The Court of Appeal has dismissed a man’s request for Sh5 million in compensation over his inability to engage in intimacy and enjoy spousal affection following a road accident.
A panel of judges ruled that such compensation is only applicable to married individuals. Justices Abida Ali Aroni, Aggrey Muchelule, and George Odunga upheld a 2014 ruling by Justice Anyara Emukule, which stated that while a person can be compensated for loss of physical function, they cannot be awarded damages specifically for loss of conjugal rights.
Instead, the court determined that a lump sum of Sh5 million was fair for all injuries sustained—including his struggles with erectile dysfunction and the psychological toll of the accident.
“The claim for loss of consortium was not available to the respondent,” the judges stated, with Justice Aroni leading the bench.
The Case: How It All Started
The legal battle began between the man, identified as FON, and the lorry owner, Kimani (only one name disclosed due to the nature of the case). The dispute first played out before High Court Judge Jaden Thuranira.
FON recounted that on October 26, 2012, he was walking along Mombasa Road in the Kyangombe area when he encountered a lorry loaded with building stones that had stalled. According to him, after the loading was completed, the vehicle failed to move, and the driver asked for his help to check what was wrong.
He claimed that upon crawling underneath, he found stones blocking the rear tyre and removed them. But just as he did, the lorry rolled back and pinned him down, crushing his back.
He was rushed to Kenyatta National Hospital, where doctors diagnosed him with severe spinal cord injuries, hip joint damage, and leg fractures—injuries that left him permanently incapacitated.
Lorry Owner Denies the Incident
Kimani, the lorry owner, disputed FON’s claims. He argued that his vehicle wasn’t even on the road that day. He insisted that his lorry had been grounded for repairs and was at a garage, presenting receipts for spare parts and mechanical work as evidence.
Kimani also pointed out that the vehicle had only been involved in two previous incidents: a fatal crash in Kariobangi and another self-inflicted accident in Machakos.
The Court’s Ruling
In June 2019, Justice Thuranira awarded FON Sh18.5 million in compensation. However, the judge determined that FON was partially responsible for his injuries, as he had put himself in harm’s way without proper safety precautions. As a result, the court reduced his payout by 30%, leaving him with Sh12.9 million.
Unhappy with the ruling, Kimani took the case to the Court of Appeal, arguing that the compensation was excessive and that the cost of a wheelchair had been miscalculated. He also raised concerns about the delay in reporting the accident, which was formally recorded a year and a half after it allegedly occurred.
Meanwhile, FON filed a counter-appeal, arguing that all liability should have been placed on Kimani. He insisted that the lorry driver had a duty of care and should have ensured it was safe before allowing him to go under the vehicle. He also demanded additional compensation for the psychological distress and loss of intimate function caused by his injuries.
However, the Court of Appeal rejected his claim for loss of spousal fellowship, ruling that such damages could only be awarded to married individuals. In the end, the court maintained the Sh5 million global award, covering all injuries sustained.