Constitutional and Human Rights Division Judge, Justice Mumbi Ngugi, heard submissions by Counsel for the respondents, Mr. Obura, that such arrest and detention of TB patients is justifiable in the interest of the public.
One of the prayers sought by the petitioners is an order directed to the Minister of Health to develop a policy on the involuntary confinement of individuals with TB that is compliant with the Constitution of Kenya and international best practices. Mr. Obura admitted that there is no policy in place to deal with involuntary confinement of TB patients. The case therefore also has huge implications on policy.
Daniel Ngetich, Patrick Kipng’etich Kirui and Kenya Legal & Ethical Issues Network on HIV & AIDS (KELIN), the Petitioners, are represented by Mr. Allan Maleche, who filed the petition. Ms. Belice Odamna, who is assisting Counsel for the Petitioners, argued that while limiting the rights of TB patients, an analysis must be done whether such arrest and detention is reasonable and justifiable, and that there is a rational connection between the arrest and detention of TB patients and the purpose it seeks to achieve.
The 1st and 2nd petitioners Daniel Ng’etich and Patrick Kipng’etich Kirui were arrested on 12 August, 2010 for having severally interrupted their prescribed TB treatment cycle. They were remanded in the police cells in Kapsabet with other accused persons and thereafter, on 13 August, 2010 arraigned before the Principal Magistrate at Kapsabet court.
Mr. Zachariah Maina Bett, a Public Health Officer in Nandi County, swore the affidavit that formed the basis for the magistrate’s order of the petitioners’ confinement in prison for eight months. The two were released from prison after serving two months of their sentence following intervention from civil society organizations who made a successful application to the High Court sitting in Eldoret.
