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Three years ago, a girl was born to a couple that had not planned to have a third child.
The girl's parents were caught off-guard after a contraceptive implant on her mother failed to work.
The girl is now subject of a four-year legal battle, which is before the Court of Appeal, between her mother and Aga Khan University Hospital.
Upkeep money
The hospital has owned up to the blunder, but it has appealed against a Sh4.3 million award by the High Court to the parents as upkeep money to raise the child.
It argues that the money meant to take care of the girl until she is of legal age should not have been considered since the parents were happy to have a third child after all.
“The primary reason why this appeal has been filed by the appellant (hospital) is to challenge the award of damages to the respondent (name withheld) by the honorable trial judge on account of wrongful birth claim,” the submissions exclusively seen by The Standard read in part.
“As the appellant will demonstrate hereunder, 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 argues that the court should not give damages as a result of negligent sterilisation arguing the pleasure which a child gives for the love and care which they receive in their infancy far outweigh the costs of raising the child.
In the submissions, the private hospital reckons the birth of a normal child is a blessing and, therefore, cannot constitute a wrong even if he or she is 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 opted to have only two children because of economic hardships and thus a third one was against their will.
“This matter concerns a couple after giving birth to two children decided that for management purposes and because of economic hardships the two children were sufficient,” the reply reads.
“This matter therefore touches on population and family planning and the consequences that befall doctors or institutions which negligently administer family planning procedures.”
The woman says the hospital was paid to fulfil 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 explains.
“We submit that the key objective in the sessional paper (Vision 2030) is population management, which can only be achieved through small families by use of family planning,” the counter submission goes on.
Go unpunished
She also argues that if the Court of Appeal allows the hospital to go unpunished, it will encourage more doctors to be negligent.
The couple live in Nairobi. According to court records, the complainant’s husband works as a media practitioner whereas she works for an international firm.
Her monthly gross salary is Sh100,000 whereas that of her husband is Sh285,000.
They say that they spend on each of their two children Sh35,000, which totals to Sh70,000 a month.
At the High Court, Justice Hatari Waweru also ordered the hospital to pay the woman a further Sh500,000 for pain and loss of her comfort.
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