At the funeral parlour of the Kericho County Hospital mortuary, Betty Cherono welled up with tears as she pleaded for news regarding her husband, Samuel Kimgetich, aged 54, who had a regular habit of lingering around the roadside market at Londiani junction every evening.

The horrifying road accident occurred on Friday evening at Londiani junction, resulting in the tragic deaths of at least 55 individuals, including roadside traders and their customers.

The incident involved a trailer colliding with eight matatus and two private vehicles. 

According to the police, 27 bodies have been identified by their respective relatives, and the process of identifying additional bodies is currently underway at both the Kericho County Hospital mortuary and the Londiani sub-county facility.

“Several families have successfully identified their loved ones, and this agonising process is ongoing within the mortuaries. We will persist until every family member is reunited with their kin,” said Geoffrey Mayek, the Kericho police commander. 

• Death toll in Londiani multi-vehicle road crash rises to 51
• 
  Ruto, Gachagua, and other leaders mourn Londiani accident victims
• 
  Government to relocate roadside markets, says Murkomen

Inquiries

Cherono, who displayed a photograph of her husband on her mobile phone, was still awaiting the opportunity to view his body. 

“My husband was travelling from Bomet town. We had spoken on the phone, and he had informed me to wait for him at the bus stop so that we could return home together,” said the tearful mother of two.

She recounted that when she dialed his cellphone at 7pm, it was switched off. “I started making inquiries, and it wasn’t until around 10pm that I received the devastating news of his death from individuals who knew him,” Cherono tearfully said.

The Londiani Junction centre presented a terrifying scene, with the wailing sirens of ambulances and police cars resounding in every direction. People screamed as they received assistance from compassionate strangers.

As shocked residents grappled with disbelief, personal belongings and groceries lay scattered across the area, remnants of the horrific accident. A truck collided with at least 10 vehicles, resulting in the tragic loss of a minimum of 50 lives and leaving several others injured.

Residents expressed that the events they witnessed on Friday night would be etched into their memories indefinitely. Eight matatus were mangled and transformed into mere wreckage, leaving one unable to fathom that these remnants were once functional vehicles. 

The wreckage was subsequently towed to Londiani Police Station, with the truck cabin and trailer being detached and treated as separate entities.

The incident has ignited anger among the local community, with the police attributing the crash to human error, while the government places blame on excessive speeding and the use of an unfit trailer.

Cause of accident

“My husband could have been alive were it not for reckless truck drivers. They are murderers, all of them,” Cherono screamed out loud.

There has been a bad habit of long-distance truck drivers free-wheeling that could have caused the grisly accident.

Although police are yet to fully establish the actual cause of the accident, sources within the Kericho Traffic Department said free-wheeling is still rampant on that section of the road.

An official of the National Transport Safety Authority (NTSA) and Kenya National Highways Authority (KENHA), who arrived at the scene yesterday, said the driver of the trailer resorted to free-wheeling (where you engage the neutral gear because you want to save fuel) while hurtling downslope at high speed, before losing control of the vehicle.

Mayek said a manhunt for the Rwandese driving the trailer was still on.

Caroline Cherutich, another of the Londiani residents who lost her cousin, Joan Chepchirchir, 38, said the deceased was roasting and hawking maize at the roadside market.

“Joan had just resumed her business after a short break, only to be among the victims of the crash. She wanted to use the school half-term break to raise some money for children’s school needs but ended up dying in the crash,” said Cherutich.

Her body is among those moved to Londiani sub-county hospital mortuary. Charles Koech said his brother, a driver, died in the accident. He said they could not have identified his body were it not for the clothes he was wearing.

Kenya Red Cross South Rift regional manager Jethro Koech said the agency was helping families in tracing their loved ones, and positively identifying their dead relatives.

“We have been around since Friday. We are doing the tracing, supporting families to identify the deceased, doing referrals of the injured to other hospitals, and offering psycho-social support to affected families,” Koech said.

However, 48-year-old Mary Chepkoech Maritim survived the Londiani road crash.

Recounting her ordeal from her hospital bed at Kericho County Hospital, Maritim, a matron at Kirobon Girls Secondary School in Nakuru county, expressed her gratitude for being one of the only two survivors among the eight passengers aboard the ill-fated matatu.

‘Loud bang’

Maritim, who was en route from Kericho to Nakuru, described the accident as an apocalyptic scene that unfolded in an instant, leaving her bewildered and traumatised.

“The accident happened within a twinkle of an eye. I just heard a loud bang and tyres screeching, and people screaming as the lorry rammed one car after another. I can’t recall anything else,” she said.

Despite the chaos and devastation, Maritim managed to escape with soft tissue injuries. She resorted to breaking the vehicle’s window and maneuvering over lifeless bodies in order to make her way out of the accident site.

Reflecting on her harrowing experience, she expressed her gratitude for surviving while so many others perished. “I thank God that I emerged alive in a situation where many people died,” she said.

Recounting the events leading up to the crash, the lucky survivor said the ill-fated Nanaki Sacco vehicle had come to a halt at the Londiani junction, as the conductor sought an alternative means of transportation for the six passengers in her vehicle.

However, tragedy struck before a replacement vehicle could be arranged. “The accident happened before the conductor could get us an alternative vehicle to transport us,” Maritim said.

Furthermore, Maritim said the four passengers from her vehicle, who tragically lost their lives in the incident, had already disembarked prior to the collision.

“They were knocked down just outside the car. An elderly man and I were still inside the vehicle, wondering how we would complete the rest of the journey when the accident occurred,” she said.

Challenges

As Maritim recovers from her injuries, she remains grateful for her survival, grappling with the memories of the catastrophic crash.

Yesterday, Kericho County Hospital’s Emergency Department saw an influx of survivors on Friday night, according to Alice Akoth, a nurse at the facility. She said 19 survivors had been admitted, shedding light on the severity of the accident.

Among the survivors, two victims required immediate surgical intervention. Tragically, one of them lost their lives while undergoing a medical operation in the theater, as shared by Akoth.

The incident highlights the challenges faced by the medical team as they battled to save lives in the midst of chaos and confusion.

Akoth said another survivor, who had been admitted to the Intensive Care Unit, succumbed to their injuries on Saturday morning.

Currently, three survivors remain under observation while four others are awaiting their reports in the Emergency department.

Akoth said despite the circumstances, all survivors are in stable condition.

Nakuru County Health executive Jacqueline Osoro said the nine survivors had been attended to. The county will waive all medical charges. By Julius Chepkwony and Niko Tanui, The Standard

KIGALI, June 30 (Xinhua) -- Rwanda's direct economic losses from the disasters triggered by heavy rains in May amounted to 222.31 billion Rwandan francs (about 191 million U.S. dollars), Rwandan Prime Minister Edouard Ngirente said Friday.

During his presentation to the plenary session of both chambers of parliament, Ngirente provided an overview of the government's actions in disaster management and prevention.

Ngirente emphasized the gravity of the challenges confronted and highlighted the cruciality of implementing effective measures to mitigate and respond to such natural disasters.

He said since May, efforts have been underway to repair a total of 438 houses, while new homes will be constructed for 3,088 families whose residences were destroyed.

As part of the government's response and support for affected families, 3,711 households were provided with rental assistance for a period of three months, along with food and basic necessities, while their homes are being repaired or built, said Ngirente, urging families and households still residing in high-risk areas to promptly relocate to safer regions.

At least 135 people were killed and 110 others injured in the disasters triggered by heavy rains in May in Rwanda. More than 20,000 people were displaced after nearly 6,000 houses were destroyed.

Last month, the Rwandan cabinet approved the National Disaster Risk Reduction and Management Policy, which aims to strengthen the legal and institutional framework for disaster management and build capacity for disaster management at all levels. - Xinhua

Following the suspected rebel attack on a school in Kasese that left 43 people dead, legislators from the district have poked holes into government’s response to beef up security.

On Friday 16, June 2023, rebels of the Allied Democratic Forces attacked Lhubiriha Mpondwe Secondary School, setting buildings on fire leaving 37 students, a security guard and four other civilians dead.

It was then agreed, during a Parliament sitting on 23 June 2023 that the Government would swiftly move to deploy security in Kasese especially along the border with the Democratic Republic of Congo (DRC). The intention was to prevent a recurring attack.

In the House on Thursday, 29 June 2023, Bukonjo County West MP, Hon. Atkins Katusabe, however, updated Parliament that the Government had been slow to react in keeping its promise to up security deployment in Kasese.

He said that the situation was still tense and the residents in the area where the attack occurred and along the border were living in fear.

“Not so long ago, there used to be several Police checkpoints in and around Kasese but now, there is nothing and that gives us little confidence on matters concerning security,” Katusabe added.

The MP implored government to act on its promise and secure the area so that life can get back to normal with businesses operating and parents sending their children back to school.

Katusabe also asked the government to endeavor to compensate the families of all the victims who were killed in the attack.

“We were told that the bodies of some of the students who were burnt beyond recognition were still being examined using DNA analyses before compensating the respective families; we hope that when the results are out the government follows through,” he said.

In response, the Minister of State for Education and Sports (Sports), Hon. Peter Ogwang, said that he will work with the area MPs and ensure that when the DNA results are out the rightful families are compensated.

He revealed that the ministry was working closely with the Ministries of Defence, Security and Internal Affairs to secure the schools in Kasese located near the border with DRC.

On the other hand, speaking on behalf of the Leader of the Opposition, Hon. Joseph Ssewungu (NUP, Kalungu West County) urged government not to just stop at compensating the victims of the attack but to go deeper in investigating the circumstances surrounding and leading to the attack.  By Moses Kayigwa, Tower Post

The Supreme court generally mishandled the Ham vs DTB Civil Appeal No. 13/2021 when it delivered its judgment on June 6, 2023.

This judgment was against the public policy of Uganda. In the handling of the case, the court intentionally set up its ladder against the wrong wall and it ended up resolving the wrong problem. 

There are two imaginary problems which influenced the Supreme court decision. The first imaginary problem was that Ham is using legal technicalities to avoid paying his debts said to be owed to DTB. The second imaginary problem was that the High court decision which was made in favour of Ham outlawed syndicated lending transactions between foreign banks and Ugandans.

We note that an unusual dissonance greeted the delivery of what should have been a landmark judgment in guiding
the prudential regulation of the banking sector. This muted reception of the decision is caused by the court’s failure to yield to the true facts of the case. 

The court also completely misdirected itself on the sovereignty of the Ugandan law when it declared incredibly, that there is no law which stops a foreign bank from lending in Uganda and that any transaction it carried out was legal per excellence.

By subscribing to a deregulation of foreign led financial transactions conducted in Uganda, the judgment consigned itself into an irretrievable legal absurdity.

ORIGIN OF THE DISPUTE

Ham’s dispute with DTB Uganda started in 2019 when he conducted an audit of his bank accounts and discovered that DTB had over a long period of time stolen the equivalent of Shs 123bn from his accounts. Ham sent his audit findings to the bank
in November 2019 and requested for a meeting to reconcile accounts.

At that time Ham had an existing credit facility with DTB Uganda and Kenya amounting to $10m. This facility had been contracted in 2017/2018. Ham was however surprised when DTB turned down the audit meeting request and instead started taking enforcement measures to recover the $10m facility. 

Ham run to court in early 2020 to report the stealing of money from his accounts and also to raise the issue of the illegal lending transaction of DTB Kenya which was done without prior approval of the central bank as required by the Financial Institutions Act 2004 (as amended).

The dispute would not have escalated to the courts if DTB had acted reasonably and sat down with its customer to look into the audit queries he had raised. On the facts, it is Ham who demands money from DTB, not vice versa.

DECISION OF THE HIGH COURT

After hearing the arguments of the parties, the High court declared that the $10m credit facility was illegal for want of regulatory approval. The illegality attached to the $10m credit transaction and not Ham’s claim of Shs 123bn which court ordered to be refunded. Secondly, court refused to order the audit of the $10m credit transaction since it had already been declared to be an illegality.

The above decision gave rise to the second imaginary problem which relates to the alleged outlawing of syndicated loansbytheHighcourt. For the record, the High court did not make any order in its decision, outlawing syndicated lending transactions between a foreign bank and any Ugandan. 

The only inference which can be drawn from the High court decision is that any lending by a foreign bank in Uganda required the prior approval of the Central Bank.

SMUGGLING OF THE SYNDICATED LOAN ISSUE IN THE CASE

The syndicated loans was never part of the DTB appeal lodged in the Court of Appeal nor was it part of Ham’s appeal lodged in the Supreme court. Anyone reading the file causally would have established that there was no syndicated loan arrangement between Ham and the DTB banks.

In simple terms, a syndicated loan is an arrangement where two or more lenders come together to raise a loan to a customer by issuing the loan under the name of one of the lenders who is licensed to operate in the territory of the borrower. 

In our case, DTB Kenya issued a direct credit facility of $4.5n by issuing offer letters on the 23rd of October 2017 and August 24, 2018 for $4m and $0.5m respectively. There was no syndicated loan offered by the DTB to Ham and each Bank made a separate loan offer.

In April 2023, the Commercial court of Tanzania sitting at Dar es Salaam delivered an instructive judgment on the legality of a loan issued by a foreign bank and an alleged arrangement of syndication in the case of Kilimanjaro Oil Ltd vs KCB (Tanzania) Ltd and KCB (Kenya) Ltd Commercial Case No. 7/2020.

In that case, KCB (Kenya) Ltd issued a loan of $15m directly to the plaintiff and KCB (Tanzania) Ltd, its subsidiary was the arranger/intermediary. The plaintiff challenged the legality of the transaction on the ground that it was procured in contravention of the banking and foreign exchange laws of Tanzania. The bank’s plea that this was a syndicated loan was rejected and court nullified the loan transaction for want of regulatory approval.

SOVEREIGNTY OF THE UGANDAN LAW

Under the principle of the sovereignty of laws, a country’s legislature passes laws for the governance and regulation of any matter conducted in that contrary.

If any person, local or foreign, is involved in any regulated matter in that country, that person is subject to the laws of that country to the extent that they are involved in the regulated activity.

It is, therefore, repugnant to the sovereignty of our national law for the Supreme court to have ruled that the Financial Institutions Act, which is the substantive law regulating banking business in Uganda, does not apply to foreign banks conducting the same business in Uganda.

Under Article 79 of the Constitution, it is only parliament which has the power to make laws on any matter for the peace, order, development and good governance of Uganda. These laws are made to govern all persons that dwell and operate in Uganda, whether local or foreign.

We take the view that the Supreme court had no power to usurp the power of parliament and start discriminating between foreign and local banks in respect of a statute of general application relating to the banking sector. (See Article 21 of the Constitution).

DENIAL OF A FAIR HEARING

Whereas there was no evidence of loan syndication, the Supreme court still allowed DTB to smuggle a ground of foreign loan syndication into Ham’s appeal.

This was allowed in violation of the rules of the court which required DTB to have submitted a cross-appeal or notice of affirmation of the decision of the court of Appeal before introducing new matters. (See Rules 87 and 88 of the Judicature (Supreme court Rules) Directions S. 113 – 11).

Whereas the court allowed DTB to flout its rules and seek orders outside the appeal, the same court could not allow Ham’s request to be heard on a formal application for judgment against DTB in respect of the admitted grounds of appeal (see Order 13 r. 6 Civil Procedure Rules).

It also refused to entertain an application to adduce additional evidence from the Central Bank of Kenya indicating that DTB Kenya had illegally conducted banking business in Uganda (see Rule 30 the Judicature (Supreme court Rules) Directions (supra).

The public policy of Uganda does not allow the courts to selectively apply their rules and the law to favour one party against the other nor does it allow the courts to deny a litigant access to the courts to plead his or her case. The Supreme court judgment in Ham vs DTB was issued in contravention of the constitution and its constitutionality shall be challenged.

Despite the court indicating that the application for judgment on admission would be considered in the final judgment, it made no mention of this application in the said judgment. What is odd is that the application to adduce additional evidence is pending ruling even if the court has issued its final judgment. This is a real mockery of the administration of justice.

THE SOCIO-ECONOMIC IMPLICATION OF THE JUDGMENT

It is ironic that the Supreme court decision is promoting a shadow banking system at a time when Uganda is struggling to get off the grey list of the Financial Action Task Force (FATF), an international watchdog which monitors countries with significantly weak anti-money laundering and terrorist financing enforcement regimes.

Whereas supporters of the Supreme court decision would like us to believe that the decision is endeared to international practice of foreign lending which will increase foreign cash inflows, studies show that grey-listing may lead to a decline of foreign capital inflows, downgrading of the country’s credit rating while increasing the cost of doing business in the respective country.

The latter occurs partly due to the attendant high costs on electronic and financial transfers of commercial banks, large costs on processing letters of credit, etc.

Logic would have dictated that allowing unregulated foreign banks to engage in predatory practices which compete against the regulated banks can only increase the fragility of the financial system. Syndicated loans are regulated financial transactions everywhere in the world. The Supreme court had no legal basis for ruling otherwise.

ABDICATION OF DUTY BY BOU

The BoU has abdicated its statutory duty by declaring that it does not regulate lending obtained from foreign banks since they do not take deposits from the Ugandan public.

However, one of the key functions of the Bank of Uganda is to maintain monetary stability. (See S. 4 Bank of Uganda Act Cap 51). One wonders how BoU maintains the monetary stability of the country when it refuses to monitor the external cash inflows from foreign sources.

Why should BoU, as a regulator of the banking industry, work so hard to constantly devise means of ensuring that some players in the Banking industry operate outside the rule book? It is the duty of BoU to ensure prudence of the monetary and fiscal policy of the country. It appears, however, that BoU has joined hands with the Supreme court to take us in the opposite direction.

CONCLUSION

In conclusion, though the Supreme court judgment is dangerous, it will remain largely irrelevant to the gainful regulation of commercial banking and the practice of the law in Uganda. No serious bank will be motivated to engage in illicit money transfers and come out to openly acknowledge it, because of this judgment.

Secondly, no serious court (including the Supreme court itself ) can allow to continue flouting its rules of procedure and the established principles of law. Any court which chooses to do that will cease to function as a court of law.

Thirdly, no serious lawyer in Uganda can risk his client’s case (whether local or foreign) by casually defying the court’s rules of procedure and the governing law of Uganda. We cannot just mourn the passing of this Supreme court decision; we shall challenge it.

The authors are Counsel for Ham Enterprises (U) Ltd, Kiggs International (U) Ltd and Hamis Kiggundu, The observer