For these accident victims, the face of justice looks ugly

After chasing insurance compensation in court for the last 10 years, families of victims and survivors of one of the worst road accidents in Kenya may never be compensated.

Their hopes were dashed after one of the bus companies involved was absolved by the courts and the owner of the other adjudged guilty had relocated to the US.

On March 29 relatives and the few survivors of the Akamba and Shaggy buses that collided head-on at Kaptungor, some 15km from Kericho on March 29, 2000, met in Machakos to chart the way forward in the face of the predicament. The accident claimed 105 lives.

A lawyer has given them hope that the Shaggy bus owner in the US can still be sued.

After the accident, a case filed against Akamba Bus Services by one of the three survivors, Consolata Akinyi, had given them hope of compensation.

But this hope was dashed when High Court Judge Mary Ang’awa absolved Akamba Bus, arguing that the Shaggy bus was to blame for the tragedy. That was in 2007, seven years after the crash.

Shaggy’s director Bernard Githatu Kamau appealed against Lady Justice Ang’awa’s judgement but failed to pursue his appeal. So Akamba went to the Court of Appeal to have the matter rested. Appellate judges Philip Waki, Emmanuel O’kubasu and Onyango Otieno cleared Akamba Bus Services on July 3, 2009.

“We have considered the application, the affidavits on record and the submissions of counsel. We are satisfied that there has been no explanation for the delay in lodging the record of appeal after service of the notice of appeal. The most glaring omission is the total inaction on the part of the applicant and/or his advocates on record, and such conduct cannot form the basis of any discretion in favour of the 1st respondent (Bernard Kamau). We are also satisfied that further delay in lodging the record of appeal would be prejudicial to the applicant (Akamba Public Road Services) let alone other numerous litigants in the superior court awaiting the outcome of the intended appeal,” the judges said.

This meant that the victims’ only option was to pursue Shaggy.

But Mr Kamau quietly left the country after securing an American resident visa, known as a green card, and is reported to be living in the city of Chicago.

“We tried to follow his movements as we were pursuing compensation from him only to realise that he sold his property and wound up his bus company before relocating to the US,” said lawyer Michael Maweu, who represented Ms Akinyi in the case.

According to Mr Maweu, the case hit a dead end because the insurance company that had insured that Shaggy buses was put under receivership.

“At the time of the accident the United Insurance Company was in trouble and was later put under receivership. With these developments, there was nothing much which could have been done,” Mr Maweu told the Sunday Nation.

Last week Ms Akinyi was in Machakos to visit two families that lost family members to seek new ways of obtaining compensation.

Faith Kinyamasyo, who lost her younger sister Catherine, and Joel Muinde, who lost his daughter Caroline and granddaughter Rosa, said they would not give up the fight for compensation.

“She (Catherine) was working in Kisumu and was travelling home to prepare for, among other things, her wedding to her Tanzanian boyfriend Mohammed Ali. Her life was nipped in the bud, and it has never been the same again for our family, especially our mother,” Ms Kinyamasyo said.

Mr Muinde said the deaths of his daughter and granddaughter devastated his family.

“My wife Catherine Nduku became ill. She died in January 2008,” he said.

Mr Muinde said the government has let down the victims of that tragedy.

“The government’s responsibility is to take care of its citizens. We have been let down,” he said.

The families have launched a fresh quest for compensation. They have created a forum, and they hope to meet next month to chart new ways of pursuing the matter. Ms Akinyi is co-ordinating the initiative.

The chairman of the Law Society of Kenya, southeastern region, Andrew Makundi says all is not lost for the victims.

“If indeed the director of Shaggy Bus relocated to the US, he can still be pursued there. A case can be filed by the complainants in the state where he is based, and the issues of compensation can be addressed. But it is an expensive process,” he said.