A K H S t/a A K U H v A A A [2019] KECA 940 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Recoverability of child-rearing costs in a wrongful birth/failed contraception claim
Costs of raising a healthy but unplanned child are not recoverable as damages
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.
Adequacy of the trial court's treatment of comparative authority
The trial judge erred by disposing of the case on the strength of two minority-view decisions
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.
Quantum of the upkeep award
The award of Kshs 4,320,000.00 had no evidentiary or pleaded basis and could not stand
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.
Legal principles established
#- 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
#- 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.Uphold the award of Kshs 500,000.00 for pain, suffering and loss of amenities with interest
- 3.Direct each party to bear its own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.