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Court of AppealPartially AllowedCivil Appeal No. 123 of 2016· [2019] KECA 940 (KLR)

A K H S t/a A K U H v A A A [2019] KECA 940 (KLR)

Court of Appeal of Kenya
22 February 2019
6,914 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that parents cannot sue a negligent hospital for the costs of raising a healthy but unplanned child.

What this practically means

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Executive summary

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This appeal arose from a medical negligence claim in which the respondent, having sought contraception from the appellant hospital, was told an implanon rod had been inserted in her arm when in fact no implant was ever placed. She conceived and delivered a healthy but unplanned baby girl. The trial court, Waweru, J., awarded her Kshs 500,000 for pain, suffering and loss of amenities plus Kshs 4,320,000 for the cost of raising the child to age 18, relying mainly on Emeh v Kensington AHA and Sherlock v Stillwater Clinic. The hospital appealed only against the upbringing award, having abandoned the challenge to the general damages at the hearing. The Court of Appeal conducted an extensive comparative survey of wrongful birth and failed contraception jurisprudence from England, the United States and Singapore, and observed that the majority of jurisdictions deny recovery of child-rearing costs for the birth of a healthy child, with the House of Lords' decision in McFarlane v Tayside Health Board representing the persuasive mainstream position. Holding that the question involves serious moral and philosophical considerations that defy the ordinary logic of damages, and that assessing the net value of a child to its parents is impossible and inconsistent with parental duties under Article 53(1)(e) of the Constitution, the Court allowed the appeal in part. It set aside the award of Kshs 4,320,000 for care and upbringing, affirmed the award for pain and suffering, and directed each party to bear its own costs of the appeal. The judgment binds subordinate courts on the non-recoverability of child upbringing costs in wrongful birth claims.

Key legal issues

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01

Recoverability of child-rearing costs in a wrongful birth/failed contraception claim

Holding

Costs of raising a healthy but unplanned child are not recoverable as damages

Reasoning

The court surveyed divergent authorities from England, the USA and Singapore and found the majority rule denies recovery. The question involves serious moral and philosophical dimensions that defy ordinary damages logic. Assessing the net value of a child to parents is impossible, and awarding upkeep costs is at odds with societal expectations of parental duties underpinned by Article 53(1)(e) of the Constitution, which assigns parents the responsibility to provide for the child.

p. 7
02

Adequacy of the trial court's treatment of comparative authority

Holding

The trial judge erred by disposing of the case on the strength of two minority-view decisions

Reasoning

The trial judge relied principally on Emeh v Kensington AHA and Sherlock v Stillwater Clinic, which represent a minority position internationally. Given the multidimensional nature of the question, a broader evaluation of the divergent authorities was required before denying or allowing upkeep costs.

p. 6
03

Quantum of the upkeep award

Holding

The award of Kshs 4,320,000.00 had no evidentiary or pleaded basis and could not stand

Reasoning

The trial judge rejected the pleaded figure of Kshs 35,000 per month for want of proof, then substituted an unpleaded figure of Kshs 20,000 per month, contrary to the principle that parties are bound by their pleadings and reliefs must be founded on pleaded and proved claims.

p. 2

Legal principles established

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  • Costs of care and upbringing of a healthy, normal child born after failed contraception or a negligently performed family planning procedure are not recoverable as damages in Kenya
  • Damages for pain, suffering and loss of amenities remain recoverable for the negligent performance of a family planning procedure even where upkeep costs are denied

Court orders

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  1. 1.Allow the appeal in part by setting aside the award of Kshs 4,320,000.00 for cost of care and upbringing of the child
  2. 2.Uphold the award of Kshs 500,000.00 for pain, suffering and loss of amenities with interest
  3. 3.Direct each party to bear its own costs of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 53(1)(e)
  • Constitution of KenyaArticle 26
  • Sessional Paper No. 3 of 2012 on Population Policy and National Development

Cases cited (23)

  • Emeh v. Kensington AHA
    [1984] 3 ALL ER 1044
  • Thake & Another v. Maurice
    [1986] 1 All ER 497
  • Sherlock v. Stillwater Clinic
    260 N.W. 2d 169 (1977)
  • McFarlane & Another v. Tayside Health Board
    [1999] 4 All ER 961
  • Rees v. Darlington Memorial Hospital NHS Trust
    [2003] 4 All ER 987
  • Emerson v. Magendantz
    689 A. 2d 409 (1997)
  • ACB v. Thompson Medical Pte Ltd & Others
    [2017] SGCA 20
  • Galaxy Paints Co. Ltd v. Falcon Guards Ltd
    [2002] 2 EA 385
  • Allen v. Bloomsbury Health Authority
    [1993] 1 All ER 651
  • Udale v. Bloomsbury Area Health Authority
    [1983] 2 All ER 522
  • Thake & Another v. Maurice
    [1986] 2 WLR 215
  • Jones v. Bershire Area Health Authority
  • Szekeres v. Robinson
    [1986] 715 P 2d 1076
  • Johnson v. University Hospitals of Cleveland
    [1989] 540 NE 2d 1370
  • Public Health Trust v. Brown
    [1980] So 2d 1084
  • Weintraub v. Brown
    98 A.D. 2d 339 (1983)
  • McKernan v. Aasheim
    102 Wn.2d 411 (1984)
  • Smith v. Gore
    728 S.W.2d 738 (1987)
  • McKernan v Aashiem
  • Johnson v University Hospitals of Cleveland
  • Rieck v. Medical Protective Co.
    64 Wis. 2d 514 (1974)
  • Livingstone v Rawyards Coal Co
    [1880] 5 App Cas 25
  • The Common Law (Oliver Wendell Holmes)
    Dover Publications, New York, 1991
On appeal from
High Court of Kenya at Nairobi
HCCC No. 3 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164; Civil Procedure Act/Act No. 21 of 2015)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "A K H S t/a A K U H v A A A [2019] KECA 940 (KLR)", Case Analysis (2019). Civil Appeal No. 123 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/940/eng@2019-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.