Mercy Kinoti & 2 others v Kenyatta University Teaching, Referral & Research Hospital

MERCY KINOTI .................................................................................... PETITIONER SUING ON BEHALF OF HERSELF AND AS THE MOTHER AND NEXT OF FRIEND OF MGW - MINOR AND KENYATTA UNIVERSITY TEACHING, REFERRAL & RESEARCH HOSPITAL ............................................................................................. RESPONDENT JUDGMENT 1. 2. Before this court for determination is a Petition dated 14th July, 2023 premised on alleged illegal detention over unpaid medical bills. The Petitioner contends that the Respondent’s conduct of holding onto the Petitioner and the minor as lien for unpaid medical bills had infringed the Petitioner’s and the minor’s rights under Articles 25, 28, 29, 39 and 53 of the Constitution of Kenya, 2010. The Petition seeks for the following orders;a. A declaration that the continued detention of the Petitioner and the minor by the Respondent is arbitrary and unlawful and a breach of Articles 25 (a), 28, 29 (a) (d) (f), 39 (1) and 53 (c) (d) (f) of the Constitution of the Republic of Kenya, 2010. b. A declaration be and is hereby issued that the charges levied by the Respondent after the discharge of the minor were illegal and unlawful and should accordingly be waived forthwith. c. A mandatory injunction be and is hereby issued against the Respondent directing the Respondent to immediately and unconditionally release the Petitioner and the Minor from detention and be allowed to go home. d. General damages for violation of the Petitioner’s and the minor’s fundamental rights and freedoms as stated in a) above. e. Costs of the Petition be borne by the Respondent. The Petitioner relies on the facts on the face of the Petition stating the following;a. On 24th April, 2023, the Petitioner admitted her child, the minor herein, to the Respondent’s hospital. The minor had fallen from the balcony and had severe head trauma leading to his admission into ICU for eight (8) days. He was later transferred to the normal ward for continued treatment. b. During the time of admission, the Petitioner remained in the hospital throughout to look after the minor. The Petitioner would once in a while be relieved by relatives to attend to her other obligations at home and fend for the family. c. The minor was discharged on 12th May, 2023 with a total outstanding bill of Kenya Shillings Six hundred and twelve thousand, six hundred and five (Kshs.612,605/-). Since the family could not be able to pay the bill at one go, they requested the Respondent for a reasonable payment plan. The Respondent denied the request and illegally detained the Petitioner and the minor in Zambezi ward, which ward is specifically reserved to detain persons who are yet to clear medical bills. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 2

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3. d. The daily costs of detaining the minor and the petitioner was pegged at Kshs. 6000/-amounting to a total bill of Kshs. 876, 778 as at 6th July, 2023. e. The Petitioner managed to raise Kshs. 273,930 with the help of well wishers leaving a balance of Kshs.602, 848. f. During the detention period, the Petitioner and the minor were restricted from stepping outside the ward environment thereby constraining their access to basics of life such as sunshine and fresh air. The Respondent did not allow the minor’s other siblings from visiting the minor and the Petitioner in detention for fear that the siblings may carry pathogens that may cause complications to the minor. g. The Respondent’s conduct subjected the Petitioner and the minor to inhumane and degrading treatment. Due to the illegal detention, the Petitioner and the minor developed various conditions and were re-admitted for cough, fever and diarrhea contracted from the hospital which compounded the Petitioner’s financial difficulty. h. Despite the Respondent’s social workers having visited the Petitioner’s home to establish her financial capability to pay and having established that the Petitioner is incapable of paying the said amounts, the Respondent continued to hold onto the minor and the Petitioner. The Respondent insisted that the Petitioner pays 75% of the outstanding balance and to further deposit an original title deed for the remaining 25% which conditions are unreasonable and out of reach of the Petitioner. i. The Petitioner’s advocates wrote a letter dated 10th July, 2023 demanding the release of the Petitioner and the minor and shared a payment plan with the Respondent which it rejected. The Respondent filed an answer to the Petition and Cross Petition dated 12th September, 2023, stating the following;a. The Petitioner lacks locus standi to institute the Petition and the Respondent does not admit that the court has jurisdiction to entertain, hear or determine the Petition. b. The subject patient arrived at the Respondent’s hospital on 24th April, 2023, on referral from Jacaranda Medical Centre. The Respondent admitted him into its Intensive Care Unit (ICU) in good faith as the usual deposit of Kshs. 200,000/- which is required before admission had not been paid. This shows that the Respondent is a reasonable and caring institution which strives to save lives and see patients recover and get discharged to go back to nation-building. The Respondent has no desire to unnecessarily keep patients in its wards. c. The Respondent treated the patient in ICU for eight (8) days and later moved him to the ward after his health improved. The patient recovered for discharge from the hospital on 12th May, 2023 and the accrued hospital bill was kshs. 512,606/-. The Petitioner had not made any payment to the hospital. As of 21st July, 2023, the bill had risen to Kshs.977,884/-. d. The Petitioner paid a total of kshs.273,930 with the first payment being made on 13th May, 2023 and the last payment made on 6th July, 2023. This left a balance of Kshs.703,954/-. e. Part of the reason for the increase in bill was as a result of the patient’s continued stay in hospital while being comfortably housed, medicated and fed. The Respondent conducted a social assessment of the petitioner and her family twice. The first social assessment was done on admission while the second one was done on 27th June, 2023 through a visit to the Petitioner’s home. Both assessments determined that the family was capable of settling the bills. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 3

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4. 5. f. The Respondent continually engaged the Petitioner with a view to getting a payment plan on the settlement of the subject debt. The Petitioner adamantly refused to give a payment plan and only attempted to give a payment proposal of Kshs.3000/- per month through the Petitioner’s advocates’ demand letter dated 10th July, 2023. g. The Petitioner’s proposal of a monthly payment of Kshs. 3000/- is unreasonable as it increases the period of recovery of the amount owed to the Respondent to about 22 years. h. The Respondent is not in a position to waive the outstanding amount as the Respondent must account to, inter alia, the National Assembly which receives the Respondent’s audited accounts, Ministry of Health and the National Treasury for the services it offers. Further a waiver of a bill pending in hospital is not a right as the Petitioner attempts to insinuate. i. The Respondent is a Public Level 6 hospital which offers much needed medical services to Kenyan citizens from every part of the country. It is highly dependent on scarce taxpayers’ funds as well as monies paid by patients upon treatment. If the Petitioner is allowed to avoid payment, the public interest represented by the Respondent would be defeated. j. The Respondent did not insist on payment of the entire bill or 75% as alleged by the Petition. Neither does the Respondent keep a special ward for detention of patients who have not paid hospital bills as alleged by the Petitioner. The said Zambezi ward is a pediatric ward like any other and it houses children either alone or children and their mothers. k. The Petitioner was not restricted from stepping outside the ward as alleged the Petitioner. The Respondent treated the patient and the Petitioner with utmost care and professionalism even as the Petitioner became uncooperative and refused to give a payment plan. The Respondent could neither force the Petitioner to give a payment plan nor forcefully eject her from the hospital. It waited for the Petitioner to give a payment plan and seek to be discharged. The Petitioner sat back in the ward without giving a payment plan and eventually emerged with a law suit. In the Cross-Petition, the Petitioner prays for the following;a. Kshs.938,270/- b. Costs of the Petition and the Cross-Petition. c. Interest on a) and b) above at court’s rates. The Cross-Petition is premised on the following grounds;a. The Respondent offered the subject patient diligent and professional medical services and the patient’s life was saved. The Respondent is entitled to be paid the entire bill incurred in providing the said medical services. The Respondent is responsible for the escalation of the hospital bill post-discharge by failing to make a payment plan and to take steps to get out of hospital. b. The Respondent could not force the Petitioner to make a payment plan or forcefully eject her from the hospital. The best it could do was to treat the patient and the Petitioner humanely and professionally for as long as they were in hospital. c. The Respondent incurred accommodation, subsistence and other costs in taking care of the patient and the Petitioner while in hospital post-discharge. Eventually the Honourable Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 4

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intervened as a result whereof the Petitioner gave a payment plan and left the hospital. As at the date of leaving the hospital, the bill stood at Kshs.945,370. d. 6. Pursuant to the intervention of the Court, the Petitioner paid Kshs.40,000/- and Kshs.60,000/- on 1st August, 2023 and 2nd August 2023 respectively and has since paid Kshs. 7,100/- against the court’s direction of Kshs.20,000/- per month. The outstanding balance is Kshs.938,270/- which the Respondent claims from the Petitioner. The Petition and the Cross-Petition were canvassed by way of written submissions which the respective parties’ advocates later highlighted as follows;- THE PETITIONER’S WRITTEN SUBMISSIONS 7. The Petitioner submitted that when the minor was due for discharge from the hospital on 12th May, 2023, the total outstanding bill was Kshs.612,605. The Petitioner and the family paid a better part of the amount but they were unable to complete the payment at once and requested the Respondent for a reasonable payment plan. The Respondent refused and illegally detained the Petitioner and the minor in Zambezi ward, a ward specifically meant to detain persons who are yet to clear medical bills, insisting that they have to pay the entire medical bill before their release. 8. The daily costs of detaining the Petitioner and the minor was Kshs.6000/- which was illegally levied and as at 6th July, 2023, the total bill was Kshs.876,778/-. The Petitioner reduced the bill by paying Kshs.273,930 through a well-wisher. The Petitioner and the minor were restricted from stepping outside the ward environment thereby constraining their access to basics of life such as sunshine and fresh air. For fear that the Petitioner would flee, the Petitioner and the minor were separated from their family. 9. During the two months’ detention, the Petitioner and the minor were subjected to inhumane and degrading treatment which caused the minor to develop various complications leading to a readmission for cough, fever and diarrhea. The attempt by the Petitioner to give a payment plan was rejected by the Respondent who insisted that the Petitioner had to pay 75% of the outstanding balance and to further deposit an original title deed for the remaining 25% of the bill. These conditions were unreasonable and out of reach of the Petitioner. 10. The detention of the Petitioner and the minor over unpaid medical bill and holding onto them as lien was illegal and infringed the Petitioner’s and the minor’s rights under Articles 25, 28, 29, 39 and 53 of the Constitution of Kenya, 2010. The Petitioner’s advocates, acting on pro-bono basis, wrote a letter dated 10th July, 2023 to the Respondent demanding for the release of the Petitioner and the minor and offered a payment plan which the Respondent rejected. 11. The Petitioner was compelled to file the instant Petition and an application on 14th July, 2023. On 31st July, 2013, the court directed the Respondent to release the Petitioner and the minor upon the Petitioner depositing Kshs. 100,000/- and undertaking to make a monthly payment of Kshs,20,000/-. The Petitioner deposited Kshs.40,000/- and further Kshs.60,000/- to the Respondent and undertook to pay Kshs.20,000 every month. The Respondent finally released the Petitioner and the minor on 5th August, 2023 after 90 days of detention. 12. The Petitioner averred that a public institution cannot hold any human as lien for a debt. Article 25 (a) of the Constitution of Kenya, 2010, provides that the freedom from torture and cruel, inhuman or degrading treatment shall not limited. She relied on Michael Maina Kamami & Another v Attorney General [2019] eKLR and Edward Akong’o Oyugi & Others v Attorney General [2019] eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 5

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13. The Respondent violated the Petitioner’s and the minor’s inherent dignity by holding them as objects of lien contrary to Article 28 of the Constitution of Kenya, 2010. The Petitioner relied on S v Makwanyane {1995} AZCC 3; 1995 (3) SA 391 (CC) in para 328 where the court underscored the importance of human dignity. 14. The Respondent violated the Petitioner’s and the minor’s right to liberty and freedom of movement contrary to Articles 29 (1) and 39 (1) of the Constitution of Kenya, 2010, Article 6 of the African Charter on Human and Peoples’ Rights and Article 9 (1) of the International Convention on Civil and Political Rights (ICCPR). Article 11 of the ICCPR provides that no one shall be imprisoned merely for inability to pay a debt or discharge a contractual obligation. The Petitioner cited Christine Kidha v Nairobi Women’s Hospital [2016] eKLR where it was held that detention of a person to compel the person to perform a contractual duty is an insult to the rights of freedom and liberty. 15. The Petitioner argued that it is unacceptable for the Petitioner to pay for the accrued amount during detention. The amounts charged during detention are illegal and should not be computed. She placed reliance on Koigi wa Wamwere v The Attorney General [2015] eKLR and CKN & Another v Nairobi South Hospital (Petition E082 of 2021) [2022] KEHC 16497 (KLR) (Contractual and Human Rights) (20 December 2022) (Judgment). 16. On quantum of damages for the alleged violation of the Petitioner’s and the minor’s rights, the Petitioner urged this court to award general damages of Kshs. 53,000,000/- given the nature of the violations in this matter. The Petitioner relied on Koigi wa Wamwere v The Attorney General [2015] eKLR where the where kshs. 12 million was awarded as damages in global sum for violations of various rights, Emma Muthoni v Nairobi Women Hospital [2021] eKLR where the Petitioner was awarded Kshs.3,000,000/- for illegal detention of 2 weeks and Akusala A. Boniface v OCS Lang’ata Police Station & 4 Others [2018] eKLR where the Petitioner was awarded Kshs. 2,000,000/-. THE RESPONDENT’S WRITTEN SUBMISSIONS 17. The Respondent submitted that the Petitioner did not file any response to the cross-petition dated 12th September, 2023, and therefore it should be taken that the Petitioner is not opposed to the crosspetition. The minor was brought to the hospital on 24th April, 2023 and was admitted to the Intensive Care Unit (ICU) for eight (8) days. Having shown improvement, the minor was moved to the general ward. 18. On 12th May, 2023, the minor had sufficiently recovered for discharge and the hospital bill stood at Kshs. 512, 606/-. The Petitioner had not made any payment towards offsetting the outstanding bill. On 13th May, 2023 the Petitioner made an initial payment of Kshs. 273, 930/-. The Respondent continued to offer its service to the minor and as at 21st July, 2023 the medical bill has risen to Kshs.977,884/- 19. The Respondent had continually engaged the Petitioner with a view to getting a payment plan to settle the medical bill. The Petitioner adamantly refused to give a payment plan and only attempted to give a proposal of payment of Kshs.3000 through the Petitioner’s advocates demand letter dated 10th July, 2023. The proposal was unreasonable since it increased the period of recovery of the total outstanding amount without any security of payment. 20. The Respondent conducted a social assessment of the Petitioner and her family and determined that the Petitioner and her family were capable of settling the bill. As a Level 6 public hospital which depends on scarce taxpayers’ money and subject to budgetary allocation from the National Treasury, the Respondent was unable to waive the Petitioner’s medical bill. The Respondent’s committee on waiver was not persuaded that the Petitioner’s case merited a waiver. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 6

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21. In support of its cross-petition, the Respondent stated that the Petitioner was responsible for the escalation of the post-discharge bill because she failed to make a payment plan and take any substantial steps towards settling the bill. The Respondent had incurred accommodation, subsistence and other costs while taking care of the minor. The Respondent is entitled to be paid the services it rendered. 22. It took the intervention of the court for the Petitioner to issue a payment plan resulting in the Petitioner and the minor being discharged from the hospital. As at the date of leaving the hospital, the outstanding bill was Kshs. 945, 370/-. 23. Pursuant to the court’s intervention, the Petitioner paid Kshs.40,000/- and kshs.60,000/- on 1st August, 2023 and 2nd August, 2023 respectively. She later paid Kshs. 7100/- contrary to the court’s direction of Kshs.20,000/- per month, leaving an outstanding balance of Kshs. 938,270/-. 24. The Respondent argued that it is against the interest of justice for a person to avoid a medical bill and seek court protection through a constitutional petition. The Respondent relied on Gideon Kilundo & Daniel Kilundo Mwenga v Nairobi Women’s Hospital [2018] eKLR. The Respondent is entitled to payment of the outstanding amount because it is a public institution which is dependent on scarce funding and budgetary allocation from the National Treasury. 25. The non-payment of the outstanding medical bill is tantamount to a denial of other citizens the much needed medical services. The Respondent heavily relied on Kiawa v Coptic Hospital (Petition E309 of 2024)[2025] KEHC 8343 (KLR) for the position that it is the duty of the patient and the family to ensure that a medical bill is paid. The Petitioner had not made any arrangements to settle the outstanding medical bill prior to the court orders of 31st July, 2023. The Respondent relied on Munyi (Suing as Next Friend of CMM (Minor) & Another v Minet Kenya Insurance Brokers Limited & Another (Petition E481 of 2022) [2024] KEHC 15811 (KLR). 26. The Petitioner promptly paid a deposit of Kshs.100,000/- upon issuance of the court order indicating that the Petitioner had the financial means to settle the medical bill but willfully refused to do so. While the continued stay of a patient post-discharge may be undesirable, such circumstances do not translate to a violation of constitutional rights unless deliberate, unjustified and oppressive conduct on the part of the hospital is proved. The Respondent relied on Susan Wairimu Mwaniki v Kenyatta University Teaching, Referral and Research Hospital (KUTRRH) & 3 Others (Petition E053 of 2025) [2025] KEHC 13798 (KLR) (Constitutional and Human Rights) (30 September 2025) (Judgment). 27. The Respondent submitted that court orders are not issued in vain. After the issuance of the court orders on 31st July, 2023 the Petitioner exhibited unwillingness to comply with the said orders and settle the outstanding medical bill as directed. Parties cannot be left to choose what to obey and when to obey a court order. Once a court order is made the same is valid unless set aside on review or on appeal. The Respondent relied on Wambua Maithya v Wambua Maithya; Pharmaceutical Society of Kenya & 2 Others (Interested Parties)[2020] eKLR. She also relied on Fred Matiang’I the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 Others [2018] KECA 789 (KLR) to support the position that the Petitioner cannot seek protection from the court after disobeying the court orders and therefore her petition should be dismissed. 28. The Respondent alleged that the Petitioner has not satisfied the requirement of precision in constitutional petitions as held in Anarita Karimi Njeru v Republic (1997) eKLR. The Petitioner’s pleadings do not demonstrate the manner in which the Respondent’s conduct amounted to arbitrary detention, cruel treatment, or denial of dignity within the meaning of Articles 25 (a), 28 and 29 of the Constitution. There is no evidence that the Petitioner and the minor were placed under guard, restrained from leaving by force or subjected to any degrading treatment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 7

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29. The Respondent reiterated that the Petition lacks merit and should be dismissed. She urged this court to allow the cross-petition as the same remains unchallenged. She relied on Macharia & 7 Others v Attorney General (Petition 69, 68, 70, 71, 72, 74, 75 & 76 of 2020 (Consolidated)) [2022] KEHC 15481 (KLR) (Constitutional and Human Rights) (18 November 2022). ISSUES FOR DETERMINATION 30. This Petition, the Respondent’s cross-petition and the respective parties’ accompanying pleadings and submissions raise the following issues for determination; a. Whether the Petitioner’s rights and fundamental freedoms under Article 28, 29, 39 and 53 of the Constitution were violated by the Respondents; b. Whether the Respondent’s cross-petition is merited; and c. Whether the Petitioner and the Respondent are entitled to reliefs sought in the Petition and cross-petition respectively. ANALYSIS Whether the Petitioner’s rights and fundamental freedoms under Article 28, 29, 39 and 53 of the Constitution were violated by the Respondents 31. The Petitioner stated that on 24th April, 2023 she accompanied her child (the minor herein) when the minor was admitted at the Respondent hospital. The minor had fallen from the balcony and had severe head injury and conjunctivitis among other conditions. The minor was admitted in the Intensive Care Unit (ICU) for eight days and transferred to the normal ward where the Respondent continued to administer treatment. The minor was discharged on 12th May, 2023 with a total outstanding bill of Kshs.612, 605/-. 32. The Petitioner contended that although she paid a better part of the bill and requested for a reasonable payment plan, the Respondent refused and illegally detained them in Zambezi ward, a ward specifically meant to detain the patients that are yet to clear medical bills. The Petitioner and the minor were eventually released on 5th August, 2023 after 90 days of illegal detention following this court order dated 31st July, 2023. The order directed the Respondent to release the Petitioner and the minor upon the Petitioner paying a deposit of Kshs. 100,000/and giving an undertaking of a monthly payment of Kshs.20,000/-. 33. The Respondent countered the Petitioner’s claim by stating that the Petitioner failed to fulfil her obligation of settling the outstanding medical bill upon the minor’s discharge on 12th May, 2023. The Petitioner did not propose an alternative way of payment and he bill continued to accrue. 34. This court will not belabor on the issue of whether it is unlawful and unconstitutional to detain a person in hospital to compel payment of medical bill or any other contractual debt; that issue has been beaten to death. It is now trite that any form of detention not sanctioned by law that seeks to procure performance of a contractual debt is a violation of the right to liberty. Refer to Sonia Kwamboka Rasugu v Sandalwood Hotel & Resort Limited T/A Paradise Beach Resort & Leon Muriithi Ndubai 2013] eKLR. 35. The Court in Gideon Kilundo & Daniel Mwenga v Nairobi Women’s Hospital (2018) eKLR referenced to the quagmire arising when considering an issue where a party had incurred debt https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 8

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and then approaches court for a constitutional protection. While emphasizing the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others, the court aptly stated; “ I am not convinced that an illegal detention of a patient is one of the avenues for the recovery of a debt within our legal system, because the question which will arise is for how long the hospital will be expected to hold the patient. My take is that this is a classic example of a scenario where two wrongs will not make a right. In as much as the respondent is aggrieved by the failure by the petitioners to settle their debt. I find holding the patient is not one of the acceptable avenues or the debt recovery.” 36. Similarly in Kinoru v Labib Hospital (Petition E512 of 2021)[2025] KEHC 209 (KLR) (Civ) (22 January 2025) (Judgment) it was held;“ The dilemma that the court faces in deciding such cases is thus self-evident but at least there is jurisprudential unanimity that it is unlawful to detain any person without the authority of the law so as to compel the payment of a debt.” 37. The Respondent did not deny holding onto the Petitioner and the minor post the discharge date, 12th May, 2023. The Respondent stated that the continued stay was occasioned by the Petitioner’s failure to either settle the outstanding bill or propose a reasonable payment plant. The fact that the Petitioner and the minor could not leave the hospital at will until an agreement was reached on the payment of the medical bill amounted to constructive detention of the Petitioner and the minor to compel them to pay the outstanding medical debt. 38. According to the authorities cited above, this court finds that the constructive detention contravened the Petitioner’s and the minor’s rights to freedom and security of the person under Article 29 (a) of the Constitution. The article provides as follows;“ Every person has the right to freedom and security of the person, which includes the right not to be— (a) deprived of freedom arbitrarily or without just cause;…” 39. The rest of the alleged violations, including the contravention of fundamental rights and freedoms under articles 28, 39 and 53 of the Constitution, do not meet the constitutional requirement of precision as set in Anarita Karimi Njeru v Republic (1976 – 1980) 1 KLR 1272. 40. The Petitioner and the minor were in a hospital environment where they had been staying before recovery and discharge. The Petitioner has not demonstrated that there was any change in treatment and living conditions after discharge of the minor that would point to possible infractions touching on their fundamental rights under Articles 28, 39 and 53 as alleged. Whether the Respondent’s cross-petition is merited** 41. The court notes the Petitioner did not file a response to the cross-petition and therefore the claim stands uncontroverted. Nevertheless, this court still has the onus of checking whether the matters raised in the cross-petition are constitutional issues appropriate for hearing and determination by this court. 42. To determine whether the cross-petition is merited, it is necessary to confirm whether it raises constitutional issues as was held in CNM v WMG [2018] KEHC 8434 (KLR). The principle of constitutional avoidance as enunciated in the South African case of S vs Mhlungu 1995 (30SA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 9

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867 (CC) dictates that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue that course should be followed. 43. In the case of Consumers Federation of Kenya (COFEK) (Suing Through its Officials Namely S Mutor, E Kanake and Ochieng) v Cabinet Secretary for National Treasury and Economic Planning & 24 others [2024] KEHC 16213 (KLR) the court held that under the principle of constitutional avoidance, the jurisdiction of the Constitutional Court is limited to protecting and enforcing constitutional rights; and not to determine concerns of performance of contractual obligations which can be properly canvassed under civil law without the need to invoke the constitutional Court’s jurisdiction. 44. The cross-petition is anchored on the fact that medical services were rendered and medical expenses incurred. The Respondent alleges that the Petitioner is responsible for the escalation of the hospital bill post- discharge by failing to make a payment plan and to take steps to get out of hospital. 45. Matters of recovery of a debt as raised in this cross-petition are contractual claims that can be properly canvassed in a civil suit. The cross-petition does not claim any violation of constitutional rights or interpretation of the Constitution. The Respondent does not raise constitutional issues per se and therefore the cross-petition lacks merit according to the principle of constitutional avoidance illustrated in the above cited authorities. Whether the Petitioner and the respondent are entitled to reliefs sought in the Petition and crosspetition respectively 46. Having determined that the cross-petition does not raise any constitutional violation issue subject for determination by this court, the issue of the appropriate reliefs only pertains to the Petition. This court notes that the only constitutional infraction against the Petitioner and the minor caused by the constructive detention was against the right to freedom and security of the person under Article 29 (a) of the Constitution. 47. On quantum of damages, this court is guided by principles applicable in determining damages in Constitutional Petitions as illustrated in the following dicta from the Supreme Court in the case of Charles Muturi Macharia & 6 Others v Standard-Group & 4 Others (SC Petition No.13 (E015) of 2022); “ While it is not necessary to prove loss or damage in cases of constitutional rights violations, the court may consider the extent, nature, gravity and immensity of harm suffered by the aggrieved party when determining the appropriate remedy.” 48. The circumstances leading to the filing of this Petition are very unfortunate. The minor was in urgent need of medical care when he was taken to the Respondent hospital. The Respondent received the minor and accorded both the mother and the minor the necessary support and treatment. 49. The constructive detention of the Petitioner and the minor after discharge was not deliberate but was occasioned by failure to reach an agreement on settling the outstanding medical bill. It was a constitutional violation nonetheless. The court also notes the behavior of the parties during the impasse. The Respondent continued to accommodate, feed and give medical treatment to the Petitioner and the minor pending payment. The alleged illegal levy of kshs.6000/- per day during the detention was not proved. 50. The Respondent’s behavior leaned towards finding a solution and securing payment of the outstanding medical bill. Can it be said the same for the Petitioner? The Petitioner did not fully comply https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 10

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with this court’s direction issued on 31st July, 2023 that led to the Petitioner’s and the minor’s release from the hospital. The Petitioner did not honour her undertaking of paying Kshs.20,000/- per month to the hospital commencing on 30th August, 2023 until payment in full. 51. This court finds that this is an appropriate case for an award of nominal damages which is set at a global sum Kshs.20,000/- for both the Petitioner and the minor. The Court of Appeal in Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR) (17 December 2021) (Judgment) held that an award of general damages in constitutional petitions is discretionary and will depend on the circumstances of each case. The court aptly stated;“ As regards the other types of damages that can be awarded in constitutional petitions, nominal damages typically consist of an insignificant allocation awarded upon proof that the defendant has violated the plaintiff's legal and constitutional rights. They are awarded for the purposes of declaring and vindicating legal and constitutional rights, and do not require proof of harm.” 52. The Petitioner stated in the Petition that at the time of discharge on 12th May, 2023, the medical bill was Kshs.612,605/-. In her supporting affidavit dated 14th July, 2023, she stated that the balance of the medical bill was Kshs.705,334/-. This lack of consistency on the exact balance leaves this court with no other choice than to consider the figure quoted by the Respondent. 53. The Respondent stated in its written submission that as at the time of discharge on 12th May, 2023, the outstanding balance was kshs.512,606/-. This will be treated as the pending bill as at the time of the minor’s discharge on 12th May, 2023. Any charges beyond this period incurred during the unlawful detention of the petitioner and the minor lack legal basis and hence irrecoverable. Refer to Emmah Muthoni Njeri v Nairobi Women’s Hospital [2021] KEHC 8797 (KLR) where the court held; “ The Petitioner has no obligation to pay any expenses that may have been incurred by the Respondent in connection with her unlawful detention. No person should be compensated for costs or expenses incurred in the commission and perpetuation of unconstitutional acts.” 54. The Respondent stated in its answer to petition and cross-petition dated 12th September, 2023 and replying affidavit dated 24th July, 2023, that on 13th May, 2023, the Petitioner paid Kshs.273,930/-. The Petitioner also paid Kshs.Kshs.100,000/- and Kshs.7100/- pursuant to this court’s direction dated 31st July, 2023. The total amount paid is therefore Kshs.381,030 leaving an unpaid amount of Kshs.131,576/-. The Kshs.20,000/- awarded to the Petitioner shall be set off against the balance of Kshs.131,576/-. The pending payable medical bill shall be Kshs.111,576/-. 55. As regards costs of the Petition and the Cross-petition, the court notes that the Petitioner partially succeeds in her Petition, the cross-petition fails but the court finds that there is a medical bill due that has to be paid by the Petitioner. The public interest aspect of this matter warrants this court to order that each party shall bear its own costs. FINDINGS AND DETERMINATIONS 56. For the foregoing reasons, this court grants the following orders;a. A declaration that the Petitioner and the minor were unlawfully detained at the Respondent’s hospital in violation of Article 29 (a) of the Constitution. b. The Petitioner and the minor are awarded nominal damages in the sum of Kshs.20,000/- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 11

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c. The Petitioner to pay the Respondent Kshs.111,576/- as the remaining balance of the medical bill. d. Each party to bear its own costs of the Petition and the cross-petition. Orders Accordingly DATED SIGNED AND DELIVERED VIA TEAMS AT VOI THIS 12TH DAY OF JUNE, 2026 A.MSHILA JUDGE In the presence of; Sanja/Trizah – Court Assistants Wamatu For the Petitioner Oduor holding brief for Thuo For the Respondent CONST. PETITION NO. 4 OF 2023 0 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8333/eng@2026-06-12 12

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