Paul Odhiambo Ogunde v The Honorable Attorney General & 1 other

THE OFFICER IN-CHARGE OF KAMITI MEDIUM PRISON .... 3RD RESPONDENT THE MEDICAL OFFICER, KAMITI MEDIUM PRISON ........ 4TH RESPONDENT JUDGMENT 1. What comes before this Court for determination is the undated Petition filed by the Petitioner, Paul Odhiambo Ogunde, wherein he seeks redress for what he contends is a failure by the Respondents to provide adequate nutritional care during his incarceration. 2. The Petitioner pleads that he is a person living with HIV and is enrolled in the Prison Comprehensive Care Clinic (CCC) program. While in custody, he developed an ocular condition described as “eye fioaters,” which he attributes to inadequate nutrition. Following referral from Kiambu Level 4 Hospital to Kenyatta National Hospital, his condition was confirmed and he was subsequently referred to a nutritionist, who recommended a diet rich in essential vitamins and nutrients. 3. In support of his petition, the Petitioner relies on a letter from Kenyatta National Hospital, dated 9th February 2024, wherein the hospital observes that the Petitioner’s existing diet was “compromising his progress” and recommends dietary modifications. The recommended items include foods rich in vitamins A and C, as well as protein sources such as fish, and dairy products including milk, yoghurt, and margarine. 4. In his supporting affidavit, the Petitioner deposes that the Respondents have failed to provide access to the recommended dietary items, thereby compromising his health and exposing him to the risk of deterioration of his condition. He further contends that although he is willing to procure the recommended diet at his own cost, the Respondents have declined to permit him to do so. 5. The petitioner seeks, among other reliefs: i. A declaration that the respondents have severally and abjectly muzzled the petitioner’s rights to dignity by denying him the right to the highest attainable standards of health informed by their refusal to allow him access to the food items contemplated in the annexed letter form KNH Nutritionist and which was only made for the good of the petitioner’s frail and compromised immune system which has been ravaged by his HIV palliative condition. ii. A declaration that all maladiuos prisoners including those contemplated in Section 3.3 of the Judicial Sentencing Policy Guidelines (2023) under the marginal note: terminally ill and elderly offenders and offenders with chronic illness are at liberty to boost their health with additional food items which they can afford in the event the prison where they are incarcerated in cannot supply them in their daily food rations as long as the additional food items are subjected to the provisions of Section 30(2)(a) of the Persons deprived of Liberty Act and as long as they are not prohibited items iii. A declaration that such food items are not prohibited items within the meaning of Section 59 of the Prisons Act. iv. A declaration that any other order, policy or law that prohibits a prisoner from enjoying the prerequisites that are expressly conferred upon him in the Bill of Rights and subject to the caveat of Article 51(1) of the Constitution offends the doctrines of Article 24(2)(c) of the Constitution and that such expunged orders are unconstitutional. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6011/eng@2026-03-19 2

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v. An order that Kenya Prisons Service comply to the fullest with the provision of the first schedule subsidiary legislation of the Prisons Act and start feeding forthwith the prisoners with the food rations as contemplated therein. vi. An order that the food ration allocation chart be placed in an open conspicuous place within the prison precincts for all prisoners to see and relate with in regard to their daily food allocation as demanded of in Section 59(2) of Prisons Act for the good of Article 35(1) of the Constitution. vii. An order that the respondents comply with the directive of the nutritionist from KNH and forthwith allow the petitioner to source for the food items prescribed therein for it doesn’t derogate Section 30(2)(a) of the Persons Deprived of Liberty Act nor does it the provisions of Article 51(1) of the Constitution. 6. The Respondents oppose the Petition through a replying affidavit sworn by Dr. Solomon Koome, who deposes that he is the Senior Superintendent of Prisons and is in charge of Kamiti Medium Security Prison. 7. The Respondents assert that the Petitioner is a convicted offender, sentenced on 23rd May 2019 to twenty years’ imprisonment for murder. He was transferred from Kamiti Main Prison to Kamiti Medium Security Prison on a routine transfer dated 22nd September 2023. According to them, the Petitioner is both a “CCC and PUD patient” and is provided a special diet as prescribed by Kenyatta National Hospital and prison nutritionists. 8. The Respondents contend that inmates with chronic or terminal conditions are provided with special diets and additional nutritional support in accordance with prison policy, and that the Petitioner, as a CCC patient, benefits from these provisions. 9. As regards access to additional dietary items, the Respondents aver that the prison operates a canteen that stocks items not ordinarily provided by the prison, which are accessible to prisoners with deposited funds. 10. They further state that the Petitioner has previously been permitted to withdraw funds to purchase supplementary items, including margarine, and that the prison canteen stocks nutritionally recommended items such as milk, fruits, yoghurt, and margarine, which are available to inmates with sufficient funds. 11. The Respondents maintain that the Petition is frivolous, vexatious, incompetent, and amounts to an abuse of the process of the Court. The Petitioner’s submissions 12. The Petitioner reiterates that he is an inmate living with HIV and enrolled in the CCC program, and maintains that he has experienced inadequate nutritional support while in custody. 13. He submits that following the onset of his ocular condition, he was referred to Kenyatta National Hospital, where a nutritionist recommended a specialised diet to manage his condition. He contends that despite this recommendation, the prison administration has not consistently facilitated access to the prescribed dietary items, and that procedural constraints have hindered his ability to obtain them even through the canteen. 14. The Petitioner contends that the failure to provide the recommended nutrition violates his rights to dignity and to the highest attainable standard of health and adequate food. He relies on Article 51 of the Constitution, which preserves the rights of prisoners subject only to limitations inherent in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6011/eng@2026-03-19 3

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incarceration, and on the decision in Mitu-Bell Welfare Society v Kenya Airports Authority regarding the protection and progressive realisation of socio-economic rights. 15. The Petitioner also invokes international standards, notably the Nelson Mandela Rules, and submits that comparative jurisprudence reinforces the principle that imprisonment does not extinguish fundamental human rights. He places reliance on Odhiambo v Officer in Charge, Kamiti Medium Prison & Another, contending that the prison authorities have previously attempted to limit inmates’ socio-economic rights. Analysis and Determination 16. Having considered the pleadings, affidavits, and the Petitioner’s submissions, the Court identifies the following issues for determination: i. Whether the Petition satisfies the constitutional threshold for pleading and proof in a claim alleging a violation of constitutional rights. ii. Whether the Respondents have violated the Petitioner’s rights by denying him access to medically recommended nutritional support or restricting his ability to obtain such nutritional items. 17. It is a settled principle of constitutional adjudication that a party invoking the jurisdiction of the Court under the Constitution must plead his case with reasonable precision. The Petition must disclose the constitutional provisions alleged to have been infringed, the manner of infringement, and the factual foundation upon which the claim is based. This principle was stated in Anarita Karimi Njeru v Republic [1979] KEHC in the following terms: “We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 18. The Court is satisfied that the present Petition meets this threshold. The Petitioner has identified the relevant constitutional provisions, set out the factual circumstances relating to his incarceration and medical condition, and annexed supporting medical documentation. The Petition is therefore properly before the Court for determination on its merits. 19. It is, however, necessary to distinguish between the sufficiency of pleadings and the proof of the alleged violation. Compliance with the Anarita Karimi Njeru standard relates to the form and precision of the claim and does not, of itself, establish the truth of the alleged infringement. 20. The burden of proving an alleged constitutional violation rests with the Petitioner, though it may shift where a Respondent places before the Court credible evidence of compliance with constitutional and statutory obligations. In such a case, the Petitioner bears the evidential burden of rebutting that material with cogent proof, as recognised in Njeru & another v Officer In Charge, Kamiti Prison & others. 21. Article 43 guarantees the rights to health and adequate food, while Article 51 preserves the rights of detained persons subject only to limitations inherent in incarceration. These rights are implemented through statutory frameworks including the Persons Deprived of Liberty Act and the Prisons Act, which impose obligations on the State to ensure humane treatment, adequate nutrition, and access to healthcare. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6011/eng@2026-03-19 4

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22. The Petitioner’s principal grievance is that, despite medical recommendations from Kenyatta National Hospital, he has been denied access to a prescribed dietary regime, allegedly endangering his health and dignity. 23. The Respondents have demonstrated that the Petitioner is enrolled in a structured medical care system, is maintained on a prescribed special diet, and has access to supplementary nutritional items through the prison canteen, subject to availability and his financial capacity. The evidence further shows that he has been permitted to utilise funds from his inmate account to procure such items, and that the canteen stocks food consistent with nutritional recommendations. On the material before the Court, the Petitioner’s own account confirms that he has accessed some of the recommended items. The dispute therefore concerns not a complete denial of nutritional support, but the consistency and ease of access within the existing institutional framework. 24. Against this backdrop, the Petitioner was required to demonstrate, with specificity, instances of refusal, unavailability, or systemic failure. Constitutional litigation demands probative evidence, not general assertions. The record, however, lacks contemporaneous material such as documented refusals, grievance records, or medical evidence linking any deterioration of his condition to acts or omissions attributable to the Respondents. In the absence of such evidence, the alleged violation remains unproven. 25. With respect to Article 47 of the Constitution, no discrete administrative decision has been shown to have been made denying the Petitioner access to the prescribed nutritional regime. The complaint instead relates to the operational implementation of an ongoing institutional system. In the absence of an identifiable administrative decision capable of review, a breach of procedural fairness has not been established. 26. In the circumstances, the Court finds that the Respondents have demonstrated the existence of a functioning medical and nutritional framework which has not been displaced by cogent evidence of failure or constitutional breach. The Petitioner has therefore not established a violation of his rights under Articles 43 or 51 of the Constitution. 27. Applying the standard of proof on a balance of probabilities, the Court must determine which of the competing accounts is more probable. The Respondents have presented a consistent account of an operational medical and nutritional regime, supported by institutional practice and partially corroborated by the Petitioner’s acknowledgment of access to certain dietary items. In contrast, the Petitioner’s case rests on general assertions of insufficiency, unsupported by documentary or medical evidence demonstrating deprivation attributable to the Respondents. Weighed against the Respondents’ evidence, their account is more probable. 28. The Petition, though properly pleaded, accordingly fails at the level of proof. 29. The Court’s holding is that while a petition may satisfy the pleading threshold set out in Anarita Karimi Njeru v Republic, it will fail on the merits where the Petitioner does not discharge the burden of proving, on a balance of probabilities, that a constitutional violation has occurred. Where a Respondent demonstrates the existence of a functioning institutional framework, the Petitioner must present specific and probative evidence of failure in its implementation; general dissatisfaction or inconvenience does not suffice. 30. For the reasons set out above, the Court makes the following orders: a. The Petition is hereby dismissed for want of proof of the alleged violations on a balance of probabilities https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6011/eng@2026-03-19 5

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b. There shall be no order as to costs. Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 19TH DAY OF MARCH 2026. BAHATI MWAMUYE MBS JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6011/eng@2026-03-19 6

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