[2025] UGCommC 8

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)**

## **CIVIL SUIT NO. 0202 OF 2020**

#### **MUGALAASI HOLDINGS LIMITED::::::::::::::::::::::::::::::::::PLAINTIFF**

#### **VERSUS**

## **1. KAMPALA CAPITAL CITY AUTHORITY**

## **2. NATIONAL WATER & SEWERAGE CORPORATION:::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS**

## **Before: Hon. Lady Justice Cornelia Kakooza Sabiiti**

## **JUDGMENT**

#### **Background**

1. The plaintiff sued the 1st and 2nd defendants, Kampala Capital City Authority and National Water & Sewerage Corporation respectively for; a declaration that the defendants, their employees, and or agents negligently carried out construction/excavation works that caused the collapse and or damaged a portion of the plaintiff's building comprised in Block 12 Plot 213 Nakivubo making it unfit for human occupation; an order directing the defendants to jointly pay Ugx.245,000,000/= which is the cost of demolition of the premises. An order directing the defendants to jointly pay Ugx.663,000,000/= which is the cost of reconstruction of the building that was damaged as a result of the defendant's construction/excavation works. An order directing the defendants to jointly pay to the plaintiff the loss of earnings incurred by the plaintiff to the tune of Ugx.7,200,000,000/=. An order directing the defendants to jointly pay the plaintiff special damages, general damages, interest, and costs of the suit.

## Plaintiff's case

- 2. The plaintiff'is the registered proprietor of land comprised in Block 12 Plot 213 Nakivubo, the land had a building which was opposite KK Trust Hotel and behind Uhuru Restaurant. Around December 2019, the 1st defendant, Kampala Capital City Authority (KCCA) was carrying out road and drainage upgrade works for Namirembe Hill Road and the back access lane. KCCA contracted Abubaker Technical Services and General Supplies Limited to carry out the construction works. During the works, the 1st defendant also engaged the National Water & Sewerage Corporation to upgrade the existing water and sewer system infrastructure within the road corridor. - 3. The 2nd defendant commenced works on the 19th December 2019 and during the process of excavation of the pipeline trench and upgrading of the road, the defendant's agent negligently carried out excavation works so close to the foundation of the plaintiff's building leading to its collapse. As a result of the collapse, the plaintiff commissioned engineers i.e. Kiwanuka & Partners Limited who carried out a further investigation as to the structural integrity of the building. It was the engineer's findings the excavation was so close to the plaintiff's building and was responsible for the collapse of the building and would lead to further growth of cracks resulting in a grave situation in the future. The engineers advised that the building was unsafe for human occupation and it needed decommissioning. - 4. In a letter dated 8th January 2020, the 1st defendant issued a notice requiring the plaintiff to demolish the property as it was risky to the neighborhood and was discharging sewage on the road. The plaintiff then instructed Katuramu & Company Consulting Surveyors, a valuation company to assess and provide

the value of replacing the plaintiff's property that had been destroyed as a result of the defendants' actions. They released a valuation report that indicated that the cost of replacement of the building would be Ugx.663,000,000/=. The demolition cost was at Ugx.245,000,000/=. The plaintiff wrote a letter to KCCA to pay the monies described above but it instead wrote a letter alleging that NWSC was liable for the damage.

#### 1st Defendant's case

- 5. The 1st defendant Kampala Capital City Authority (KCCA) denied liability or any acts of negligence as alleged in the plaint and rebutted the plaintiff's claims. It averred that. that it is responsible for the maintenance and construction of all roads in Kampala. That on the 19th of September 2019, the 1st defendant contracted Abubaker Technical Services to reconstruct and upgrade Namirembe Hill Road and drainage. Upon the commencement of the works, Abubaker Technical Services encountered sewerage spillage with the carriageway and they had to suspended the roadworks. The 1st defendant notified NWSC of the problem and on 9th December 2019, NWSC began the works of excavation to replace a sewer pipe. In the process, a portion of the plaintiff's building adjacent to the road collapsed. Following the collapse, the 1st defendant received a complaint from one Fulgence Kalibbala about the continued flowing sewer and debris, with a request to demolish the rest of the building which posed a damage risk to her building. - 6. On 13th January 2020, KCCA wrote to NWSC informing them of the pending liability arising from the collapsed building and requested an update on the actions to manage liability and mitigate future liability. On the 16th of January 2020, NWSC responded acknowledging that part of the plaintiff's building had collapsed during the excavation works. It is the position of the 1st defendant KCCS that the 2nd defendant occasioned the collapse of the

plaintiff's building and bears sole responsibility since the 2nd defendant was not under the direction, management, or control of the 1st defendant in the execution of its works.

## 2nd Defendant's case

- 7. The 2nd defendant, National Water and Sewerage Corporation (NWSC) also made a defence against the plaintiff's claims. It averred that it is the authority entrusted with the duty to develop the water and sewerage systems in Uganda. On the 7th of November 2019, it was informed by the 1st defendant KCCA of the planned road and drainage works for Namirembe Hill and it was invited to utilize the opportunity to upgrade the existing water and sewer system infrastructure within the road corridor. On the 19th December 2020, the 2nd defendant commenced the works, it did so to improve the already existing water supply and sanitation of that area. - 8. In carrying out the works, part of an unknown property located at Plot 8A Namirembe Hill Road that was found to have been built on the sewer line reserve albeit illegally collapsed. That the collapse of the illegal structure made it impossible to curb the unfortunate eventuality as it led to the stalling of the works. The 2nd defendant also sought the intervention of the 1st defendant in exercising its legal mandate to reign in on the illegal structure. The 1st defendant advised the 2nd defendant that it had issued a notice for demolition of the property on the 8th of January 2020. Owing to the 1st defendant's notice, it had already deemed the structure uninhabitable as it was an old dilapidated building that was cracked, broken in parts, and risky to the neighborhood.

## **Representation.**

9. All the parties were ably represented. The plaintiff was represented by **Kalenge, Bwanika, Kisubi & Co Advocates.** The 1st defendant was represented by its **Directorate Legal Affairs,** and the 2nd defendant was represented by **Kampala Associated Advocates**. Counsel filed their respective submissions which I have read and taken into consideration while determining the issues hereunder.

## **Issues**

- 10. Two issues were adopted at the trial for determination as follows - i) Whether the defendants and or their employees or agents negligently carried out construction/excavation works that caused the collapse and damage of a portion of the plaintiff's building comprised in Block 12 Plot 213? - ii) What remedies are available to the parties?

## **Hearing**

- 11. The plaintiff led three witnesses to prove its case; Engineer Dr. Frederick Kiwanuka a Civil Engineer (PW1), Nicholas K. Ssali (PW2) a Valuation Surveyor and Pius Mugalasi, a Civil Engineer and Managing Director of the plaintiff. The 1st defendant called one witness DW1 Andrew Mukiibi Serunjogi, a supervisor of roads at KCCA. The 2nd defendant called only one witness DW2 Elweru Richard, a Senior Engineer in charge of Sewage Network of NWSC. - 12. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular on any particular person. (**See**

**Section 103 of the Evidence Act Cap 8)**. The burden remains on the plaintiff to prove the case on the balance of probabilities as held in the case of **Yoswa Kityo vs Eriya Kaddu (1982) HCB 58.**

## **Preliminary Objection**

- 13. Before proceeding to the substantive issues of this suit, the 1st defendant raised a preliminary objection that the plaint did not disclose a cause of action as required by Order 7 rule 1(e) of the Civil Procedure Rules. That to prove that there is a cause of action, the plaint must show that the plaintiff enjoyed a right, the right has been violated and the defendant is liable. - 14. However, the plaintiff's counsel submitted that there is a thread connecting the plaintiff's loss to the actions of the 1st defendant. While exercising its statutory functions to maintain and construct roads in Kampala, the 1st defendant engaged the 2nd defendant to perform works within the proximity of the plaintiff's building. The 2nd defendant acted not out of its own volition, but under the instructions of the 1st defendant. - 15. Having considered the arguments presented by counsel, I note that the preliminary objection is inextricably linked to the substantive facts in issue, determining the same would need discussing the liability of parties if any. Accordingly, I will address the preliminary objection in tandem with the substantive issues as I render my decision in this case.

## **Resolution**

**Issue one: Whether the defendants and or their employees or agents negligently carried out construction/excavation works that caused the collapse and damage of a portion of the plaintiff's building comprised in Block 12 Plot 213?**

- 16. The plaintiff in its plaint raised the following particulars of negligence; failure to take the required safeguards before excavating so close to the plaintiff's building. Failure to protect the plaintiff's foundation by either shoring, metallic sheeting, or piling before carrying out the excavation works close to the plaintiff's building hence exposing it to damage and eventual collapse. Encroaching on the foundation of the plaintiff's building. - 17. In the instant case, around December 2019, the 1st defendant was carrying out road and drainage upgrade works for Namirembe Hill Road. The 1st defendant contracted Abubaker Technical Services and General Supplies Limited to carry out the construction. It is DW1's testimony that upon commencement of the road works, Abubaker Technical Services encountered sewerage spillage within the carriageway, and they suspended the works. The 1st defendant notified the 2nd defendant of the problem and requested it to take action. The unrebutted evidence by all parties is that on 19th December 2019, the 2nd defendant began the works on the water and sewer system but while excavating the land, a portion of the plaintiff's building collapsed. - 18. Counsel for the plaintiff submitted that the evidence demonstrates that the defendant's action directly contributed to the damage of its building. While citing the case of **Oil Energy Limited Vs Komakech Civil Appeal No.0111 of 2019,** the plaintiff submitted that both the defendant's negligence led to foreseeable harm, justifying their liability. That the defendants failed to meet the standard of care required in such circumstances given the proximity and the depth of excavation coupled with lack of preventative measures make it evident that the harm to the plaintiff's building was foreseeable. The defendants' actions therefore amount to negligence. - 19. Counsel for the 1st defendant submitted that from the pleadings and evidence, it is clear that the 1st defendant did not in any way lead to the collapse of the

plaintiff's building. That it was not its actions that caused the collapse and therefore liability against the 1st defendant does not accrue. Counsel for the 2nd defendant strongly argued that public bodies do not generally owe a duty of care to confer benefits on individuals. Even where it is owed the same can be excluded by legislation. Counsel citing the **UK case of Poole Borough Counsel Vs GN (through his litigation friend The Official Solicitor and another [2019] UKSC** submitting that duty of care can only arise if it is not expressly excluded by legislation.

- 20. Counsel further submitted that the 2nd defendant's liability is only dependent on proof that its agents acted mala fide towards the plaintiff while performing their duties and where it has not been proved, there lies no liability. The plaintiff has failed to prove to this Court that the 2nd defendant breached the duty of care and skill owed by it to the plaintiff. Counsel cited the case of **Mugisha Felix & 2 others Vs AG HCCS No. 237 of 2019** where the court held that; *negligence is a question of fact, not law, and it is the duty on whom asserts to prove it. That the plaintiff did not present factual evidence of negligence through its witnesses.* - 21. The court had an opportunity to visit the locus, however, at the time, the suit property had been demolished. It was bare land with a few bricks. The **Black's law dictionary** defines negligence as; *the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for the conduct that is intentionally, wantonly, or willfully disregardful of others rights.* From this definition it is evident that liability in negligence is not based on one acting intentionally or willfully as alluded to by counsel for the 2nd defendant. 22. The authors in **Clerk & Lindsell on Torts, 8th Edition** at page 274 elaborate on four requirements of the tort of negligence as follows-

*The existence in law of a duty of care situation; one which the law attaches liability to carelessness. Breach of the duty of care by the defendant; that it failed to measure up to the standard set by law. A causal connection between the defendant's careless conduct and the damage. That the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.*

23. Further, the Court in the case of **Oil Energy Limited Vs Komakech Civil Appeal No.0111 of 2019** held that;

*"Negligence is proved by satisfying a three-part test: the existence of a duty of care owed to the plaintiff by the defendant; a breach of that duty by falling below the appropriate standard of care; damage caused by the defendant's breach of duty that is not too remote a consequence of the breach. "Wherever one person is… placed in such a position with regard to another that everyone of ordinary sense… would at once recognize that if he did not use ordinary care and skill… he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger" (see Heaven v. Pender [1883] 11 QBD 503). A person must take reasonable care to avoid acts or omissions which he or she can reasonably foresee would be likely to injure his or her neighbour."*

*The method of determining the existence of a duty of care is the so-called "neighbour principle." "Who then in law is my neighbour?… persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected so when I am directing my mind to the acts or omissions in question" (see Donoghue v. Stevenson [1932] AC 562). The defendant should contemplate that his or her actions may have an effect* *on potential plaintiffs. Therefore, where possible harm is foreseeable, a duty of care then exists."*

- 24. Upon the evidence presented in this court, I have reviewed the pictures, the excavation alluded to by the 2nd defendant was quite proximate to the plaintiff's building. DW 2 corroborated this in his statement and also during cross-examination that the sewerage pipe was only one meter away from the plaintiff's building. This fact alone demonstrates the standard of duty of care that was required by the 2nd defendant to exercise while executing its works due to the foreseeability of significant damage that would be caused to the plaintiff's building. Clearly, based on the neighbor principle, and the facts before the court, the 2nd defendant owed a duty of care towards the plaintiff given its actions would directly affect the plaintiff. The duty of care necessitated the 2nd defendant to have contemplated and devised ways to prevent potential damage to the plaintiff's building when excavating in close proximity especially one meter away. - 25. The question to consider would be whether the defendants took all possible steps to mitigate the likely damage or prevent it from happening rather than the fact that it actually happened. DW2 testified that the works were carried out using a back-hoe excavator machine to safely open the existing sewer because of the loose soils however, during cross-examination, he testified that they did not navigate the existing building for any cracks and they did not assess the potential impact but insisted that the building was old. There is no evidence to demonstrate the 2nd defendant's efforts to mitigate the possible damage to the plaintiff's building. The fact that the building was old and that 2nd defendant was performing its statutory duties, does not extinguish the 2nd defendant's duty to exercise reasonable care during the excavation works. If

anything the 2nd defendant was required to exercise extra caution given that the building was old.

- 26. Regarding the claim of negligence against the 1st defendant, I am unable to establish a causal connection between the 1st defendant and the alleged negligence. At the outset, the 1st and 2nd defendants are two distinct statutory corporations established under different statutory instruments. The 2nd defendant's primary function is to develop, operate, and maintain the water and sewerage systems in Uganda. By DEX.1 a letter dated 7th November 2019, the 1st defendant notified the 2nd defendant of the road and drainage system upgrade works for Namirembe Hill Road and requested it to utilize the opportunity to upgrade the existing water and sewer system infrastructure within the road corridor, relocate all service lines running within the drainage system, and raise all sewer manholes to final road surface level. No evidence was presented by the plaintiff to indicate that the 2nd defendant was an agent/or an employee of the 1st defendant to accord vicarious liability. Therefore, the excavation to upgrade the sewerage systems is the 2nd defendant's statutory duty, independent of that of the 1st defendant. - 27. I find that no duty of care has been established between the plaintiff and the 1st defendant and consequently, no liability in negligence arises. It is the 2nd defendant that owed a duty of care to the plaintiff as the damage caused was reasonably foreseeable. The 2nd defendant breached the duty of care by failing to take adequate precautions to prevent the damage to the plaintiff's building. From the evidence adduced in court the 1st defendant had suspended their works to allow for the 2nd defendant to to rectify the sewage spill in the road carriage There was no evidence led to show that the 1st defendant's road works had impacted directly on the state of the building or contributed to its collapse.

## **Issue 2: What remedies are available to the parties?**

- 28. Following from the findings under issue one above, the 2nd defendant was negligent while excavating and caused the collapse of part of the plaintiff's building. The plaintiff has not proven the claim as against the 1st defendant and it is dismissed with costs. - 29. It is noted that the plaintiff later demolished the entire building after getting a KCCA Demolition order that it posed a security risk and was no longer fit for human habitation. The 1st defendant wrote a letter dated 8th January 2020 PEX.4 to the plaintiff to demolish its building for reasons that it was an old building cracked and broken in parts which was risky to the neighborhood and the inhabitants/security and tenants. It was also discharging sewage into the road. - 30. From the testimony of PW1, it was evident that the structure was quite old having been built in the 1960s and by 2020 it was about 60 years. It also came up in evidence that the building had cracks, structural weaknesses and was not well maintained as seen from the sewage that was oozing from it. A careful examination of the photographs A to P confirms that the building was in a state of disrepair and the collapse of a small portion of the structure was the final nail to the structural integrity of the overall building's pre-existing condition. It is pertinent to note as indicated in evidence that the portion that collapsed was only a fraction of the behind part of the plaintiff's building. The biggest part remained intact as seen in picture N. This does not in an y way negate the fact that damage was occasioned to the property of the plaintiff but gives a wider context to the remedies available. Possibly, had the building had less pre-existing structural challenges the remedial actions to the remaining structure may not have required the total demolition but could have resulted

in less drastic action or renovations. Having this in mind, I will proceed to determine the remedies available to the parties.

- 31. The principle that governs special damages is that it must be specifically pleaded and strictly proved. See **Musoke v Departed Asians Property Custodian Board & Anor** [1990-1994] 1 EA 419 where it was stated that *special damages must always be explicitly claimed on the pleadings, and at the trial, it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant's conduct.* - 32. The plaintiff adduced evidence of a Valuation Report, PEX.5, to support the claim for compensation of the property affected. The total of the compensation claim is Ugx.663,000,000 with UGX 550,000,000 being the replacement cost and 30% disturbance allowance of Ugx 153,000,000. Given the earlier observations on the pre-existing state of the building I exercise my discretion to award only 50% of this claim of UGX 330,000,000 - 33. The plaintiff adduced evidence that it engaged Nile Impex Construction, PEX.7, to estimate the demolition cost which was valued at Ugx.245,000,000 for a period of one week. Whereas the quotation was provided there was no evidence of the actual payment made. However, the locus visit established that the structure was no longer standing since there was only an empty plot. For this reason I will only allow 75% of the quotation of Nile Impex Construction making it Ugx 183,750,000 - 34. Counsel for the plaintiff also claimed pre-trial loss of earnings and submitted that the plaintiff rented out the ground floor at Ugx.29,400,000/= for two years. All toilets at the premises he rented at Ugx.15,000,000/= starting 1st June 2019. Rented out the entire first floor at a monthly rent of Ugx.29,000,000/= starting 1st June 2019. Counsel for the 2nd defendant

opposed this claim asserting that there is no evidence of the plaintiff's payment of rental taxes and that the amounts claimed for rent are fictitious.

- 35. The plaintiff adduced tenancy agreements PEX.14, PEX.15, and PEX,16 which indicate rental incomes. PEX.14 indicates a tenancy agreement between the plaintiff and a one Fred Bwayo dated 1st June 2019, at Ugx.29,400,000/= per month for two years. PEX.15 indicates a tenancy agreement between the plaintiff and a one Ssekitoleko David dated 1st June 2019 at 15,000,000/= per month for two years while PEX.16 indicates a tenancy agreement between the plaintiff and a one Ivan Mukaaya dated 1st June 2019, at 29,000,000/=per month for two years. Given that the City Authority had issued a statutory notice for demolition due to health and security risks, I am of the view that the possibility of earning high income streams from such a structure is remote . I find that the plaintiff's claim to be awarded Ugx.7,200,000,000/= in lost earnings is grossly exaggerated. I will therefore make a provision for loss of minimal income and include it with the award of general damages. - 36. The plaintiff also prayed for general damages As previously found, the 2nd defendant breached its duty of care and negligently led to the collapsing of the plaintiff's building and this entitles the plaintiff to an award of damages. I exercise my discretion and award general damages of Ugx.300,000,000. - 37. Regarding interest, the awarded special damages shall attract an interest of 20% per annum. from December 2019 until payment in full and the general damages will attract interest of 8% per annum from the date of judgment until payment in full. - 38. With regard to costs, **Section 27(2) of the Civil Procedure Act,** provides that costs of any cause follow the event unless otherwise ordered by the court. The

plaintiff being the successful party in this case, is entitled to the costs of the suit and they are allowed.

- 39. In the final result, judgment is entered for the plaintiff against the 2nd defendant for orders that: - i) The 2nd defendant to pay as special damages the replacement cost of Ugx 330,000,000/= (three hundred and thirty million shillings). - ii) The 2nd defendant to pay as special damages of the demolition costs of Ugx.183,750,000/= (One million eighty three thousand seven hundred fifty shillings) - iii) Interest of 20% per annum on (i) and (ii) above from December 2019 until full payment. - iv) The 2nd defendant to pay the plaintiff general damages of Ugx 300,000,000/= (three hundred million shillings only). - v) Interest of 8% per annum on the general damages from the date of this judgment until full payment. - vi) Costs of the suit are awarded to the plaintiff.

It is so ordered.

Signed and uploaded electronically in ECCMIS this 31st day of January 2025

**Cornelia Kakooza Sabiiti Judge**

**31/01/2025**