A MAN, who was seriously injured in an accident involving a Mukumba Brothers bus, operating as Inter Africa Bus Service, has lost a US$234 000 claim after taking the bus operator to court seeking compensation.
Peter Musindo cited Isaac Kazambara, the bus driver and his employer, Inter Africa Bus Service, as defendants.
Musindo had instituted an action against the defendants for damages arising from a road traffic accident that was allegedly caused by Kazambara on April 12, 2018.
Inter Africa was being sued in its official capacity as Kazambara’s employer.
Musindo claimed US$234 000, payable in local currency at the prevailing official rate.
His claim included special damages in the sum of US$10 000, shock, pain and suffering (US$40 000), permanent disability (35%), loss of amenities (US$100 000) and loss of earnings (US$84 000).
However, High Court judge Justice Samuel Deme dismissed the application after Musindo ditched the court proceedings.
The judge also ruled that there was no evidence as to when demand for transfer was made.
He also noted that there was also no evidence as to when the cause of action actually arose and that the court was left in suspense on these very crucial issues.
Justice Deme said for a valid claim to be established, there should be a clear cause of action from which the debt arose.
“It is common cause that the plaintiff abandoned proceedings under HC 3278/21 because the application was deemed to be fatally defective. The plaintiff, in the premises, did not prosecute the matter to final judgment,” the judge said.
“If he had done so, there was no need for him to be before the court again with a similar claim. These proceedings under HC 3278/21, therefore, did not have the effect of interrupting the running of prescription.”
The judge said no evidence was adduced by Musindo to support the assertion that he was unable to prosecute his matter due to illness that prevented him from acting in his best interests.
“The fact that the plaintiff was advised of his medical expenses on February 15, 2022 does not interrupt the running of prescription. Such medical expenses are best dealt with under the appropriate portion of future medical expenses,” Justice Deme ruled.
“It is apparent that medical expenses for victims of road accidents may continue to accrue for some time. A diligent and vigilant litigant would claim future medical expenses under such circumstances to avoid the prescription of the proposed claim.”
He also noted that public policy dictated that matters between parties should be brought to finality within the prescribed time lines, failing which the litigant may lose the right to sue.
“Litigation must never be an eternal right without regulated time frames. Failure to have such cut-off time frames will result in endless suits,” Justice Deme said.
“It is my opinion that the plaintiff failed to persuade me to have a departure from an ordinary practice which dictates that costs follow the outcome.”
Musindo had submitted that he was employed as a driver before the accident and that the injuries he suffered as a result of the accident had negatively impacted his life.
He also submitted that Kazambara admitted liability for the accident, with his employer accepting that they would compensate him as they were vicariously liable for the driver’s actions.
Musindo also claimed that Mukumba had offered him US$3 000.
In defending the application, Mukumba and Kazambara, however, raised a special plea of prescription.
They acknowledged that while it was common cause that the accident did occur on April 12, 2018 Musindo was sluggard in his approach by not timeously prosecuting the matter.
They further argued that Musindo’s failure to prosecute the matter within time could not be held against them hence the present proceedings should therefore fail.
Mukumba and Kazambara also argued that Musindo was not candid with the court as he failed to mention to the court that he had initiated proceedings in June 2021 under case number HC 3278/21, which proceedings were then abandoned because they were fatally defective.
The defendants prayed for an order for the upholding of the special plea of prescription and consequently for the dismissal of the claim.
Musindo had also argued that prescription was interrupted by the litigation process which he commenced in June 2021 when he instituted summons against the defendants in case number HC 3278/21.
He reiterated that as a result of the accident, he suffered severe and critical injuries and was hospitalised for more than six months. He also argued that the cause of action was completed on or around March 10, 2020.
This he alleged was because he received his first medical report around July 2018, then he had follow-up check-ups and only received his second medical report on or around March 10, 2020.
Musindo argued that the special plea raised by the defendants was nothing but a dilatory technique amounting to abuse of the court process.
