Businessman and politician William Kabogo risks being committed to a six months civil jail over Sh3.4 million he owes a Mombasa matatu tout whose leg was amputated following a gruesome accident involving his vehicle.
This is after a Mombasa court issued a hearing date for an application in which the victim, Joseph Matano Makanga, wants him committed to civil jail for failing to settle the debt six years after the matter was concluded.
“Take notice that the matter has been scheduled for hearing of notice to show cause dated June 11, 2021 on November 22. Take further notice that in default of your attendance, the court will proceed to hear the said suit, your absence notwithstanding at your cost,” the notice to Mr Kabogo reads in part.
The accident occurred in 2009 in Changamwe area when a vehicle that Mr Kabogo and two others were travelling in knocked down Mr Makanga, leaving him with permanent injuries.
According to the court records, the vehicle KAM 997H was on the fateful day being driven by Joseph Mwahuru when the accident occurred.
A Mr Joseph Gitau was also in the vehicle.
Through his lawyer Mathew Nyaben, Mr Makanga’s evidence is that on August 6, 2009, he was going about his business at a place called Bokole when he heard someone raising an alarm about a person who was being killed.
He then saw the vehicle speeding towards him.
“I attempted to evade the vehicle but I fell down. It ran over my right leg and disappeared,” he recalled.
Mr Makanga said he was picked up from the accident scene and rushed to the hospital where he stayed for two weeks.
“My injured leg was amputated,” he said.
The medical report produced in court showed that the complainant suffered permanent injuries. A crush injury and amputation of the right leg were confirmed and he could only walk with the aid of two clutches.
The injuries were described as multiple and severe bone joint and soft tissue injuries.
Court records show the complainant healed but with resultant permanent disability of 65 per cent.
This rate of disability was said to be due to the amputation, attendant embarrassment and loss of esteem as well as difficulty in enjoying his conjugal rights.
“My capacity to work also reduced thereby making me dependent on others,” he said.
These injuries also left him to depend on prosthesis which requires annual maintenance.
He complained to the court that he used to work as a turn boy but can no longer do the same work due the accident.
He attributed his injury to the vehicle’s driver saying that the vehicle had appeared from behind him.
Mr Kabogo and Mr Gitau filed their defence in the suit, denying culpability and blamed Mr Makanga for not being cautious on the road.
They, however, did not adduce evidence to rebut that tabled by the complainant.
Chief Magistrate Julius Nang’ea who heard the case delivered a judgment favouring Mr Makanaga in 2016.
In the judgment, the magistrate noted that the police abstract report produced in court corroborated the complainant’s evidence of occurrence of the accident and that he suffered permanent injuries.
On ownership of the vehicle, the court said that the unchallenged evidence indicates that Mr Kabogo and Mr Gitau were the owners of the vehicle at the time of the accident.
“The information on the abstract report is deemed sufficient proof of the fact of ownership and more so where its production is not objected to. Mr Kabogo has not testified to challenge the abstract report,” said the magistrate
It emerged that there was an attempt to exonerate Mr Kabogo from the ownership of the vehicle after one of the witnesses in the case told the court that a certificate of insurance that he was in possession of did not mention his name as the owner of the vehicle.
“That certificate has not, however, been produced in evidence for the court’s perusal. The less to say about it the better therefore,” said the magistrate
The court found that Mr Mwahuru was negligent in the manner in which he steered the vehicle and caused the complainant injuries.
“He is wholly to blame therefore. There is nothing to show that Mr Mwahuru was on a frolic of his own at the time. He must have been driving the vehicle for the purposes of Mr Kabogo and Mr Gitau. Both are held vicariously liable for their driver’s tortuous Act,” the magistrate said.
Mr Kabogo and his group were then ordered to pay Mr Makanga Sh1.8 million as compensation.
The compensation covered general damages, lost earnings and the cost of future medical care respectively.
However, six years later, the three are yet to settle the amount, which has since attracted interest with a total amount totaling Sh3, 413,950.
The matter is scheduled for hearing on November 22.