BATHSEBA MAYOMI OPINI AND SARAH NYAKERARIO OPINI VS REUBEN OPINI AND RUTH OPINI

Introduction

1. This Petition is in respect to the constitutional rights of one Absalom Opini Mekenye. The Petitioners are the biological daughters of the said Absalom Opini Mekenye, while the 1^st and 2^nd Respondents are also his biological son and daughter respectively. The 3^rd Respondent is a State department under the Ministry of Labour and Social Protection in charge of facilitating integration, coordination and harmonization of social protection programmes in Kenya under a national social protection system. The 4^th Respondent is the Officer Commanding Police Station a Manga Police Station in charge of keeping law and order.

The Petition

1. The Petitioners seek the following orders through their Petition dated 8^th April 2024,: -
2. SPENT.
3. That the Honourable Court issues Orders directing the nearest Social Protection Officer and OCS to facilitate and ensure the Petitioners take Absalom Opini Mekenye to hospital for immediate medical attention. (SPENT)
4. A Restraining Order be granted restraining the 1^st and 2^nd Respondents and/or their agents from: -
5. Holding and/or accessing the incomes from the rental properties in Jogoo Kisii town and tea farm at Keginga of Absalom Opini Mekenye pending the hearing and determination of this Application inter-partes.
6. The Petitioners be granted sole powers to hire a professional cook and professional caregiver who will be solely responsible for attending to the medical, nutritional, hygienic and sanitary needs of their father Absalom Opini Mekenye.
7. The costs of this Petition be provided for.
8. Any such other orders as the Honourable Court shall deem just.
9. The petition is supported by the 1^st Petitioner’s affidavit wherein she avers that their father, Absalom Opini Mekenye, is living in deplorable conditions and is in urgent need of medical care and supervised guardianship. She states that on or about March 2024 and April 2024, she hired the services of a caregiver to take care of her father but that before the caregiver could settle down to work, the 1^st and 2^nd Respondents blocked and jettisoned him thereby putting their father’s life and health in great danger. It is her case that she is meaningfully employed and is therefore capable of taking care of her father who needs the care of a professional caregiver.
10. The Petitioners filed an Application seeking interim orders which are a replica of the 1^st and 2^nd prayers in this Petition.
11. On 16^th May 2024 the Applicant’s advocate sought and obtained orders in prayers No. 3 and 4 in this Petition together with an Order that all the siblings of the Petitioner’s father be appointed as signatories to their father’s bank accounts for the tea farm proceeds and rent collection.
12. At the hearing of the Petition on 17^th July 2024, Mr. Murithi, Counsel for the Respondents informed the Court that the Respondents did not wish to participate in the proceedings. I also note that the Respondent’s did not file any responses to the Petition and Application. This means that the Petition was not opposed.

Issues for Determination

1. The only issue for my determination is whether the Petition is merited.
2. The Constitution of Kenya (2010) provides for the protection of the life and dignity of a person under the Bill of Rights as follows:-

26. Right to life

(1) Every person has the right to life.

28. Human dignity

Every person has inherent dignity and the right to have that dignity respected and protected.

1. The Constitution further provides for the protection of economic and social rights under Article 43 as follows: -

43. Economic and social rights

(1) Every person has the right—

1. to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
2. to accessible and adequate housing, and to reasonable standards of sanitation;
3. to be free from hunger, and to have adequate food of acceptable quality;
4. to clean and safe water in adequate quantities;
5. to social security; and
6. to education.

(2) A person shall not be denied emergency medical treatment.

(3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.

1. It was the Petitioners’ case that their father Absalom Opini Mekenye was living in deplorable conditions and had been denied access to medical care and the services of a professional caregiver. The Petitioners stated that their father was subjected to a dirty environment, that he was denied proper nutrition. They stated that their father’s condition was worsened by the fact that the 1^st and 2^nd Respondents cordoned off any help that was sent to them to ensure that their father had a proper quality of life. It was their further case that the 1^st and 2^nd Respondents took all their father’s income and refused to take him back to the hospital for review in violation of his rights to life, medical care and guardianship.
2. I have considered the above assertions, which were not controverted by the 1^st and 2^nd Respondents. Article 57 of the Constitution mandates the family of aged persons and the State to provide a life of dignity and reasonable care and assistance to the aged members of the community. It states as follows: -

57. Older members of society

The State shall take measures to ensure the rights of older persons—

1. to fully participate in the affairs of society;
2. to pursue their personal development;
3. to live in dignity and respect and be free from abuse; and
4. to receive reasonable care and assistance from their family and the State.
5. From the uncontested facts presented herein, I find that the 1^st and 2^nd Respondents acted in violation of the rights of their aged father, Absalom Mekenye, by denying him access to medical care, the right to proper nutrition and a clean sanitary environment. They also denied him his right to dignity under Articles 28 and 57 (c) and further denied him the reasonable care and assistance as stipulated under Article 57 (d).
6. I also note the impact of living in deplorable conditions on the mental and general health of a person, particularly an elderly citizen. The International Covenant on Economic, Social and Cultural Rights provides at Article 12(1) as follows:-

“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

1. The importance of health cannot be gainsaid. The Committee on Economic, Social and Cultural Rights underscored this in its General Comment No. 14 on the Right to Health thus:-

“Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.”

1. This Court draws from the above provisions and holds that Absalom Opini Mekenye has a right to the enjoyment of a life of dignity in his sunset years and the highest attainable standards of health, both from his family members and the State. Having found that he was subjected to living in the conditions described in this Petition, I conclude that his rights were violated and he is in urgent need of protection from the said violations.
2. In the final analysis, I find that this Petition is merited and I therefore allow the prayers sought therein. In view of the matters set out above, I grant the following declarations: -
3. That the care and legal custody of the Petitioner’s father Absalom Opini Mekenye is hereby granted to the Petitioners herein.
4. A Restraining Order is hereby issued restraining the 1^st and 2^nd Respondents and/or their agents from holding and/or accessing the incomes from the rental properties in Jogoo Kisii town and tea farm at Keginga of Absalom Opini Mekenye.
5. The Petitioners are hereby granted sole powers to hire a professional cook and professional caregiver who will be solely responsible for attending to the medical, nutritional, hygienic and sanitary needs of their father Absalom Opini Mekenye.
6. In line with Order (3) above, the Social Protection Officer shall ensure that Absalom Opini Mekenye is afforded proper and regular medical care and shall confirm that he is settled in appropriate and clean sanitary environment.
7. Each party shall bear their costs in this Petition.
8. It is so ordered.