Corrupt legal system a tragedy for accident victims

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

Accident victims are losing out on compensation owing to a sluggish system that is often open to corruption.

Ill-prepared lawyers, misplaced files, and a thin staff complement of judicial officials, all conspire to deny hundreds of victims of accidents (roads and industrial) a livelihood.

Yet, even when the courts finally deliver judgment, the award — the whole or part of it — risks being swindled by dishonest lawyers and insurers. And as if that is not enough, not much is left after lawyers take their fee.

The Advocates Complaints Commission, the Catholic Justice and Peace Commission and a host of human rights groups say they have been inundated with complaints from frustrated individuals unable to get compensation for injuries sustained on the roads and in factories. They don’t know where to seek help.

“We have had 36 cases since last year, mostly involving lawyers who won’t release money to clients,” says Boniface

Wanyoike, a human rights’ programme officer with the Kitale Catholic Justice and Peace Commission.

“Lawyers deny having received any compensation money even when insurers say they have paid.”

Some accident victims — including half the cases in Kitale — have died before receiving a penny. Others have waited for 15 years only to learn that their lawyers bungled their cases.

A survivor of a road accident that claimed 26 Kenya Canners Ltd employees in 1987 is still waiting for compensation — 21 years on.

His case comes up in court today, but even if he is finally compensated, it will be a bit too late as his children dropped out of school because his inability to earn a living after the accident.

Mr Isaac Jomo Odinga has spent Sh750,000 trying to get compensation from a cooking oil manufacturer in Thika for the death of his younger brother, Albert Zedi whose decomposing body was found “hidden in a heap of cartons at the factory’s store”, according to a police report.

He had “an injury on the left leg and blood was oozing from the mouth.”

Six years later, the family has almost lost hope.

“The police, court officials and lawyers are hardly cooperative. I have written letters to the Attorney General, Director of Public Prosecutions and Police Commissioner but nothing is forthcoming,” says Mr Jomo, a tailor in Thika.

“I have even been threatened at gunpoint to drop the case. I cannot even access the court files.”

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.

And the longer a case stays in court, the more costly it is to the plaintiff. Most lawyers demand 30 per cent of the award, in addition to other incidentals like a fee for “opening the file”.

Close down

“In the final analysis, the chances of recovery are lost because of the long time it takes to award the victims and that will be the end of the story,” Mr Wachira says.

“If you cannot enforce a claim against the owner of the car involved in an accident or the insurer, then you are done,” he said.

Woe unto those who are hit by a state-owned vehicle.

“You will eventually get a court judgment, yes. But the problem is enforcing it against the Government,” said Mr Wachira.

“The Government is not known for being prompt at paying up,” he said.

Some victims die before they see a penny of their money.

Mr Ramji Harji Kimji’s case is a typical example. By the time Judge Mary Ang’awa was delivering her ruling, Mr Kimji had died.

He died on August 16, 2004 — about 14 years after the accident in which he sustained injuries and nine years after seeking the court’s help to get compensation.

Since died

Two years later, the owner of the car asked the court to dismiss Mr Kimji’s case “as it had abated”.

Mr Enock Segoro was awarded Sh400,000 for a fracture of left tibia and fibula and concussion he sustained in an accident on his way from Machakos on March 22, 1991. But it was the wife who would eventually receive the award on May 3, 2001 as Mr Segoro had since died.

“The plaintiff died, I believe, in another road accident,” said the judge.

Doctors and lawyers also contribute to victims’ misery by giving a wrong assessment of the injuries sustained.

Ms Joyce Wanjiru, another survivor in the accident in which 26 Kenya Canners workers died, was awarded Sh100,000 instead of the Sh1.2 million she had sought as compensation because her lawyer listed some injuries she did not sustain.

“The medical report by the doctor revealed serious anomalies namely, stating injuries that in fact were never sustained,” ruled Judge Ang’awa, on June 2, 2004. “I believe this affects the plaintiff’s case considerably.”

Now rushing

The deluge of complaints from disenchanted accident victims and their dependants has forced authorities to try and find ways of remedying the situation.

The Judiciary is now rushing to clear cases arising from accidents that occurred in the late 1980s and early 1990s, according to sources at the Law Reform Commission.

Sadly though, it is unlikely the situation will improve soon as the Judiciary is hamstrung by a thin workforce.

Elsewhere, the Law Society of Kenya has moved to “restore public confidence in the profession”, according to chairperson Okong’o O’Mogeni.

He has established the LSK Trust Fund that will benefit victims of dishonest lawyers. “Once the tribunal makes a decision, LSK issues the cheque.”