The Supreme Court is set to determine whether a woman who bore a child unplanned should be compensated.
At the heart of the failed contraceptive case is the birth of the couple’s third child.
The woman is citing medical negligence, accusing Aga Khan University Hospital doctors of failing to ensure that an implant affixed on her would stop her from getting pregnant.
Earlier, the High Court had ordered Aga Khan Hospital to pay the woman Sh4.3 million for the upkeep of her daughter born as a result of the failed contraceptive, until she is of legal age.
Justice Hatari Waweru also ordered the hospital to pay the woman a further Sh500,000 for pain and loss of comfort.
However, the Court of Appeal reversed the upkeep payment order, prompting the woman to move to the Supreme Court.
The woman has now sought the top court’s interpretation as to whether costs of care and upbringing of a child conceived out of negligence of medical professionals in administering contraceptives are payable.
The Court of Appeal reversed a verdict in favour of the woman, decreeing that the joys of raising up a healthy child cannot be measured or compensated.
Justices Agnes Murgor, Kathurima M’inoti and Daniel Musinga ruled that the parents were raising a genuine grievance but that morality and the future of the child introduced a different perspective as to whether her parents should be paid to bring her up.
The three judges ruled that in as much as the pregnancy was not intended, the parental responsibility to raise and care for the child could not be transferred to a third party while both parents were alive.
“The law does not live by logic alone. It is at odd of the society to put a value of a child on loss or harm parents may suffer in bringing up a child,” the judges ruled.
The hospital owned up to the failed contraceptive, but opposed the upkeep amount, saying the parents were happy to have a third child.
“As the appellant (hospital) will demonstrate here under, the award of damages catering for the cost of raising the healthy baby by the learned trial judge was based on the wrong principles of law,” the hospital argued.
In its submissions, the hospital argues that the birth of a normal child is a blessing and therefore cannot constitute a wrong even if he or she was not planned for.
In reply, the girl’s mother argues that the hospital never appeared in the High Court case and it should not be given audience by the Court of Appeal.
Through her lawyers Wesonga and Company Advocates, she argues that she and her husband had planned to have only two children because of economic hardships and as such, a third one was against their will.
She further argued that the hospital was paid to fulfill the wish of not having any other child but it failed to deliver its end of bargain.
“The appellant must pay for the upkeep of the child as an abortion was not an option because our constitution outlaws abortion,” she stated.
She also argued that if the Court of Appeal allowed the hospital to go unpunished, it would encourage more doctors to be negligent.