Five years after being awarded more than Sh1.4 million for the death of his child in a road crash, Thomas Nyandoro Obwaya is still chasing the money.
Mr Obwayo’s 10-year-old daughter Michelle Kerubo died and his son Emmanuel Nyambene suffered serious injuries when a three-wheeler knocked them down on April 23, 2014.
Mr Obwaya sued the owner of the three-wheeler, Elizabeth Hamisi Titu, and its driver, Mohamed Kalume Mbune.
Three years later, Kwale Magistrate Cosmas Maundu awarded the family the compensation, which was to be paid by Invesco Assurance Co. Ltd.
Because Nyambene did not suffer any permanent disability, the court awarded him Sh100,000 for pain and suffering.
The court also awarded him Sh2,000 in special damages, which was pleaded and proved from the medical report.
For Kerubo, the court awarded the family Sh20,000 for pain and suffering, and Sh150,000 for loss of the expectation of life as she died aged 10.
“The deceased was a minor. I find this amount to be fair compensation and I would award the same,” he said in the judgment dated April 5, 2017.
Mr Obwaya produced in court a receipt for Sh14,800 in mortuary expenses and another for Sh195,000 for transport to prove the funeral expenses he incurred.
“The total amount pleaded and proved is Sh209,800, and I award the same. Mr Obwaya is also awarded the cost of this case,” the magistrate said.
Because the tuktuk was insured, Mr Obwaya returned to the court and filed a declaratory case against Invesco Assurance.
He filed the case through his advocate, Mr Mathew Nyabena.
Mr Obwaya told Kwale Resident Magistrate Christine Kemuma that the company is bound by law to settle the claim under the provisions of the Insurance (Third Party Motor Vehicle Risks) Act.
“The company was not served with the statutory notice by the plaintiff, and or their advocate on record,” the company said.
Ms Kemuma ruled that documentary evidence produced in the case confirmed that the tuktuk was insured by the company, with Ms Titu as the policyholder.
“That being the case, I thus find that Mr Obwaya proved that the company was the insurer of the tuktuk that was involved in the accident,” she said.
“I find that indeed Mr Obwaya is entitled to the fruit of his judgment in the primary suit and that I find the company liable to settle the amount awarded to him,” Ms Kemuma in a judgment dated July 29, 2020.
“In any case, this is a fairly old matter that should be put to rest without undue delay.”
Despite these two judgments, Mr Obwaya is yet to be paid the money. He has made endless trips to his lawyer’s office but he is yet to get help.
“The advocate has been telling me that the money has not been paid. I don’t believe him. I suspect the money has been paid,” he claims.
“I am tired of chasing this money but I need it. It is fair that I get paid what the court has awarded me. He keeps claiming the money hasn’t been paid but I don’t trust him,” he said.
Contacted for comment on the case, Mr Nyabena acknowledged he had provided legal services to Mr Obwaya but told the Nation that the insurance company was yet to settle the claim.
“I have been following up on the matter, but the company has been unresponsive. Each time I visit the company offices I only meet chairs,” he said.
Contacted to confirm the status of the claim, a representative of Invesco Assurance told the Nation that he could not discuss the matter as he was not allowed to speak to the media.
"We do not give such information to third parties. Mr Obwaya's advocate knows what to do if a claim has not been settled," he said by phone.
Another company representative, who did not wish to be named, said the family should follow up the matter through their appointed advocate.
"The only way the family can follow up the matter is through their advocate. (The advocate) knows the procedure to follow to ensure the money is paid," she said and hung up the phone.
The two did not deny or confirm that the claim had been settled.
