Of broken hearts… The courts have no cure, Bench tells man

Friday, October 7th, 2022 06:50 | By
Of broken hearts... The courts have no cure, Bench tells man
Justice Patrick Kiage: The tears that have flowed in the wake of betrayal and perfidy are beyond reckoning. PD/file

It is a man’s world, as James Brown put it in his song, but it would be nothing without a woman in it.

This tear-jerking truth became all too real for a man from Kisumu who the Court of Appeal only identified as SMW for fear of revealing his true identity and why he has had to shed premium tears.

When SMW walked into St Mary’s Hospital Mumias’ maternity ward with a pregnant woman that he loved, he was looking forward to the day he would become that child’s father.

Indeed, he was looking forward to raising the child and was optimistic that a bright future awaited him and what he believed would be his family.

However, SMW has left a heartbroken man, if the papers he filed in the Court of Appeal are anything to go by.

The pregnant woman gave birth and both mother and baby were doing fine. So fine that when SMW went back to the hospital to discharge them, he was informed that another man had already been there and done that. That man was identified only as Echesa. As the young generation would say, “Echesa alichesa SMW (Echesa played SMW)”.

As though that was not painful enough, the hospital informed SMW that the woman had registered her newborn in Echesa’s name. Just like that.

Poor SMW walked out the gates of St Mary’s Hospital Mumias a broken man with a wounded heart. Although the sun was shining, his world was dark.

But SMW is not the kind of man who stays down after falling. He dusted himself and made a beeline to court where he sought legal redress.

Like any law-abiding citizen approaching the courts with clean hands, he filed a suit to challenge the hospital’s decision to release the mother and baby without reverting to him.

OK, the case was filed in Senior Resident Magistrate Maureen Shimenga’s court way back in 2018 — meaning that the child is now four years old and probably in a play group in some kindergarten in Nyanza.

But at the time of filing the case, SMW was interested in only one remedy which he believed the court could administer: To compel the hospital to compensate him for the pain and suffering he had had to endure.

It doesn’t just rain, the English say, it pours ... and the stars failed to align for SMW. The magistrate threw out SMW’s case the following year.

Undeterred, he sought the intervention of the High Court, and what started out as a bad case ended up being worse when Justice William Musyoka also threw it out in 2020, declining to overturn Shimenga’s findings.

Last week, SMW was dealt another blow to the solar plexus after the Court of Appeal dismissed his appeal, although he had one reprieve. The judges did not describe his submissions as “hot air” or his quest to have back his lover and child “a wild goose chase”.

If anything, the three Court of Appeal judges who heard the case, dismissed it in such colourful language that SMW will be happy he ended up there.

This was at a time when Kenyans were discussing the merits and demerits of colourful court verdicts in the wake of the Supreme Court ruling in the presidential election petition filed by Raila Odinga of Azimio-One Kenya coalition against William Ruto of UDA and others.

“The field of love, no doubt, is littered with the wreckage of many a broken heart,” wrote Patrick Kiage in the ruling he read on his own behalf and on behalf of justices Mumbi Ngugi and Francis Tuiyott. “The tears that have flowed, in the wake of betrayal, perfidy and other two-or multiple-timing adventures of lovers, are beyond reckoning. Thus must one who ventures into love do so alive to the perils that abound.”

In the end, to cut a long and sad story short, judges Kiage, Ngugi and Tuiyott basically told SMW that ‘of broken hearts ... the courts have no cure’.

See the full verdict below.

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, are beyond reckoning. Thus must one who ventures into love do so alive to the perils that abound.

For the appellant herein, whose sad tale is well-captured in the judgment of my learned sister Mumbi Ngugi, JA, with which I am in full agreement, 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, paying heed to Kahil Gibran’s ‘The Prophet’: “But if in your heart you would seek only love’s peace and love’s pleasure, then it is better for you that you cover your nakedness and pass out of love’s threshing floor ...”

 Free moral agent

I agree that if a man takes the woman he loves to a hospital labour ward for she is heavy with child, while happily believing himself the father, but upon the child making a landing, the woman by subterfuge eludes him and leaves the hospital in the company of another man, a shadowy rival, judges may empathise with the deceived the 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 the hospital in the company of whomever she pleases.

Thus, while the emotional anguish the appellant had to endure by reason of those events evokes sympathy, courts of law do deal not with that currency. 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 may-bes. And in the circumstance of this case, no remedy lies in law, least of all, against the hospital.

I concur that the appellant’s case before the High Court was properly dismissed and perceive that though arguably laden with moral merit, this appeal is unmeritorious in law, and must be dismissed.

As Tuiyott, JA, also agrees, the appeal is, and is hereby, dismissed along the lines proposed by Mumbi Ngugi, JA.

Ruling delivered in Kisumu.

Dated and delivered at Kisumu of ..........2022. P. O. KIAGE

................................. JUDGE OF APPEAL

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