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’S COURT AT KAPSABET.....................................2ND RESPONDENT PUBLIC HEALTH OFFICER NANDI CENTRAL DISTRICT TUBERCULOSIS
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DEFAULTER TRACING COORDINATOR ....................................................................3RD RESPONDENT AND KENYA LEGAL & ETHICAL ISSUES NETWORK ON HIV & AIDS (KELIN) .........................APPLICANT RULING 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
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