[2025] UGHC 149

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

#### HCT-23-LD-CS-0048-2024

#### (FORMERLY MUBENDE LD-CS NO.031 OF 2022)

#### FLAVIA KYOMUHENDO MUSIITWA

(Widow of the late Dr. Musiitwa Mugwanya :::::::::::::::::::::::::::::::::::

Micheal & Administratrix of the estate)

#### **VERSUS**

# KIBOGA DISTRICT LOCAL GOVERNMENT:::::::::::::::::::::::::::::::::::

#### BEFORE: HON. MR JUSTICE KAREMANI JAMSON, K

#### **JUDGMENT**

## Introduction.

Flavia Kyomuhendo Musiitwa (hereinafter referred to as the plaintiff) brought this suit under the provisions the Workers Compensation Act and the Law Reform (Miscellaneous Provisions) Act against Kiboga District Local Government (hereinafter referred to as the defendant) seeking special damages, general damages, interest and costs of the suit.

# **Brief facts.**

The brief facts of the case as can be extracted from the plaint are that the plaintiff is a widow of the late Dr. Musiitwa Micheal Mugwanya (hereinafter referred to as the 'deceased'). That the deceased was employed by Kiboga District Local Government as the District Medical Officer at the time of his demise. It is alleged that the deceased contracted covid-19 while on duty upon examining a patient identified as Magret Ggulu who was later diagnosed with the same disease. Upon contracting the Covid-19, the deceased was transferred to Mulago

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National Referral hospital where he later met his demise due to the complications associated with the infection. The plaintiff lodged a claim for compensation with the defendant who was the employer of the deceased but the said claim was not satisfied thus bringing this action.

In its written statement of defence, the defendant contended that Covid-19 was prevalent all over the world and classified as a pandemic. That the demise of the deceased was as a result of an unexpected and unpredictable hazard of his trade for which the defendant was not liable and that there was no proof that the deceased contracted covid-19 from the work place and not any other place.

#### Representation.

The plaintiff was represented Mr. Tom Mbalinda of M/S V. Agaba Advocates and Legal Consultants while the defendant was represented by Mr. Mukama Allan from the Attorney General's Chambers

## Issues for determination

- 1. Whether the suit was properly brought under the Workers Compensation Act. - 2. Whether the deceased contracted covid-19 in the course of his employment. - 3. Whether the defendant is liable. - 4. What are the remedies available to the parties?

#### **Burden and standard of proof**

The legal burden of proof in civil matters lies upon that person who would fail if no evidence was given at all on either side. See: Section 102 of the Evidence Act cap 8.

In this case the burden lies on the plaintiff to prove her case against the defendant. The standard of proof in civil matters is on a balance of probabilities. See: **Sebuliba V Co**operative Bank Ltd (1982) HCB 129, Nsubuga V Kavuma (1978) HCB 307.

#### Evidence presented.

The plaintiff led evidence of two witnesses that is, **Dr. Tebandeke Francis (PW1)** and **Flavia** Kyomuhendo Musiitwa (PW2)

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The palintiff presented the following exhibits.

- Exh P1- National Identity Card of the plaintiff. $\mathbf{i}$ - Exh. P2- Marriage certificate of the plaintiff and the deceased. ii. - iii. Exh. P3(a), P3(b), P3(c), P3(d), P3(e), P3(f), P3(g) – Letters of Appointment on promotion for the late Dr. Musiitwa Micheal Mugwanya. - iv. Exh. P4 – Death certificate of Dr. Musiitwa Micheal Mugwanya. - Exh. P5 Covid-19 test results dated $15/11/2020$ . $\mathbf{V}$ . - vi. Exh. P6 – Claim for compensation dated $20/1/2021$ . - Exh. P7 Defendant's letter to Solicitor General. vii. - Exh. P8 Letter by Solicitor General to CAO Kiboga district dated 9/11/2021 viii. - Exh. P9 Letter from the defendant to plaintiff's lawyers dated $20/12/2021$ ix. - Exh. P.10 Letters of Administration dated $14/4/2021$ $\mathbf{X}$ . - $\overline{x}$ i. Exh P.11 (a), (b), (c) and (d) – Four birth certificates respectively of the plaintiff's children. - Exh. $P.12$ report on the circumstances surrounding the death of Mr. Musiitwa xii. Micheal Mugwanya.

The defendant led evidence of one witness that is Dr. Kasujja Asuman

# Resolution of issues.

#### 1. Whether the suit was properly brought under the Workers Compensation Act.

#### **Submissions**

The learned counsel for the plaintiff submitted that whereas it was an agreed fact that the deceased was employed by the defendant at the time of his death and that he had died of Covid-19, there was a feeble attempt by the defence to deny that the plaintiff's husband died of Covid-19. That the death certificate also shows that the deceased died of Covid-19. That the position of the law is that agreed facts cannot be brought in issue in a suit after the scheduling conference. Counsel cited the case of Administrator General V Bwanika James and ors SCCA No. 7 of 2003.

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Counsel further submitted that the suit seeks compensation for death arising out of a disease contracted while discharging duties as an employee of the defendant and that covid-19 is covered under section 4(1) and item 39 of the $3^{rd}$ schedule to the Workers Compensation Act. Further that the deceased having been an employee of the defendant and having contracted covid-19 in the course of employment and died, the suit is properly brought under the provisions of the aforementioned laws.

On the other hand, the learned counsel for the defendant submitted that the suit was wrongly brought under the Workers Compensation Act for reasons that the matter was instituted in a court that is not seized with jurisdiction to entertain the same, that procedures set out under the Workers Compensation Act were not complied with and that covid-19 is not a scheduled disease justifying the grant of compensation under the Workers Compensation Act.

## Determination by court

This suit was brought under the provisions of the Workers Compensation Act (WCA) and the Law Reform (Miscellaneous Provisions) Act.

I will resolve this issue by creating sub-issues to resolve the objections raised by the defendant.

# a) Whether this court has jurisdiction to entertain this case.

Counsel for the defendant contended that Section 9(1) of the WCA provides that the procedure for bringing a claim under the WCA which is commenced with a notification of the employer.

That under **Section 14(1)** of the Act, if the employer does not agree to the compensation, an application shall be made for enforcing a claim for compensation to a court having jurisdiction.

Counsel further submitted that **Section 2 of the WCA** defines court to mean a Magistrate's court presided over by the Chief Magistrate or Magistrate Grade One. That since the instant suit is not an appeal, it is erroneously instituted in the High Court and a party cannot ordinarily invoke the inherent jurisdiction of the court under Section 98 of the Civil Procedure Act (CPA) if another express remedy exists. Counsel cited the case of **Alcon International**

Ltd V Kasirye Byaruhanga and Co Advocates [1996] HCB 61 as cited in the case of Burehenda Irene V Tumukunde Jolly Misc. Appn No. 083 Of 2017

The learned counsel for the plaintiff on the other hand invited court to find that the suit is saved by the inherent powers of court and unlimited jurisdiction under section 98 of the CPA and Article 139(1) of the Constitution of the Republic of Uganda. Counsel for the plaintiff also referred to the novel nature of the current case with no prior decided cases regarding a claim arising from death of a medical practitioner as a result of covid-19 which is not specifically mentioned in the scheduled disease in the WCA.

## Analysis.

Oxford dictionary of law $5^th$ edition defines jurisdiction as the power of court to hear and decide a case or make a certain order.

Jurisdiction is a creature of statute and is only granted by law. If proceedings are conducted by a court without jurisdiction, they are a nullity and the award or judgment arising from proceedings of court without jurisdiction is also a nullity. See: Desai V Warsama (1967) EA $351.$

As rightly submitted by counsel for the defendant, the WCA provides that claims under the Act shall be instituted in a Magistrate's Court presided over by the Chief Magistrate or Magistrate Grade One.

However, Article 139 (1) of the Constitution and Section 14 of the Judicature Act grants the High Court unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the Constitution or any other law.

Further, Section 98 of the CPA provides that nothing shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

In the case of Ssentamu Joseph versus Jibu Corporate Uganda Limited Civil Suit No.051 of 2021 at Civil Division of High Court (unreported) where a similar issue was raised it was held that the High Court is vested with original unlimited jurisdiction by virtue of Article 139 of the Constitution. That it is further the law that provisions of a statute to oust the jurisdiction

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of the High Court as provided for in the in the Constitution it must state so expressly or by clear implication. That the same cannot be presumed.

In the case of Engineer John Eric Mugyenzi versus UEGCL Court of Appeal Civil Appeal No.167 of 2018 in which a similar issue of "*appropriate court*" referred to in Section 93 of Employment Act arose, the Court of Appeal held that the expression Employment Act in the said provisions means a court of judicature or a subordinate court and does not refer to the Labour Officer or Industrial Court. That therefore no basis for the defence counsel to argue that the trial of a tort arising out of an employment contract is restricted to a magistrate's court under the Section 93 (6) of Employment Act.

There is therefore nothing in the law that ousts the jurisdiction of this Court to hear and determine any matter before it for ends of justice to be met. There is nothing shown that the cited Act restricts the jurisdiction of this court from handling the matter at hand.

The case of **Burehenda Irene V Tumukunde Jolly (supra)** cited by counsel for the defendant wherein the court referred to the case of **Alcon International Ltd V Kasirye Byaruhanga and Co Advocates** (supra) is distinguishable from the current case.

In this case, this court is being invoked as a court of first instance and it has to exercise its unlimited original jurisdiction.

I therefore find that this court has jurisdiction to entertain this case.

- (b) Whether there is non-compliance with the procedures set out under the Workers Compensation Act. - (c) Whether covid-19 is a scheduled disease justifying grant of compensation under the workers' compensation act.

I will evaluate these two sub-issues together because counsel's submissions on them are related.

I will first deal with whether covid-19 infection is a scheduled disease or not under the Workers Compensation Act.

Section 2 of the Workers Compensation Act cap 233 defines an injury to include an accident and a scheduled disease.

Learned counsel for the plaintiff submitted that covid-19 is a scheduled disease falling under item 39 of the third schedule (now second schedule) to the Act which provides for any other infection or infestation. This interpretation is disputed by counsel for the defendant.

It is not in dispute that covid-19 as a disease is not specifically or particularly laid out verbatim in the list of scheduled diseased under schedule 2 of the WCA.

The Oxford Advanced Learner's Dictionary defines an infection as the act of causing or getting a disease. It can also refer to an illness caused by a virus or bacteria that affects one part of the body.

According to the National Guidelines for Management of Covid -19 issued on 23/4/2020 by the Ministry of Health-Uganda, Covid -19 also known as the corona virus disease was stated to mean the Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), a new virus that had not been previously identified in humans and therefore no population-level immunity existed. According to the guidelines, the virus is highly transmissible by way of droplet infections attacking the respiratory, intestinal and brain tissues and the Infection from SARS-CoV-2 results in coronavirus disease (COVID-19) which manifests along a spectrum ranging from mild to severe symptoms; in severe cases, death can occur due to complication from the disease

I would like to take judicial notice of the fact that covid-19 was a virus that led to a World pandemic from the year 2019. It is also a fact that traces of the said virus or disease still exist up to date although it is better managed and has a quick treatment response.

The main objectives of the National Guidelines for Management of Covid -19 were;

- 1. To provide guidance on clinical management of the COVID-19 cases in context of existing infectious diseases including Nutritional and Psycho-social Support. - 2. To provide a standardized package and pathway that will support timely decision making for management of COVID-19 cases in context of existing Infectious diseases.

Mani - 3. To detail the measures necessary to protect hospital staff, patients and visitors/caregivers. - 4. To provide guidance on the management of other disease conditions and patient groups such as pregnant and breastfeeding women.

From the objectives of the guidelines, what can be inferred is that the corona virus disease despite being a new virus, was categorized in the context of infectious diseases.

This makes the said disease to fall under Item 39 of the Second Schedule to the WCA which provides for 'any other infection or infestation'.

I therefore find that covid-19 is a scheduled disease justifying grant of compensation under the Workers Compensation Act.

I will now proceed to the issue of the certificate from a medical practitioner to prove that the death of Dr. Musiitwa was caused by any scheduled disease as per Section 27 (1) of the WCA

Counsel for the defendant submitted that in this case, no certificate from a medical practitioner was adduced by the plaintiff that the death of Dr. Musiitwa was caused by any scheduled disease as per Section 27 (1) of the WCA.

Further that **Section 27 (3)** provides that the said certificate copy shall be given to the employer and the District Labour Officer which was not done and therefore there is no evidence that the deceased succumbed to is a scheduled disease that would give rise to a claim for compensation

**Section 9 of the WCA** provides that compensation may not be payable unless notice of the accident has been given to the employer but no notice is required where it is shown that the employer was aware of the accident or disease at or about the time it occurred or when the symptoms became evident.

PW1 Dr. Tandeke Francis a senior medical officer who at the time of the deceased's death was working as the Health Sub-District Manager Kiboga District adduced evidence to prove that he compiled a report (Exh. P.12) surrounding the death of Dr. Musiitwa Micheal Mugwanya. That the said report was compiled at the request of the Chief Administrative

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Officer - Kiboga District. This showed that the deceased's employer Kiboga District Local Government was well aware of the deceased's death and the possible cause.

I noticed that the witness (PW1) during cross examination stated that he did not personally examine the deceased and his report was based on the information given to him by the widow of the deceased and inquiries he made from Kiboga Hospital staff.

Much as this was the case, the evidence of the report was further corroborated by Exh. P.5 which is the covid-19 test results of the deceased by Makerere University College of Health Sciences showing that the deceased tested positive for covid-19 and $Exh$ . P4 – the death certificate of the deceased showing the cause of death to be acute respiratory distress, covid- $19.$

The certificate referred to **Section 27 of The Workers Compensation Act** is not particular on the form of certificate but it is very evident that the said Exh. P2, Exh. P4 and Exh. P5 as shown above prove that the deceased died from the corona virus disease and that the deceased's employer was aware of the same.

Based on the above findings, it is my finding that the suit was competently brought under the Workers Compensation Act. Issue one is answered in the affirmative.

# 2. Whether the deceased contracted covid 19 in the course of his employment.

PW2 Flavia Kyomuhendo Musiitwa the wife to the deceased testified that her husband returned to their home in Kampala from work in Kiboga on $13/11/2020$ . He later received a call from the Covid response team from Kiboga informing him to isolate himself because the patient he had worked on known as Margret Ggulu had tested positive for covid -19. That on $15/11/2020$ , the deceased also tested positive for covid-19.

In rebuttal to this evidence of PW1, DW1- Dr. Asuman Kasujja a Principal Medical Officer /Medical Superintendent Kiboga Hospital averred that the deceased was his supervisor at the time of his death and that his duties were manly administrative and did not involve interacting with patients. That he was not aware of any report made by Kiboga General Hospital about the deceased's death. Further that the hospital records show no patient known as Margaret

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Ggulu who was admitted as a Covis-19 patient as at the time the hospital was not registering Covid-19 cases. $\Box$

It was an agreed fact that the deceased was the District Health Officer (DHO)- Kiboga at the time of his death. DW1 stated that the deceased was his supervisor which implied that the deceased accessed the hospital where DW1 was working. Further, PW1 in his evidence stated that he was working with the deceased at Kiboga Hospital at the time of his death. He further stated that the deceased had an office in Kiboga Hospital.

To further prove that the deceased contracted Covid-19 from his employment, the evidence of the plaintiff was supported by Exh. P7 which is a letter by the Chief Administrative Officer (CAO), Kiboga addressed to the Solicitor General seeking guidance on compensation of the estate of the deceased. In the said letter the CAO informed the Solicitor General that he had been informed by the Acting District Health Officer (PW1) that the deceased had contracted covid-19 in the course of his duties and died of it. The report of the Acting District Health Officer was also adduced in evidence confirming the same (Exh. P.12).

# **Section 31 of the WCA** states that;

"If a worker who becomes disabled by or dies of any disease mentioned in Schedule 2 to this Act, within the period of twenty-four months immediately preceding the disablement or death, employed in any occupation mentioned in Column $\Pi$ of that Schedule in relation to that disease, it shall be presumed, until the contrary is proved, that the disease was due to the nature of that employment."

PW1 the wife of the deceased stated that her husband was informed to isolate by the response team from Kiboga and he confirmed that he had the infection on 15/11/2020 as reflected in the Covid -19 results. (Exh. P5). The death certificate (Exh P.4) shows that the deceased died on $8/12/2020$ . This implies that the deceased died within 23 days which are within the ambits of the 24 months mentioned in section 31 of the Act.

The defendant did not adduce any evidence to prove that the deceased contracted the Covid-19 virus from anywhere else than from his workplace. Proof in civil matters is only on the balance of probabilities. The plaintiff's evidence measured to this standard

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The plaintiff proved on a balance of probabilities that the deceased contracted Covid-19 in the course of his employment.

### 3. Whether the defendant is liable.

Section 3 of the WCA states that:

"If personal injury by accident arises out of and in the course of a worker's employment, the injured worker's employer shall be liable to pay compensation in accordance with this Act."

**Section 29 (1)** of the same Act further provides that compensation shall be payable by $\mathbf{S}$ the employer who last employed the worker during the period of twenty-four months referred to in Section $27(1)(b)$ .

It was undisputed evidence of the plaintiff that at the time of her husband's death, he was employed by Kiboga District Local Government as the DHO. A copy of his appointment letter was tendered in evidence as Exh. P3(e). This was confirmed by evidence of PW1 who stated that he was working with the deceased at Kiboga Hospital at the time of his death.

I have already found that the deceased contracted the Covid-19 during the course of his employment which resulted into his death. It follows therefore that the deceased's employer who is the defendant is liable to pay compensation for the death of the deceased.

# 4. What are the remedies available to the parties?

#### a) Compensation

In the case of **Kabuusu Henry V Uganda Revenue Authority; CS No. 047 of 2017,** the defendant compensated the plaintiff for the injuries suffered under the Worker's Compensation Act.

Section $4(1)$ of the WCA provides as follows:

"Where the deceased worker leaves any family members who are dependent on his or her earnings, the amount of compensation shall be a sum equal to sixty times his or her monthly earnings, computed in accordance with section 8."

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**Section 8** provides for calculation of earnings. Subsection 1 states that;

"For the purpose of this Act, the monthly earnings of a worker shall be computed in a manner best calculated to give the rate per month at which the worker has been remunerated during the twelve months immediately preceding the accident, and the computation of annual earnings shall be a multiple of twelve of that sum.

Exh. $P3$ (e) which is the deceased's appointment letter shows that the deceased was earning a salary of ugx. 4, 600,062/= per month.

PW1 led evidence to show that the deceased had children and several family members that were directly dependent on his earnings and still need to be supported. That her and the deceased had 4 biological children and birth certificates of the children were tendered in evidence as Exh. P.11(a), (b), (c), (d). This entitles compensation to his family members for the deceased's death

It thus implies that the salary of the deceased must be multiplied sixty times his monthly earnings. A mathematical computation of that shows that the compensation for the deceased's death is UGX. $276,003,720/$ = which is awarded accordingly.

# b) General damages.

General damages are awarded to a party for any loss or inconvenience caused. They are a direct natural or probable consequence of the act complained of and follow the ordinary course or relate to all other terms of damage whether pecuniary or none pecuniary, future loss as well as damages for paid loss and suffering. See: Wakabi Simon V Apollo Kantinti HCCS No. 1245 of 2018.

Exh. P.6, Exh. P7 and Exh. P8 are several correspondences between the plaintiff's lawyers, the CAO – Kiboga district and the Solicitor General respectively in which the defendant was requested to compensate for the death of the deceased but to no avail. The plaintiff stated that as a family, they have been very inconvenienced by the defendant's actions.

I agree that the plaintiff's family has been inconvenienced by the delayed action of not being compensated and have had to go through trial to realize what is due to them. The plaintiff is

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entitled to general damages. In the circumstances I award Shs. 10.000.000= in general damages.

### c) Interest.

The plaintiff's counsel prayed for interest at a rate of 24% per annum at a commercial rate from January 20, 2021 till payment in full.

It is a settled position of the law that interest is awarded at the discretion of court.

In this case, I award interest of 18% per annum from the date of this judgment till payment in full.

# Costs of the suit.

Section 27 of the Civil Procedure Act provides that costs shall follow the event. In this case there is no justification to deprive the plaintiff of the costs. The plaintiff in this suit is entitled to costs. In the circumstances, I grant costs of the suit to the plaintiff.

**Wherefore** judgment is entered in favour of the plaintiff with the following orders;

- a) The late Musiitwa Micheal Mugwanya contracted Covid-19 in the course of his employment that led to his death. - b) The defendant is liable to compensate the plaintiff for the death of the deceased. - c) The defendant shall compensate the plaintiff UGX. $276,003,720/$ = for the death of late Dr. Musiitwa Michael Mugwanya. - d) The plaintiff is granted general damages of SHS.10.000.000 $=$ - e) The plaintiff is awarded Interest of 18% per annum on the amount awarded in (c) above from time of date of this judgment till payment in full. - Costs of the suit are granted to the plaintiff. $f$

I so-order **ONA**

KAREMANI JAMSON. K **JUDGE** $26/3/2025$