting a trade-order operation in the city.

Although the presiding judge, Boniface Wamala, found Basemera partly responsible for the circumstances that led to her death, he held KCCA liable for negligence over its failure to adequately safeguard the open drainage channel.

The judge found that the family had not proved that KCCA officers actually pursued or chased Basemera. He noted that the plaintiffs’ witnesses had not been at the scene and that much of their evidence was based on information they had received from other people or seen on television.

He also found that a police report produced in court established that the drowning had occurred and had been investigated, but could not, on its own, establish the precise circumstances in which Basemera drowned.

The judge, however, found KCCA liable for failing to adequately protect the open drainage channel. He said KCCA has a statutory responsibility under the Kampala Capital City Act to construct and maintain major drainage infrastructure.

The evidence before the court, he found, showed that heavy rains and flash floods could cause stormwater to overflow drainage channels and roads, creating a foreseeable danger to people using the area.

Wamala said KCCA should have taken reasonable precautions, including installing and maintaining guardrails, placing warning signs and sensitising the public about dangerous drainage areas.

He rejected KCCA’s argument that open drainage channels are accepted in other parts of the world, holding that international practice could not justify leaving drainage channels unguarded in an environment prone to flash flooding.

“By failing to take measures to prevent road users from falling into the open drainage channels, the defendant/KCCA was in breach of its statutory duty of care,” the judge held.

At the same time, the court found Basemera contributorily negligent. Justice Wamala said Basemera knew that she was vending without a licence and acted negligently when she attempted to avoid arrest and ventured into the stormwater near the open drainage channel.

The court therefore attributed 30 per cent contributory negligence to her and reduced the damages accordingly. In assessing loss of dependency, the court estimated that Basemera earned a net profit of Shs 30,000 a day from her street vending business, equivalent to about Shs 900,000 a month.

Using a projected working life up to the age of 60, the court calculated her expected lost income at Shs 248.4 million.

The court then deducted 30 per cent for Basemera’s contributory negligence and a further 30 per cent representing the portion of her income she would have spent on herself. This left Shs 121.716 million as compensation for loss of dependency.

The amount was apportioned among her five dependants. Her two youngest daughters, Grace Komujuni and Misero Basemera, were each awarded Shs 40.6 million. Rose Nalujja, one of the plaintiffs, received Shs 30.516 million, while Basemera’s grandmother, Dorita Kabahika, and sister, Mary Kansiime, each received Shs 5 million.

The court also awarded Shs 2.2 million in special damages for funeral expenses. Although the family proved burial-related expenses of Shs 7.2 million, the judge deducted Shs 5 million that KCCA had previously contributed towards the funeral, leaving the total principal award at Shs 123.916 million.

The judgment comes barely a week after Commercial Division Judge Stephen Mubiru ordered KCCA to pay Bisons Consult International Limited Shs 1.302 billion in special damages after finding the authority in breach of obligations arising from a multimillion-shilling contract for the construction of eight drainage channels signed in 2016 during the tenure of former KCCA executive director Jennifer Musisi.

It also comes against the backdrop of a 2021 High court ruling in which Civil Division Judge Michael Elubu found that the government and KCCA had infringed on Kampala residents’ rights to life, protection from deprivation of property, and a safe and clean environment by failing to adequately construct and maintain roads and major drainage infrastructure.

The case followed the death of 56-year-old Cissy Namukasa, a vendor at Bugoloobi Market, who drowned in a drainage channel in Nakawa Division on May 2, 2020.

Her body was swept away by stormwater and recovered more than a month later. The court subsequently directed the government and KCCA to report to parliament within three months on measures being taken to address dangers posed by unsafe roads, open drainage channels, sewers, manholes and related infrastructure.

The report was also required to include comprehensive maintenance plans.

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