Wakilii

Susan Barbara Kibenge v Cementers Uganda Limited [2026] UGHCCD 248

High Court · 2026 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit in negligence for personal injury, with third party proceedings by the defendant against its insurer seeking indemnity
Decision
Judgment entered for the plaintiff against the defendant with special and general damages, interest and costs; the defendant's third party claim substantially failed save for indemnity limited to the unexhausted balance of the Motor Third Party Policy

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Holding

The court held the defendant vicariously liable in negligence where its truck driver, who was never called as a witness (permitting an adverse inference), forced a motorcycle off the road and crushed the plaintiff's foot. Contributory negligence failed: a pillion passenger has no control over the motorcycle and cannot be faulted for the rider's emergency manoeuvre or for her seating position. The plaintiff was confined to her pleaded special damages figures, of which UGX 30,000,000 and USD 5,000 were allowed; general damages of UGX 70,000,000 were awarded for loss of all left toes and 38% permanent disability. Aggravated damages were refused. Public liability insurance does not cover road accidents; a signed discharge voucher barred further claims save for the unexhausted policy balance.

Outcome

Judgment entered for the plaintiff against the defendant with special and general damages, interest and costs; the defendant's third party claim substantially failed save for indemnity limited to the unexhausted balance of the Motor Third Party Policy

Facts

On 13 April 2018 the plaintiff was a pillion passenger on a motorcycle along Old Portbell Road, Kampala. The defendant's cement mixer truck, driven by its employee in the course of employment, was manoeuvring on the same road. The plaintiff's case was that the driver drove at excessive speed, ignored her hand signal, and attempted to overtake without leaving sufficient room, forcing the motorcycle off the road, after which the truck ran over and crushed her left foot. The defendant contended that the plaintiff voluntarily jumped from the moving motorcycle into the truck's path, that there was no contact between truck and motorcycle, and that the rider and motorcycle were unharmed. The truck driver and the motorcyclist were not called as witnesses. The plaintiff lost all toes on her left foot, underwent multiple surgeries and skin grafting, spent over a year in hospital, and was assessed at 38% permanent disability with continuing pain and functional limitation. The defendant paid her medical bills of UGX 44,268,300, reimbursed by the third party insurer under a Motor Third Party Policy capped at UGX 50,000,000, for which the defendant signed a discharge voucher. The defendant also held a Public Liability Policy capped at UGX 2,000,000,000.

Issues

  1. Whether the plaintiff could rely at trial on quantified special damages figures higher than those pleaded, without amending the plaint.
  2. Whether the defendant is liable to the plaintiff in negligence for the acts of its driver.
  3. Whether the plaintiff was contributorily negligent.
  4. Whether the plaintiff is entitled to the special, general and aggravated damages, interest and costs sought.
  5. Whether the defendant is entitled to indemnity or contribution from the third party insurer, and whether the Public Liability Policy applies to a road traffic accident.

Orders

  • Special damages of UGX 30,000,000/= and USD 5,000 awarded to the plaintiff.
  • General damages of UGX 70,000,000/= awarded to the plaintiff.
  • Interest at 8% on the sums under orders 1 and 2 from the date of judgment until payment in full.
  • The defendant shall pay the plaintiff the costs of the suit.
  • The third party shall indemnify the defendant up to the outstanding balance of the Motor Third Party Policy, being UGX 5,731,700/=.
  • The third party shall bear no liability beyond UGX 5,731,700/=.
  • Each party shall bear its own costs in respect of the third party proceedings.

Rules and key headnotes

Negligence — Road Traffic — Standard of Care Owed by Drivers to Other Road Users
A driver owes a high duty of care to all other road users, including a pillion passenger on a motorcycle, and once the possibility of danger becomes reasonably apparent the driver must take all measures to avoid a collision, notwithstanding any breach of traffic rules by the other road user.
Adverse Inference — Failure to Call the Driver as a Witness in a Negligence Suit
Where the driver alleged to have caused an accident is not called to testify, and no reason is given, the court may draw an adverse inference that his evidence would not have supported the defendant's version of events; reliance on sketch maps and vehicle inspection reports cannot supply the missing account of the vehicle's movement at the material moment.
Contributory Negligence — Pillion Passenger — No Control Over Rider or Machine
Contributory negligence must be proved and not merely pleaded, and requires proof that the plaintiff's own negligence contributed to the causation of the accident; a pillion passenger, having no control over the speed, steering or braking of the motorcycle, is not contributorily negligent for the rider's emergency manoeuvre, for failing to restrain the rider, or by reason of her seating position.
Pleadings — Party Bound by Pleaded Quantum — Special Damages Increased at Trial Without Amendment
A plaintiff who quantifies special damages in the plaint cannot rely on higher figures adduced at trial or in submissions without first amending the pleadings; the court will assess special damages only by reference to the pleaded figures and only to the extent they are strictly proved.
Special Damages — Future Medical Costs — Weight of Expert Estimates Based on Stale or No Examination
Estimates of future treatment and prosthetic costs prepared by experts who have not recently examined the claimant, or who cannot prove the source of the prices quoted, are of reduced evidential weight; the court may nevertheless award a reduced sum where the need for further treatment or assistive devices flows naturally from the proved injuries.
General and Aggravated Damages — Personal Injury — Permanent Partial Disability and Loss of Amenities
General damages in personal injury are assessed by reference to the nature, extent and permanence of the injury, pain and suffering, loss of amenities and comparable awards, and a defendant's prompt payment of medical bills does not extinguish liability; aggravated or punitive damages require conduct that is high-handed, malicious or wanton, and mere negligence, however serious the injury, does not attract them.
Motor Third Party Policy versus Public Liability Policy — Discharge Voucher — Contra Proferentem and Double Recovery
Liability for bodily injury arising out of the use of a vehicle on a road falls within motor third party insurance under section 3(b) of the Motor Vehicle Insurance (Third Party Risks) Act, and not within a public liability policy covering business operations at premises; a discharge voucher executed after payment bars further claims under that policy absent proof of misrepresentation, the contra proferentem rule has no application where the policies are distinct and unambiguous, and an insured may not recover twice for the same loss, although an insurer remains liable up to any unexhausted balance of the policy limit.

Legislation cited (7)

Cases cited (24)

  • Interfreight Forwarders Ltd v East African Development Bank Ltd (Civil Appeal No. 33 of 1992)
  • Interfreight Forwarders Ltd v East African Development Bank Ltd (Civil Appeal No. 33 of 1992)
  • Donoghue v Stevenson (1932) AC 562
  • Lucky Winnie v Kiiza Hassan and Another (Civil Suit No. 23 of 2020)
  • Paulo Kato v Uganda Transport Corporation [1975] HCB
  • Blyth v Birmingham Water Works Co. (1856) 11 Ex. 781
  • Muwonge v Attorney General [1967] EA 17
  • Hirani Manji Kanji v Uganda Funeral Services Limited (Civil Suit No. 115 of 2022)
  • Nyende David v KPI Security Services Ltd (Civil Appeal No. 1 of 2014)
  • Acaye Richard v Saracen (U) Limited and 2 Others (Civil Suit No. 63 of 2011)
  • Hadley v Baxendale (1894) 9 Exch 341
  • Storms v Hutchinson [1905] AC 515
  • Uganda Commercial Bank v Deo Kigozi [2002] 1 EA 293
  • Luzinda Marion Babirye v Ssekamate and Others (Civil Suit No. 366 of 2017)
  • Kakubhai Mohanlal v Warid Telecom Uganda (Civil Suit No. 224 of 2011)
  • Rosemary Nalwadda v Uganda AIDS Commission (Civil Suit No. 67 of 2011)
  • George Katendegwa v Samsung Electronics East Africa Ltd
  • Transtel Ltd and Another v Mahi Computers & Appliances Ltd (Civil Suit No. 397 of 2015)
  • Housing Finance Bank Ltd and Another v Igeme Nabeta (Civil Suit No. 228 of 2012)
  • Kakonge v Oriental Fire and General Insurance Co. Ltd (Civil Case No. 376 of 1963)
  • National Insurance Corporation Ltd v Kakugu (Civil Appeal No. 40 of 2015)
  • Cox v Bankside Members Agency Ltd [1995] 2 Lloyd's Rep 437
  • Lord Napier and Ettrick v R.F. Kershaw Ltd [1993] AC 713
  • The "Fanti" and "Padre Island" (1991) 2 AC 1

Full judgment

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Susan Barbara Kibenge v Cementers Uganda Limited [2026] UGHCCD 248 (30 June 2026)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.