[2022] KEHC 13365 (KLR)

Muchiri v Eldoret Hospital Limited (Constitutional Petition 024 of 2021) [2022] KEHC 13365 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13365 (KLR)

Republic of Kenya

In the High Court at Eldoret

Constitutional Petition 024 of 2021

EKO Ogola, J

October 4, 2022

IN THE MATTER OF ARTICLE 10, 19(2), 20(1)(4), 22, 23, 27, 33(1) (a) AND 35 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTION 4, 7, 9, 10 OF THE ACCESS TO INFORMATION ACT NO. 31 OF 2016 AND IN THE MATTER OF THE MEDICAL PRACTITIONERS AND DENTISITS ACT 253 LAWS OF KENYA AND IN THE MATTER OF SECTION 35 OF THE NATIONAL CORONERS SERVICE ACT, NO.18 OF 2017IN THE MATTER OF THE REFUSAL BY THE RESPONDENT TO RELEASE THE MEDICAL RECORDS AND TREATMENT HISTORY OF THE HON. PETER KIIRU CHOMBA (DECEASED) TO HIS WIFE, ALICE MUCHIRI

Between

Alice Muchiri

Petitioner

and

Eldoret Hospital Limited

Respondent

Judgment

1. The Petitioner, Alice Muchiri, is the widow of Hon Peter Kiiru Chomba (Deceased) who prior to his death served as the Member of County Assembly (MCA) Huruma Ward in Uasin Gishu County. The Petitioner is also one of the Administrators of the estate of the deceased.

2. The Respondent is a private limited company and a fully-fledged medical institution based in Eldoret, Uasin Gishu County.

3. On September 29, 2021, the Petitioner filed this petition seeking prayers that:1. A declaration be and is hereby issued that the Respondent’s decision to deny the Petitioner access to the medical records and treatment notes of her late husband, Hon Peter Kiiru Chomba (Deceased) as requested in the letters dated 19th and August 23, 2021 respectively. Is arbitrary, unlawful and contrary to Articles 33(1) (a) and 35(1) (b) of the Constitution.2. An order be issued and is hereby issued compelling the Respondent to release to the Petitioner the medical records and treatment history of Hon Peter Kiiru Chomba (Deceased) for the period between 2019 and October 10, 2020 when he passed on.

The Petitioners Case 4. The Petitioner’s case is that her late husband was the serving Member of County Assembly (MCA) of the Huruma Ward, in Uasin Gishu County until his untimely death on October 10, 2020. That prior to his death the deceased had on diverse dates in the years 2019 and 2020 when he died at the Respondent’s hospital received treatment and routine medical check-ups in the said facility. Following his, death a post mortem examination was conducted on October 13, 2020 by Dr Nalyanya WW and it was his opinion that the cause of death was acute respiratory syndrome/acute pancreatitis due to Covid-19 infection complications.

5. The Petitioner and her children are of a different view and doubt the findings of the post-mortem report. They believe that deceased must have fallen and injured himself while at home, two weeks prior to his untimely death.

6. The Petitioner deposed that sometime in mid-July 2021, she personally visited the Respondent’s CEO’s office with a view of seeking the deceased’s medical history which request was declined. On August 19, 2021, the Petitioner through her Counsel, wrote to the Respondent requesting the medical records of the deceased in order to enable her seek a professional opinion on the probable cause of death of her late husband. The Petitioner sought for: the hospital in-patient notes, including but not limited to all notes made by the medical and nursing staff in relation to the Deceased for the period in question, past medical history, the allergies treated if any, the record of medical examinations carried out during the period, triage notes and the nursing Kardex for the deceased.

7. On August 23, 2021 the Petitioner made a further request to the Respondent seeking: a copy of the post mortem report, body tissues and samples taken at the time of the autopsy, blood and fluid samples extracted if any and the results of the tests done on each tissue and the particulars of the dates, time and institutions that carried out the test. The Respondent’s Counsel vide a letter dated September 1, 2021 wrote to the Petitioner’s Counsel stating that they had advised the Respondent not to release the said information, as there were two administrators over the said estate. On the face of it, the letter bore the words 'without prejudice'. The Petitioner further wrote to the Respondent’s Counsel on September 2, 2021 seeking to know whether her request to obtain the said information could be granted or had been rejected.

8. The Petitioner maintains that to date, there has been no response on the part of the Respondent and seeks that the letter written without prejudice be produced as evidence in Court.

9. The Petitioner deposed that Article 33(1) (a) entitles her to freedom of expression, which includes freedom to seek, receive or impart information. The Petitioner further argues that Article 35(1)(b) grants her the right to access information held by the Respondent. According to the Petitioner Sections 9 and 10 of the Access to Information Act, obligates the Respondent to make a decision on the Petitioner’s request within 21 days of receipt of request for information. The Petitioner argues that the Respondent did not meet this statutory requirement despite several reminders.

10. The Petitioner further deposed that Section 35 of the National Coroners Service Act, 2017 allows her to seek a second opinion to determine the cause of death whenever dissatisfied by the findings of a post-mortem exercise.

11. The Petitioner’s case is that to the extent that the Respondent has failed and or refused to provide her with said information, it has breached her constitutional rights as envisaged under Articles 35(1)(a) and 33(1)(1) of theConstitution of Kenya, 2010.

Respondent’s Case 12. The Respondent opposed the petition vide the Replying Affidavit sworn on November 29, 2021 by one, Dr PV Lodhia, a director at the Respondent’s facility. The Respondent denied having the medical records of the deceased. The Respondent maintains that the deceased had a personal doctor who used to attend to him within Eldoret Hospital Medical Plaza in which the Respondent also carries on business.

13. The Respondent contends that the deceased used to be attended to by Dr Ashraf Emarch who is also now deceased having succumbed to Covid-19. Further that Dr Ashraf Emarch, was the one in possession of the deceased’s medical records as he had attended to the deceased in his private clinic, making it impossible for the Respondent to access the deceased’s medical records and provide the same as requested.

14. The Respondent argues that Eldoret Hospital Medical Plaza houses many medical practitioners and the Respondent has no control of what private practitioners do in their clinics. The Respondent further argues that it does not keep blood samples, body tissues and fluid samples after tests are done and result generated and therefore the request for blood samples cannot be achieved.

15. The Respondent contends that in any case only Dr Ashraf Emarch (deceased) would be the one better placed to explain where he kept the results of the tests done having attended to the deceased as a private practitioner.

16. The Respondent admits that it received the deceased at its casualty facility and while being resuscitated the deceased collapsed and died and was taken to its facility for post-mortem. That a post-mortem was undertaken by Dr Nalyanya WW a Government Pathologist and an autopsy report generated that clearly indicates that the deceased died of Covid-19 complications.

Submissions 17. The application was canvassed vide written submission. Both parties filed their submissions that I have keenly read and need not reproduce here.

Determination 18. I have carefully considered the pleadings, submissions and authorities cited by parties. There are only two issues for determination namely: -a)Whether the Respondent violated the Petitioner’s right of access to informationb)Whether the Respondent should be compelled to give information.

19. The Petitioner’s main contention is that through the letters dated August 19, 2021, August 23, 2021 and September 2, 2021 he sought for information regarding the medical records of her deceased husband but the said letters never elicited any response from the Respondent prompting her to file this petition.

20. The Petitioner contends that the Respondent has violated Article 33 (1) (a) and Article 35 (1) (b) of the Constitution, Section 4 (1) (b) and Section 9 and 10 of the Access to Information Act and Section 35 of the National Coroners Service Act, 2017. The Respondent’s case on the other hand is that the deceased was treated by a private doctor housed at its doctor’s plaza. The Respondent contends that it cannot provide the said information as the doctor who was attending to the deceased is also deceased.

21. Article 33(1) (a) of theConstitution provides as follows:33. (1)Every person has the right to freedom of expression, which includes—(a)Freedom to seek, receive or impart information or ideas;

22. Article 35 of theConstitution of Kenya provides for the right to access information.

23. Article 35 of theConstitution provides that;1)'Every citizen has the right of access to—a)Information held by the State; andb)Information held by another person and required for the exercise or protection of any right or fundamental freedom.2)Every person has the right to the correction or deletion of untrue or misleading information that affects the person.3)The State shall publish and publicise any important information affecting the nation.

24. Article 35 of theConstitution has been operationalized by the Access to Information Act. Section 4 of the Act which is material to this petition provides for the procedure to access information. The section provides;1)'Subject to this Act and any other written law, every citizen has the right of access to information held by—a)The State; andb)Another person and where that information is required for the exercise or protection of any right or fundamental freedom.2)Subject to this Act, every citizen's right to access information is not affected by—a)Any reason the person gives for seeking access; orb)The public entity's belief as to what are the person's reasons for seeking access.3)Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.4)This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6. 5)Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.

25. The intention in Article 35(1) was clearly to create two distinct situations with regard to the right of access to information: one in which the citizen was entitled as of right to information held by the State; the other in which a citizen could access information from another, a private person, for the exercise or promotion of another right or freedom.

26. Article 19 of the Universal Declaration of Human Rights (UDHR) adopted by the United Nations in 1948 provides that‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’

27. Similarly, Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations in 1966, provides that:‘Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art, or through any other media of his choice.’

28. Article 9 of the African Charter on Human and People’s Rights (The (Banjul Charter) states that:‘Every individual shall have the right to receive information.’

29. These international instruments were ratified by Kenya and by virtue of Article 2(5) of theConstitution, general rules of international law and any treaties or conventions ratified by Kenya form part of the law of this country.

30. It is a principle of law that he who asserts must prove, and in this regard, Section 107(1) of the Evidence Act (Cap 80) provides that 'Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist'

31. The burden of proving the allegations lay squarely upon the Petitioner. The Petitioner has tendered evidence in form of letters to show that she requested medical records and or treatment notes relating to the deceased from the Respondent. The Petitioner has also attached a post mortem report conducted on the deceased upon his death and also produced extracts of test results that were conducted in the Respondent’s facility on September 27, 2020 and September 29, 2020. It is also not disputed that the deceased died in the Respondent’s facility. The Petitioner has urged the Court to find that the Respondents has violated not only her rights under Article 35 (1)(b), but also her rights under Articles 33(1) (a) of the Constitution by failing or refusing to provide it with the information that it seeks.

32. The Respondent has denied being in possession of the medical records with respect to the deceased. The Respondent claims that the deceased used to be treated by a private doctor who is now also deceased. It is indeed true that he who alleges must prove. The burden of proving at this particular point shifted to the Respondent to show that the deceased was being treated by a private doctor. The Respondent save for mentioning in passing that the deceased was being treated by one Dr Ashraf Emarch (deceased) it did not tender any evidence to substantiate the said assertion. The Respondent’s argument to my mind is nothing short of being evasive and dismissive. The Respondent has not produced any documentation before this Court to show that the deceased was in fact booked as private patient of the late Dr Ashraf Emarch.

33. InJ L N & 2 others v Director of Children Services & 4 others [2014] eKLR the Court held that:'The right to privacy is not absolute. Implicit in the protection accorded is that information relating to family and private matters must not be 'unnecessarily revealed.' Indeed, counsel for the petitioner submitted that there are instances where the right to privacy in respect of the patient/client relationship may be abridged. He cited the case of W v Edgell [1990] 1 ALL ER 835 where Lord Bingham set out the principles under which a doctor may disclose the information held in confidence. The principles were as follows;i.'A real and serious risk of danger to the public must be shown for the exception to apply.ii.Disclosure must be to a person who has legitimate interest to receive the information.iii.Disclosure must be confined to that which is strictly necessary (not necessarily all the details)'

34. In present case, it is not disputed the Petitioner is widow of the deceased. The Petitioner seeks the deceased’s medical records with the view of seeking a second medical opinion on the probable cause of death of the deceased. In my view, the reason for the request of the medical notes is justifiable and the Petitioner had a legitimate interest in requesting for the said information.

35. The Petitioner also seeks to have the Respondent’s letter that was written on without prejudice basis on September 1, 2021 admitted as evidence in Court.

36. The rationale behind the use of the term without prejudice' was discussed by Justice Nzioka wa Makau in the case of Millicent Wambui v Nairobi Botanica Gardening Limited [2013] eKLR where he expressed himself thus;'The application revolves around 'Without Prejudice' communication. The use of the term 'Without Prejudice' issued by the parties as a means to enable offers and counter offers to be made to settle disputes or claims without fear that the said letters would later be used by the opposite party as an admission of liability in the ensuing lawsuit. The words 'Without Prejudice' impose upon the communication an exclusion of use against the party making the statement in subsequent court proceedings.It is a well established rule that admissions, concessions or statements made by parties in the process of trying to resolve a dispute cannot be used against that party if the dispute is not resolved thus resulting in litigation. A party making a 'Without Prejudice' offer does so on the basis that they reserve the right to assert their original position if the offer is rejected and litigation ensues'.

37. This issue has also been discussed inHalsbury’s law of England Vol 17 where it has been stated that:'The contents of a communication made on a 'Without Prejudice' are admissible when there has been a binding agreement between the parties arising out of it, or for the purpose of deciding whether such an agreement has been reached and the fact that such communications have been made (though not their contents) is admissible to show that negotiations have taken place, but they are otherwise not admissible.'

38. In the letter dated September 1, 2021, the Respondent did not admit liability to pave way for negotiations and therefore the letter is in the class of communication to which the principles of a 'without prejudice' applies. It is the finding of this Court that the letter dated September 1, 2021 is not admissible.

39. For the above reasons, I find that the Respondent did breach the Petitioner’s right of access to information and that no effort was made to justify this violation. For that reason, I am equally satisfied that the Petitioner has proved its case to the required standard and must succeed.

40. In the end the petition dated September 20, 2017 is allowed and the following orders granted;i.A declaration is hereby issued that the failure by the Respondents to provide information sought under Article 35(1) (b) on the basis of the petitioner’s request dated August 19, 2021 and September 23, 2021 is a violation of the right to access information.ii.An order of mandamus is hereby issued compelling the Respondents to forthwith provide at the Respondent’s cost, information sought by the Petitioner in her letters to the Respondents dated August 19, 2021 and September 23, 2021. iii.Costs to the Petitioner.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 4TH OF OCTOBER 2022. E. K. OGOLAJUDGE