The Court of Appeal has rejected a man’s plea for Sh5 million compensation for inability to make love and enjoy spousal affection after a road accident.

Court of Appeal judges unanimously agreed that the amount demanded would only be awarded to a married person.

Justices Abida Ali Aroni, Aggrey Muchelule and George Odunga were in agreement with Justice Anyara Emukule who in 2014 ruled that a person who fails to meet their marital duties would be adequately compensated for loss of facilities and not for loss of conjugal right.

Instead, they ruled that a global award of Sh5 million for all injuries, including his inability to keep the system steady and psychological trauma, was fair and just.

“Therefore, the claim for loss of consortium was not available to the respondent,” the bench headed by Justice Aroni ruled.

The battle between the man we codename FON and a lorry owner, Kimani, whom we will only disclose one name owing to the issue at hand, started before High Court Judge Jaden Thuranira.

The victim narrated that on October 26, 2012, he was walking along Mombasa Road in the Kyangombe area when he bumped into a lorry loaded with building stones that was stuck.

He said after the loading was done, the lorry failed to move.

FON said the driver asked him to go under to check what was happening. The court heard that some stones were blocking the rear tyre, which he removed.

The vehicle then rolled, pressing him down on his back.

He ended up at Kenyatta National Hospital with severe injuries to the spinal cord, hip joint, and leg.

A doctor’s report indicated that he had suffered a severe spinal injury that had incapacitated him.

Kimani, on the other hand, denied that FON was walking on the road when the accident happened. He claimed that on the fateful day, his vehicle was not on the road as it had been grounded and was in the garage.

He said that evidence of payments to a mechanic and for spare parts logically suggested that the vehicle was under repair and could not have been involved in other activities, such as transporting stones.

The owner of the lorry said he could recall that the vehicle had only been involved in a fatal accident in Kariobangi and a self-inflicted one in Machakos.

He stated that both were reported at Buruburu Police Station and Machakos, respectively.

On June 26, 2019, Justice Thuranira awarded FON Sh18.5 million. However, the judge apportioned 30 per cent of the blame to him for embarking on a dangerous mission without protection.

The High Court Judge gave him Sh12.9 million.

Aggrieved, Kimani moved to the Court of Appeal, arguing that the lower court had miscalculated the cost of a wheelchair. He also said that the accident was reported one and a half years after it was claimed to have happened.

On the other hand, FON filed a cross-appeal. He argued that the judge erred by failing to apportion all the blame to Kimani.

He argued that the lorry driver owed a duty of care to him, adding that he should have ensured he was not under the vehicle and that it was safe to reverse or move before doing so.

In addition, FON argued that the judge ought to have awarded general damages for erectile dysfunction, loss of spousal fellowship and psychological trauma.