In July 2011, AAA, a mother of two, consulted the family planning clinic of Aga Khan University Hospital for an appropriate contraceptive to prevent her from having any more children. At the clinic, she was advised to choose “implanon”, a method consisting in an implant that would prevent conception for three years from the date of insertion. AAA decided to choose this contraceptive method and the same day the staff at the clinic did the procedure, inserting the implanon into her left upper inner arm under local anesthesia. After the procedure, she was assured that the implanon was in place and that she was free to have sexual intercourse with her husband without using a condom, and that she would not conceive for three years.

In August 2012, AAA missed her period and went to the clinic where testing confirmed that she was indeed pregnant. Further tests at the clinic revealed that there was no implanon implanted in her arm.

AAA submitted a petition before the High Court of Kenya, claiming that the failure to implant the implanon led to her subsequent pregnancy and the birth of her baby. She argued that these events were the result of the Clinic’s negligence and that she had suffered emotional pain, distress, psychological damage, physical incapacity, and financial hardship. She therefore sought appropriate damages for these harms, including the cost of bringing up the child, (shelter, care, food, clothing, entertainment and education, medical and general welfare) from the date of birth until the child attains the age of 18 years. She further testified that the unwanted pregnancy caused a strain on her marriage, as her husband believed she lied about getting the implant, and that the birth of the child significantly increased the family’s delay expenses, which they were not prepared for or expecting.

No defense was presented by the Clinic’s representatives and an interlocutory judgment was entered on May 14, 2014.