[2024] KEHC 15153 (KLR)
The court held that in the absence of evidence of the applicant's consent to undergo an HIV test, any order compelling such a test would contravene the absolute constitutional rights to dignity and freedom from cruel, inhuman, or degrading treatment. The court emphasized that these rights are non-derogable and...
Source-derived case information.
- Citation
- [2024] KEHC 15153 (KLR)
- Parties
- Applicant: Geoffrey Okusi Okwalo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kibera
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E195 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Interlocutory Application
- Outcome
- application struck out
- Judges
- DR Kavedza
- Legal Topics
- Right to Dignity, Compulsory Medical Testing, Fair Trial Rights, Remand Prisoners
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Okusi Okwalo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court can compel an accused person to undergo an HIV test without their consent.
- 2 Whether refusal to order the HIV test would result in a miscarriage of justice.
Ratio Decidendi
The court held that in the absence of evidence of the applicant's consent to undergo an HIV test, any order compelling such a test would contravene the absolute constitutional rights to dignity and freedom from cruel, inhuman, or degrading treatment. The court emphasized that these rights are non-derogable and cannot be limited, even in the context of criminal proceedings. Therefore, the application to compel the HIV test was struck out as it would violate the applicant's constitutional rights.
Court Disposition
application struck out
Orders
- The application dated 29th November 2024 is struck out.
- No order compelling the HIV test shall issue.
Full Case Text
Judgment text and source record
21 paragraphs
Okwalo v Republic (Miscellaneous Criminal Application E195 of 2024) [2024] KEHC 15153 (KLR) (2 December 2024) (Ruling)
Neutral citation: [2024] KEHC 15153 (KLR)
Republic of Kenya
In the High Court at Kibera
Miscellaneous Criminal Application E195 of 2024
DR Kavedza, J
December 2, 2024
Between
Geoffrey Okusi Okwalo
Applicant
and
Republic
Respondent
Ruling
1. This ruling arises from an application dated 29th November 2024. The applicant seeks orders compelling the trial court to direct the Commissioner of Nairobi Remand to facilitate an HIV test for the accused. Additionally, the applicant requests a stay of all proceedings before the trial court pending the hearing and determination of this application.
2. The application is supported by grounds that the trial court declined the request for an HIV test, which the applicant asserts is critical to the accused's defense. The applicant contends that failure to grant the orders sought will result in a miscarriage of justice.
3. I have carefully considered the application, the supporting affidavit, and the relevant provisions of the law.
4. Article 25 of the Constitution of Kenya enshrines certain fundamental rights and freedoms that are absolute and cannot be limited under any circumstances. Among these is the right to freedom from cruel, inhuman, or degrading treatment or punishment. Further, Article 28 guarantees every individual's right to inherent dignity and the right to have that dignity respected and protected.
5. Upon review of the record, there is no affidavit or other evidence demonstrating that the applicant has provided consent to undergo an HIV test. Without such consent, any order compelling the applicant to submit to such a procedure would contravene the constitutional rights enshrined in Articles 25 and 28.
6. Compelling an individual to undergo an HIV test without their consent is not within the powers of this court and would constitute a violation of their constitutional rights. Accordingly, the application must fail on these grounds and is struck out.Orders accordingly.
RULING DATED AND DELIVERED THIS 2NDDAY OF DECEMBER 2024D. KAVEDZAJUDGE