The agony of elusive justice for road accident survivors

Purity Karimi woke up one morning for her routine trip to the market. A vegetable vendor, she frequented Wakulima Market for stock which she sold at her grocery in Nairobi’s Umoja estate.

After successfully going about that day’s bargains, she put the vegetables in a basket, carried it on her back and walked to the bus stop for an Umoja-bound matatu.

It was while at Nasiko, the bus stop between Muthurwa and Machakos Country Bus, that the mother of four met a grisly road accident that left with an amputated leg and in crutches.

“A matatu pulled up. It was some few minutes past seven in the morning,” Ms Karimi recounted. “The matatu tout took my luggage into the bus. But, as I was trying to board the matatu, the driver began to drive off pushing me on the road and its back wheel ran over my leg.”

The 36-year-old recalled crying uncontrollably as her leg was trapped under the bus. The driver, upon realising he had caused an accident, jumped out of the vehicle and fled, leaving her leg still trapped under the vehicle’s enormous weight.

AMBULANCE CHASER

It took a passerby to get into the driver’s seat and move the car. She was then taken to Kenyatta National Hospital by other Good Samaritans.
Her sister reported the case to the police where she was issued with an abstract – the document she is now using to chase an elusive insurance compensation.

While at the hospital, Ms Karimi encountered an “ambulance chaser” – a lawyer who goes to accident wards or accident scenes looking for clients – who agreed to represent her in court with a surety she will pay the legal fees once compensated.

But four years later the case is still in court and she only hopes that one day justice will smile her way.

“I stayed in hospital for six months where the bill accumulated to Sh300,000, part of which was cleared by church members, and now there is still an outstanding bill of Sh238,000,” she told the Nation.

“My leg was later amputated at Aga Khan Hospital in September 2016. That bill was also settled by sympathisers. Now I’m back to my business to fend for my children,” she said, adding that her husband left home never to return after he heard that she was involved in an accident.

APOLOGISE

What saddens her is that neither the matatu Sacco nor the matatu owner has ever bothered to look for her and apologise for the pain and humiliation. Police records show that the woman was knocked by Ummoinner matatu, registration number KBQ 783J in May 2013.

Ms Beatrice Omondi, another road accident victim, was travelling to Kakamega on Easy Coach on September 10, 2011.

The bus overturned several times killing a few people and injuring scores others.

“The accident occurred along the Nandi Hills–Songhor road at 2am after the driver lost control of the bus. Most of us were asleep only to be woken up by unusual commotion in the bus. After that, I felt numbness as I tried to lift my legs,” recalled Ms Omondi who spent more than Sh8 million in hospital, a bill which exhausted her family’s resources forcing them to relocate back to the village in Siaya.

Like Ms Karimi, the 52-year-old has been locked in a winding legal tussle with the bus company since 2013. “We sold all our property to settle the medical bills yet to date we have not received even a cent or a mere phone call from the bus company asking the whereabouts of the victim,” said Mr Peter Omondi, the victim’s husband.

CARELESS DRIVING
Over the last few weeks, hundreds of Kenyans have lost their lives in road accidents caused by careless driving, and thousands of others sustained serious injuries which incapacitate them.

Statistics provided by the National Transport and Safety Authority show that there were 2,965 fatalities in 2016 and 2,919 deaths in 2017, while 4,661 and 3,943 sustained serious injuries in 2016 and 2017 respectively.

Legally, the victim’s bills ought to be covered by the insurers under third party insurance liability cover, which is why the government insists that every vehicle must have insurance cover.

Mr Omondi said every time they appear in court the defence team comes up with all manner of excuses forcing the cases to be adjourned. “At one point, the lead defence lawyer said he had been appointed magistrate and could not continue handling the case. The next time we went to court, the lawyer who took over the case said he needed more time to familiarise himself with the case.” said the 72 year-old former expatriate.

ROAD ACCIDENT
Mr Gad Awuonda, the former Nairobi County attorney, said all road accident victims are entitled to compensation under the third party insurance cover so long as they (the victims) were not on the wrong. “Sadly, insurance companies often take their time at the pretext of fact finding when in actual fact they are looking for ways to avoid liabilities,” said Mr Awuonda.

He called on the government to ensure such victims get compensation.
Mr Brian Ondego, an advocate to the High Court, said when an accident occurs the police have to be notified first. “The police then issue an abstract to the victims detailing the name of the driver, the bus Sacco, registered owner of the vehicle, the insurance company covering the vehicle, circumstances under which the accident occurred and who was at fault,” he explained, adding that once the victims had been issued with the abstract his next step was the legal part. He said cases can also drag in court due to backlog.

“It is incumbent upon the insured to notify the insurance company but in most cases the insurance companies ignore the notification,” said the lawyer. “The suit is usually against the driver and the vehicle owner but the defence lawyer is provided by the insurance company.”

INJURED PARTY
Mr Godfrey Kiptum, the head of the Insurance Regulatory Authority, said compensation for injuries sustained during an accident was normally done once the victim had recovered and advised people to have medical cover to ease the burden of hospital bills.

“The current insurance regime in Kenya requires an injured party to file a suit to recover damages in regard of an accident as opposed to the no-fault system where accident victims are compensated regardless of how the accident happened or who was at fault,” he added.

Mr Kiptum further explained that success of road victim compensation is so minimal because accident victims are not party to the insurance contract and are therefore always not aware that they are legally entitled for compensation.

Mr Ondego noted that the cases before the court often drags due to several reason some of which are deliberate while others are beyond the control of the ligating lawyers.

“A case first of all goes to the pre-trial motion to ensure that all the necessary documentation are in well place. At this stage, the case can take close to two years before a hearing date is set,” he says.
“Again, when it comes to hearing, older cases are given preference forcing a case to be adjourned...at times the case is adjourned because the defense lawyer fails to show up on excuse that he’s sick or something. From there the case is adjourned for several months due to huge backlog of cases,” Mr Ondego explained.

ACCIDENT
Godfrey Kiptum, the head of the Insurance Regulatory Authority (IRA), says that compensation for injuries sustained during an accident is normally done once the victim has recovered and therefore advises people to have medical cover such as NHIF to ease the burden of hospital bills.
“The current insurance regime in Kenya requires an injured party to file a suit to recover damages in regard of a motor accident as opposed to the no-fault system where accident victims are compensated regardless of how the accident happened or who was at fault,” he added.

Mr Kiptum further explained that success of road victim compensation is so minimal because accident victims are not party to the insurance contract and are therefore always not aware that they are legally entitled for compensation.

“In most cases, other parties get involved with the aim of ‘facilitating’, but have other interests. For instance the so called ‘ambulance chasers’. They gather all the information and purport to assist the victims who at that moment are more concerned with their health and recovery. By the time the victims realise that there is compensation, either other people have claimed on their behalf or they are time barred under statute,” Mr Kiptum observed.