Court has issued a six-month ultimatum to Kampala Capital City Authority (KCCA) to cover a life[1]threatening gaping drain created on land belonging to the late Epafura Byoleko based in Makerere, Kawempe division.

The drain that has caused KCCA to lose over sh50m in damages and another figure yet to be established in legal costs to Edward Kanyarusoke, the lawful agent of the late Byoleko, is in Kibuga, Block 38, Plot 20.

In a judgment dated June 14, land division judge Alexandra Nkonge Rugadya further directed KCCA to carry out periodical maintenance of the drainage channels in the city.

“Given all the inconveniences and unquantified able damages suffered by the plaintiff due to KCCA’s failure to maintain the drain, the area became a dumping ground for rubbish and filth making it a breeding ground for mosquitoes and a health hazard not only to the plaintiff but also the community,” Nkonge noted.

The judge observed that the drainage channel under question is wide open, which makes it dangerous and susceptible to abuse by wrong elements in the community and a threat to the right to life by area residents and visitors.

“This court faults KCCA on account of its decision to divert the flow of the drainage water to an area which had not been planned without giving a proper explanation,” Nkonge ruled.

Justifying her decision, Nkonge noted that KCCA failed to give an appropriate response to the serious allegation made that it had changed the drainage system in the area from its planned gazetted position to a new one passing under and/or near Byoleko’s building.

The judge reprimanded KCCA, saying as an authority in charge of Kampala takes blame for its failure to pay attention or take into serious consideration the overall effect and hence violated the right to a healthy environment owed to the residents.

“This court, therefore, finds it absurd that KCCA, which created the problem for the community, was unable to find appropriate solutions for it,” she noted.

Trespass 

KCCA had been sued jointly with Richard Kigozi, who Byoleko accused of being behind the access road across his land, an act he claimed amounted to trespass.

However, the judge absolved Kigozi, saying Byoleko failed to adduce sufficient evidence pinning him.

“The evidence of defense witnesses three and four, which court found no reason to doubt, was that the said access road was created by medical students of Makerere University in 1970 under the leadership of Dr. Olara Otunnu and it has since been referred to as Otunnu Road and expanded into a bigger road with the help of the community yet Kigozi settled on the land in 2014,” the judge noted.

KCCA’S defense 

In its defense, KCCA argued that its role was only to maintain the drain, but it never created it because it has been in existence since 1993.

In November last year, High Court Judge Michael Elubu directed the leadership of KCCA and the Attorney General to explain the progress made to ensure that the dangers posed by unsafe roads, open drainage channels, sewers, manholes, and related infrastructure roads have been addressed within six months.

It followed a public interest lawsuit filed by Legal Brains Trust on behalf of the family of the late Cissy Namukasa and other city dwellers, who have drowned in the open channels and sewers.

Aged 54 at the time, Namukasa died after falling into a flooded drainage channel in Nakawa, a city suburb in May 2019.

Kampala is drained by eight major/ primary channels, which are fed by numerous secondary, tertiary, and quaternary channels of varying capacity.

The lower-lying areas of the city are usually inundated in the event of heavy rains, with residents and road users suffering the after-effects of floods.

What area LC1 says 

Hassan Wasswa, the LC1 chairperson of Kimwanyi zone, where the drain is located, testified that it has existed since 1993 long before Kigozi bought his land and it has been a threat to life since time immemorial.