Corrupt legal system a tragedy for accident victims

• Dishonest lawyers and insurers are some of the hurdles that litter road to compensation

The widow and children are looking up to him to help them get compensation. “They have nothing,” he says.

A plodding judicial system has far-reaching consequences on the administration of justice. Files and exhibits disappear (fraudulently or otherwise) without trace, plaintiffs die before their cases are finalised, and insurers and lawyers conspireto rip off unsuspecting victims.

This is a system which has denied people their livelihood, in which accident victims have to wait for a half a generation to get compensation — and if it does materialise, a sizeable chunk goes to lawyers’ legal fees. It is a system that leaves victims helpless.

Seek to delay

“The delays can be caused by lawyers on either side. The claimant lawyers may not have enough documents, so they dilly-dally to strategise. Defendants’ lawyers may seek to delay the hearing because they are ill-prepared,” says Nairobi-based lawyer Evans Wachira of E.M. Wachira and Company.

“Files are misplaced, either fraudulently or innocently, and it takes time to reconstruct them. Then, of course, there’s congestion owing to a shortage of judicial officers,” Mr Wachira said.

“It is a major problem,” says Dr Anthony Mubisi, a consultant in occupational health and safety.

“Too many things happen in this compensation business: insurers go under or find excuses not to pay up; defence lawyers do their best to ensure the court case stalls; and then collusion between insurers and lawyers makes it almost impossible for the victim to get all or part of the award.”

Dr Mubisi, the director of Workhealth Consultants, adds: “In cases where the matter is settled out of court, some lawyers don’t remit the money, claiming the case has not been finalised.”

This writer examined about 100 court cases of road and factory accidents that occurred between late 1980s and early 2002 and which were referred to either the High Court or Court of Appeal.

Four in every five of them were in court for at least eight years — some have been there for 20 years.

Multiple injuries

A snapshot of the cases:
• Joseph Kirugi was involved in a road accident on Limuru Road on October 30, 1988 and sustained multiple injuries. His lawyer asked for Sh500,000 compensation but Judge J.L.A. Osiemo awarded him Sh302,100 on September 22, 2000 — 12 years later
• Philomena Kithome was injured in an accident at Kola (on Machakos-Makueni Road) on December 12, 1988. Judge Kasanga Mulwa awarded her Sh380,000 on October 6, 2000 — 12 years later.
• Debora Omari suffered multiple injuries in an accident along Kisii-Keroka Road on November 26, 1996 and now walks with a limp. Judge Kaburu Bauni awarded her Sh652,000 on October 26, 2004 — eight years later.
• Raphael Oloo was injured at work on May 13, 1986. At the time, he was earning Sh2,600 a month. Fourteen years later, on January 31, 2001, the court awarded him Sh1.453 million.
• David Njoroge, who was savagely beaten by police in Nyamakima area of River Road on the night of January 15, 1993 was awarded Sh300,000 on January 21, 2003 — 10 years later.
• Agatha Wanjiru Njuguna’s legs were fractured in an accident on Christmas Day in 1988. She filed a suit on December 20, 1991. She was awarded Sh5.37 million on September 22, 2006 – almost 18 years later.
• Rose Muthoni Mbutu had to wait for 13 years for her case to be heard in court because her file got lost at the Nairobi High Court, so the Deputy Registrar asked her to reconstruct it on June 3, 2003. She had gone to court on August 20, 1990.

A court ruling, however, hardly means an automatic pay-out.

Those found liable usually challenge the awards in court, delaying payment. In some cases lawyers receive the money but fail to inform the beneficiary.