If you want to know the father of a child, ask the mother, they say.
This is a jest that a man who has been battling a hospital for four years, has to come to terms with after a third court dismissed his case.
For a man codenamed SMW, the happenings at St Mary’s Hospital Mumias could be said to be a tragedy of the decade.
His is not a case of medical negligence.
It’s a tragedy of lovers that Court of Appeal judges Patrick Kiage, Mumbi Ngugi and Francis Tuiyott had to empathise with him while dismissing his case.
SMW’s story would best fit a telenovela or a thriller novel. The scene is the hospital and it surrounds a woman he loved to the very end of his heart.
Consumed by love, hope and yearning to be a father, he went to St Mary’s in 2018 with his pregnant lover looking forward to that moment that her labour pains would hand him the title, and the newborn baby would be the seal of his love for her.
However, lo and behold, this was not to be after he found that the mother and the child were missing.
According to SMW’s court documents, the hospital informed him that the two, his lover and the baby he had anticipated to welcome, had already left with another man.
Further to his grief, SMW was told that the woman had also declared for registration that the child belonged to the other man, named Echesa.
In his mind, the thought that the heart of the woman had all along been beating for Echesa, and his adventures of love with her were all in vain was unimaginable, a mystery that was too hard to believe.
SMW left the mission hospital a distraught man with a wrecked heart, pondering what to do after reality hit home that love had blinded him and his nine months felicity was just but a bad dream that vanished into thin air.
Now that his runaway love had another nest perch on, he thought he would get some solace from the law.
SMW trained his guns on the missionary hospital and blamed its administration for failing to detain the mother and child until he (SMW) came to discharge them.
In the case filed in 2018, he asked the court to compel the hospital to compensate him.
But the law did not help him either. He lost the case against the hospital before the Magistrates Court, High Court, and now the Court of Appeal.
While concurring with Justices Ngugi and Tuiyott that the appeal was for dismissal, Justice Kiage said:” The field of love, no doubt, is littered with the wreckage of many a broken heart. The tears that have flowed, in the wake of betrayal, perfidy, and other two-or multiple-timing adventures of lovers, is beyond reckoning. Thus must one who ventures into love do so alive to the perils that abound.”
The first to dismiss the case was Senior Resident Magistrate Maureen Shimenga in 2019.
Aggrieved, he moved to the High Court. Justice William Musyoka threw out the case in 2020. He tried to implore the judge to suspend the judgment but the judge threw out the application too.
In 2021 he challenged Justice Musyoka’s judgment before the Court of Appeal. However, the three-judge bench also could not find a cure in law for his woes.
“The lesson learnt is that the wounds of love find scant balm in the courts of law. Love’s ills and woes can only be found in lovers return and reconciliation, failing which in accepting and moving on, while holding onto hope for comfort elsewhere, or leaving love’s threshing floor altogether,” Justice Kiage continued.
According to the judges, the woman had a choice of deciding who was to discharge her from the hospital and whose bosoms she could lie on in love.
The judge said; “Judges may empathise with the deceived first man, but cannot in law agree with him that the hospital should compensate him for not detaining the woman, till the man who brought her in should claim and discharge her.”
“Adult she is, a free moral agent (though the man may protest the word ‘moral’) and in a free country she is perfectly free to associate with and as in this case, be discharged from hospital in the company of whomever she pleases,” he added.
The judge’s conclusion was that he ought to gather the remnants of his mangled heart and move on as the embers of love and deception that crashed it are the same ones that once ignited his flesh, heart and mind with want.
“It must cut to the core that the woman, in this case, declared the other man, one Echesa, as the child’s father, and not the appellant but, are not the hearts of men, and of women, deceptive above all things? It dawns on the appellant, alas too painfully, too late, there is no lie in the words, spoken usually in jest, that children are mothers’ babies, but fathers maybes. And in the circumstance of this case, no remedy lies in law, least of all against the hospital,” said Justice Kiage.