Lawyer Allan Maleche (2nd left), leaves Milimani law courts in the company of (left to right) Daniel Ngetich, Patrick Kipngetich after he filed a suit challenging the government over their detention and imprisonment for absconding T.B medication.
BY SAM ALFAN
A Nairobi court has ruled that a directive to detain two people who declined TB treatment was unconstitutional.
Justice Mumbi Ngugi said that the jailing of two men in 2010 for two months for having defaulted on their prescribed medical treatment for TB was unconstitutional.
She, as a result of the decision, directed the ministry to file an affidavit in the court within 90 days to shows policies on establishment of proper isolation conditions for TB Treatment.
Daniel Ng’etich and Patrick Kipng’etich Kirui sued the ministry of health for imprisoning them at Kapsabet GK Prison for two months as a means of confinement.
The two want to be compensated for the physical suffering occasioned by the unlawful imprisonment.
However, Judge Ngugi did not award them the amounts demanded noting that the application was in interest of the larger public.
She said the decision taken by the government was right but was wrongly executed.
“While isolation is permissible, the detention of the petitioners in Kabsabet GK prison was not in accordance with the public health act,” she ruled.
The judge also noted that the confinement was justified as the disease was infectious and was done in public interest but held that it ought to have been done in proper institutions.
The two were arrested on August 12, 2010 for having severally defaulted on their prescribed medical treatment for TB and remanded in the police cells before being arraigned in court.
They pleaded guilty and the Magistrate who was presiding over the case ordered that they be confined in prison cells for eight months. However the two were released after serving two months following interventions from civil society organizations.
Through their Lawyer Allan Chesa Maleche the two argued that the Prison Act does not provide for isolation facilities for TB Patients and holding TB Patients in prison not only put at risk the other prisoners but the prison wardens and their family members as well.
“The two were held in prison facility in spite of the fact that our Kenyan prisons are overcrowded and poorly ventilated making it a conducive condition for the spread of TB,” he said.