[2010] KEHC 825 (KLR)
The court found that the detention of the petitioners in prison for defaulting on tuberculosis treatment was unconstitutional, unreasonable, and not supported by any medical opinion. The choice of a prison as the place of confinement, rather than a medical facility, was deemed the worst possible option and not in...
Source-derived case information.
- Citation
- [2010] KEHC 825 (KLR)
- Parties
- Applicant: Daniel Nge’tich; Applicant: Patrick King’etich Kirui; Respondent: The Hon. Attorney General; Respondent: The Principal Magistrate’s Court at Kapsabet; Respondent: Public Health Officer Nandi Central District Tuberculosis Defaulter Tracing Coordinator; Applicant: Kenya Legal & Ethical Issues Network on HIV & AIDS (KELIN)
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Petition 3 of 2010
- Procedural Posture
- Constitutional Petition / Ruling
- Outcome
- Petition allowed. Detention declared unconstitutional. Petitioners to be released immediately.
- Judges
- PM Mwilu
- Legal Topics
- Bill of Rights Enforcement, Right to Freedom of Movement, Reasonable Administrative Action, Detention and Confinement, Public Health Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Nge’tich
Applicant
Patrick King’etich Kirui
Applicant
The Hon. Attorney General
Respondent
The Principal Magistrate’s Court at Kapsabet
Respondent
Public Health Officer Nandi Central District Tuberculosis Defaulter Tracing Coordinator
Respondent
Kenya Legal & Ethical Issues Network on HIV & AIDS (KELIN)
Applicant
Procedural Posture
Constitutional Petition / Ruling
Legal Issues
- 1 Whether the detention of the petitioners in prison for defaulting tuberculosis treatment contravened their constitutional rights.
- 2 Whether the order of confinement was in compliance with the Public Health Act and the Constitution.
- 3 Whether the petitioners' rights to movement and reasonable administrative action were unlawfully limited.
Ratio Decidendi
The court found that the detention of the petitioners in prison for defaulting on tuberculosis treatment was unconstitutional, unreasonable, and not supported by any medical opinion. The choice of a prison as the place of confinement, rather than a medical facility, was deemed the worst possible option and not in compliance with the Public Health Act. The court held that the action taken by the authorities was not only a violation of the petitioners' constitutional rights to freedom of movement and reasonable administrative action but also failed to meet the requirements of the law under which it was purportedly grounded. Consequently, the court ordered the immediate release of the...
Court Disposition
Petition allowed. Detention declared unconstitutional. Petitioners to be released immediately.
Orders
- Petitioners to be released forthwith from confinement at G.K. Prison Kapsabet.
- Petitioners to continue their treatment at home under supervision of the Public Health Officer Nandi Central District Tuberculosis Defaulter Tracing Coordinator.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
PETITION NO. 3 OF 2010
IN THE MATTER OF ENFORCEMENT OF THE BILL OF RIGHT UNDER
SECTION 22(1) OF THE CONSTITUTION OF THE REPUBLIC OF KENYA
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF SECTION 51(1) 47(1), 39(1) and 24(1) OF THE
CONSTITUTION OF THE REPUBLIC OF KENYA
AND
IN THE MATTER OF THE PUBLIC HEALTH ACT, CHAPTER 242 OF THE LAWS OF KENYA
BETWEEN
DANIEL NGE’TICH..............................................................................................................1ST PETITIONER
PATRICK KING’ETICH KIRUI ..........................................................................................2ND PETITIONER
AND
THE HON. ATTORNEY GENERAL.................................................................................1ST RESPONDENT
THE PRINCIPAL MAGISTRATE’SCOURT AT KAPSABET.....................................2ND RESPONDENT
PUBLIC HEALTH OFFICER NANDI CENTRAL DISTRICT TUBERCULOSIS
DEFAULTER TRACING COORDINATOR ....................................................................3RD RESPONDENT
AND
KENYA LEGAL & ETHICAL ISSUESNETWORK ON HIV & AIDS (KELIN) .........................APPLICANT
R U L I N G
The Petitioners allege contravention of sections 51(1), 47(1), 39(1) and 24(1) of the constitution of the Republic of Kenya. They were ordered detained at the G.K. Prison Kapsabet for a period of eight months by an order of the Hon. Principal Magistrate Kapsabet upon an application by the Nandi Central District Tuberculosis Defaulter Tracing Cordinator. The contraventions they allege are limitation of their rights to movement reasonable administrative action and that their detention is a continuing act in further contravention of their fundamental rights. They pray for declarations that whatever law they may have been confined pursuant to is in contravention of the constitution and therefore invalid.
The state was representing the Public Health Officer and did not oppose the petition.
I have perused the petition and the affidavits. It is, in my view, that the G.K. Prison was the worst of choices to confine the petitioners and the period of eight months is unreasonably long seeing that it was not backed by any medical opinion. Why were the petitioners not confined in a medical facility? Why a prison? What is their crime? I find that the action taken was unconstitutional and not even in compliance with the Public Health Act that it was purportedly grounded on. Consequently I order that the petitioners be released forthwith from confinement at G.K. Prison Kapsabet to their respective homes from where they will continue their treatment under the supervision of the Public Health officer Nandi Central District Tuberculosis Defaulter Tracing Cordinator.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT ELDORET THIS 30TH DAY OF SEPTMBER, 2010.
P.M. MWILU
JUDGE
In the presence of;
Mr. Gumbo Advocate for Omwanza for the Petitioners
Mr. Kabaka Counsel for the Respondents
Andrew Omwenga – Court Clerk.
P.M. MWILU
JUDGE