1. This court has been moved by way of the Notice of Motion dated the 29th May, 2025, under Sections 3 & 15 of the Persons Deprived of Liberty Act and Articles 20, 49, 50, 51 and 159 of the Constitution and all the enabling provisions of the law. The applicant has sought for the following Orders;
1) Spent.
2) That the Officer in charge of Kamiti Maximum Security Prison (or any other facility within which the accused may be lawfully held) does forthwith prepare and provide to the court a Comprehensive report on the health of the accused, Ferdinand Waititu, his past and current treatment at the prison since his imprisonment, the present management of his illnesses and the prison’s capacity /resources/ ability or otherwise to facilitate the Applicant’s right to proper and effectual healthcare.
3) That such further or other Orders as are appropriate for the effective and fair administration of justice to be issued.
2. The application is premised on the grounds that; the applicant is seriously ill and has been admitted at Kenyatta National Referral Hospital since 19th May, 2025 where he has, and continues to receive treatment, including surgery. That it is imperative that the exact nature and extent of his illness is brought to the attention of the court through preparation of a comprehensive Medical Report for it to determine whether he is receiving proper health care.
3. The applicant avers that on his admission at Kenyatta National Hospital, he was subjected to a battery of tests and from the results that he has already received and those yet to be out, he is seriously ill and in need of care that cannot be provided within a prison environment and that under Sections 3 and 15 of the Persons Deprived of Liberty Act, he is entitled to proper healthcare, notwithstanding his incarceration.
4. He avers that though he has been convicted by the trial court and his conviction is lawful, he has lodged an appeal against the conviction, and the sentence, and that he has not been condemned to death for any capital offence and if his present incarceration can be a direct cause or significant contributor to his demise, then his sentence will have been converted to an execution.
5. The respondent has opposed the application vide Grounds of Opposition dated the 4th day of June, 2025 on the following Grounds;
1) That the applicant was lawfully incarcerated at Kamiti Maximum Prison following the dismissal of his bail pending appeal, on the 3rd March, 2025
2) That the relevant provisions of the law guiding the examination and/or removal of sick prisoners to Hospital is Section 39 of The Prison’s Act, Cap 90.
3) That the respondent has no role to play in ensuring that a lawfully held prisoner gets adequate medical services and is therefore wrongfully enjoined in the instant application.
4) That it is the duty of the Medical Officer in Charge of a Hospital in consultation with the Officer In Charge of Prison to ensure the applicant gets access to adequate medical services.
5) That the instant application is a blatant abuse of the court process.
6) That the instant application is aimed at causing substantial and unwarranted delays in the hearing and determination of the Appeal pending before this Honourable court.
6. The application was disposed of by way of written submissions.
APPLICANT’S /APPELLANT’S SUBMISSIONS
7. The applicant took issue with the fact that the respondent did not file a replying affidavit challenging the facts he has stated in his supporting affidavit and as such, he avers that the facts he has deponed to, are deemed to have been admitted and thus, the only arguments that can be presented before the court are purely on questions of law.
8. The applicant has relied on the Provision of Section 3(1) of Persons Derived of Liberty Act, 2014 and submitted that he has adduced evidence which has not been controverted by the respondent that he is seriously ill and that the Court in MCCR No. E1021 OF 2024 granted his request to be sent to Kenyatta National Hospital for treatment. That the Comprehensive medical report is necessary for purposes of ensuring that the applicant is receiving proper and competent health care and his life is not at risk.
9. The applicant submits that his life and, indeed that of any other persons should not be subjugated to the exigencies of procedural inconveniences and the most the court can do is to confirm, if it is told that a prisoner under its sway is in mortal peril. That the medical report being sought will only make the court richer, not poorer, and ultimately the wiser in dealing with the situation anticipated in the pending application for review of bail.
10. On the issue raised by the respondent on the applicant’s failure to enjoin either the prison or the referral Hospital, the applicant has submitted that in law, no suit (proceedings) may be defeated for either misjoinder or non-joinder of parties. The applicant made reference to Oder 1 Rule 9 of the Civil Procedure Rules for lack of a similar provision in the Criminal Procedure Code, and relied on the case of Maureen Onsongo Vs. EOH Limited an EOH /copy Cat Company Limited (2021) KEELRC 676 (KLR) in which the court stated that misjoinder or non- joinder of parties cannot be a ground to defeat a suit.
11. The applicant has further submitted that nowhere in its submissions has the respondent explained how the absence of the excluded parties it has referred to, will impact negatively on the dispensation of justice by the court, more fundamentally, how either the prison or the Hospital will be prejudiced by the granting of the Order sought by the applicant and in any event, the court has the power to Order the appearance (and) joinder of any party it considers necessary for ends of justice to be met.
RESPONDENT’S SUBMISSIONS
12. The respondent has set out the history of this matter since the applicant filed the appeal herein and has submitted that the application is made in bad faith and it is a blatant waste of judicial time and the same should be dismissed. The respondent avers that the parties should prioritize the hearing of the main appeal given that the court on 8th May, 2025 gave directions on hearing and determination of the appeal and directed the parties to file their respective submissions and when the matter was scheduled for mention 18th June, 2025 to confirm filing of submissions, the applicant filed the present application.
13. On whether the court has jurisdiction to entertain the application, the respondent relied on the case of Aloise Onyango Odhiambo & Others Vs. A.G (2019) eKLR and the provisions of Section 27 of the Prisons Act and the Persons Deprived of Liberty Act, 2014 and submitted that the said Acts provides for a mechanism for treatment of inmates.
14. The respondent submitted that since the law has already provided for an internal administrative mechanism to be undertaken in the prison facility, the same must be adhered to, and as such, the court has no jurisdiction to hear this application and to grant the Orders sought herein.
15. On whether the applicant has enjoined the right parties, the respondent relied on the Provisions of the Prisons’ Act and submitted that it is the duty of the medical Officer in Charge of a Hospital in consultation with the Officer in Charge of Prison to ensure the applicant gets access to adequate medical facilities. That the respondent has no role in ensuring that a lawfully held prisoner gets adequate medical services and/or proceed to provide a comprehensive medical report to the court and therefore, it is wrongly enjoined.
16. The respondent further submitted that a medical report is a confidential document, and as such, falls under the Provision of Section 70A of the Prison’s Act where the Commissioner of Prisons is mandated to ensure control, regulation of the information in a register with the necessary safeguards for protection and confidentiality of the data. That the applicant needs to provide proof in writing of having requested for a comprehensive Report of his health, current treatment at the Prison since his imprisonment, the present management of his illnesses and the Prison’s capacity/resources or otherwise to facilitate the applicant’s right to proper and effectual healthcare.
17. The respondent further submitted that the applicant needs to have demonstrated why the intervention of this court is necessary in obtaining the medical report, and that, he should have enjoined the Commissioner of Prisons, The Chief Executive Officer, Kenyatta National Hospital and the Officer in charge Kamiti Maximum Prison. The respondent thus submitted that the application in an abuse of the court process and made reference to the case of Muchanga Investments Limited Vs. Safaris Unlimited (Africa) Ltd & 2 Others (Civil Appeal No. 25 of 2002 (2009) KLR 229 on what constitutes abuse of court process.
18. The court has considered the application and the supporting affidavit, the Grounds of Opposition and the Submissions filed herein.
ANALYSIS AND DETERMINATION
19. The applicant has moved this court primarily under Sections 3 & 15 of the Persons Deprived of Liberty Act and Articles 20, 49, 50, 51 and 159 of the Constitution. Section 3(1) provides as follows;
“Every person deprived of liberty is entitled to the protection of all fundamental rights and freedoms subject to such limitations as may be permitted under the Constitution and that nothing in this Act may be construed as limiting the rights and freedoms of persons deprived of liberty otherwise than in accordance with Article 29(f) and 51 of the Constitution.”
Section 15 provides;
“A person detained, held in custody or imprisoned is on the recommendations of a Medical Officer of Health, entitled to medical examination, treatment and healthcare, including preventive healthcare’’.
20. The applicant in his supporting affidavit has deponed that he is currently admitted at Kenyatta National Hospital in critical condition following deterioration of existing chronic illnesses and the emergence of new life-threatening illnesses. He has averred that a comprehensive report on his health is necessary for purposes of ensuring that he receives proper and comprehensive health care.
21. The respondent in opposing the applicant has relied on the Provision of the Prisons Act as well as those of Persons Deprived of Liberty Act, 2014 and it is its case that the court lacks jurisdiction to issue the Orders that the applicant has sought for, terming the application as an abuse of the court process.
22. This court has perused the relevant Provisions and the holding in the case of Aloise Onyango Odhiambo & others Vs. AG & others (2019) relied on by the respondent herein, on the jurisdiction of the prisoners to lodge complaints and the necessary action to be taken. Section 27 provides for the manner of dealing with complaints by persons deprived of liberty. It states;
(1) Any person deprived of liberty who considers that his or her right under this Act has been denied or violated may lodge a complaint either orally or in writing to the administrative officer in charge of the facility in which the person is detained.
(2) In addition to the provisions of subsection (1), complains may be instituted by a person acting on behalf of a person deprived of liberty who cannot act in their own name.
(3) Where the complaint is made orally, the officer in charge shall investigate and take reasonable measures to address the complaint and report the complaint and furnish the complainant with-
a) A written statement of the measures taken to address the complaint
b) The recommendations made in settlement of the complaint.
23. The respondent has contended that the applicant has not followed the right procedure that is set out in the Prisons Act and the Persons Deprived of Liberty Act, 2014. I am in agreement that he may not have moved this court properly under the said Acts. However, this court has noted that the applicant appeared before Hon. R.M NDOMBI in criminal case Number MCCDR /E1021 of 2024 who made an Order that the applicant be escorted to Kenyatta National Hospital to access treatment from his personal doctor and for further medical investigations and advice. This Order was given on 19th May, 2025 and the republic was represented in court and it is pursuant to the said Order that the applicant was admitted at Kenyatta National Hospital. This fact has not been denied.
24. The case of Aloise (supra) was a Petition on violation of the Petitioner’s rights and in its judgment the court dealt at length with the rights of Persons Derived of Liberty and how they should channel any complaints that they may have. To the contrary, the applicant’s application herein is not a complaint, he has just sought for a comprehensive report on his health and the prison’s capacity/resources/ability or otherwise to facilitate his right to proper and effectual healthcare.
25. As earlier stated hereinabove, the applicant may not have followed the right procedure under the relevant provisions of the law. It is also true that the respondent herein has no role to pray in ensuring that a prisoner gets adequate medical services, but all what the applicant is praying for is a comprehensive report and in my view, the respondent and indeed in any other person/ or party stands to suffer no prejudice if the Orders sought herein are granted. In the circumstances, and in the spirit of Article 159 of the Constitution and being guided by the holding in the case of Republic Vs. District Land Registrar, Uasin Gishu and Another (2014) eKLR, courts of law are enjoined to sustain suits rather than terminate them on technicalities.
26. In the end, I hereby allow the application and grant prayer (2) thereof.
27. It is so ordered.
Dated, signed and delivered virtually on this 2nd day of July, 2025.
.......................
L. M. NJUGUNA
JUDGE
In the presence of:-
Miss Mwila appearing with Mr. Mwadaru for the DPP/Respondent
Mr. Jeremy Nyaga for the Appellant in Appeal No. E008/2025
Mr. Mutuku appearing with Mr. Kibe for the Applicant/Appellant in E006/2025
Court assistant – Aden
1) Spent.
2) That the Officer in charge of Kamiti Maximum Security Prison (or any other facility within which the accused may be lawfully held) does forthwith prepare and provide to the court a Comprehensive report on the health of the accused, Ferdinand Waititu, his past and current treatment at the prison since his imprisonment, the present management of his illnesses and the prison’s capacity /resources/ ability or otherwise to facilitate the Applicant’s right to proper and effectual healthcare.
3) That such further or other Orders as are appropriate for the effective and fair administration of justice to be issued.
2. The application is premised on the grounds that; the applicant is seriously ill and has been admitted at Kenyatta National Referral Hospital since 19th May, 2025 where he has, and continues to receive treatment, including surgery. That it is imperative that the exact nature and extent of his illness is brought to the attention of the court through preparation of a comprehensive Medical Report for it to determine whether he is receiving proper health care.
3. The applicant avers that on his admission at Kenyatta National Hospital, he was subjected to a battery of tests and from the results that he has already received and those yet to be out, he is seriously ill and in need of care that cannot be provided within a prison environment and that under Sections 3 and 15 of the Persons Deprived of Liberty Act, he is entitled to proper healthcare, notwithstanding his incarceration.
4. He avers that though he has been convicted by the trial court and his conviction is lawful, he has lodged an appeal against the conviction, and the sentence, and that he has not been condemned to death for any capital offence and if his present incarceration can be a direct cause or significant contributor to his demise, then his sentence will have been converted to an execution.
5. The respondent has opposed the application vide Grounds of Opposition dated the 4th day of June, 2025 on the following Grounds;
1) That the applicant was lawfully incarcerated at Kamiti Maximum Prison following the dismissal of his bail pending appeal, on the 3rd March, 2025
2) That the relevant provisions of the law guiding the examination and/or removal of sick prisoners to Hospital is Section 39 of The Prison’s Act, Cap 90.
3) That the respondent has no role to play in ensuring that a lawfully held prisoner gets adequate medical services and is therefore wrongfully enjoined in the instant application.
4) That it is the duty of the Medical Officer in Charge of a Hospital in consultation with the Officer In Charge of Prison to ensure the applicant gets access to adequate medical services.
5) That the instant application is a blatant abuse of the court process.
6) That the instant application is aimed at causing substantial and unwarranted delays in the hearing and determination of the Appeal pending before this Honourable court.
6. The application was disposed of by way of written submissions.
APPLICANT’S /APPELLANT’S SUBMISSIONS
7. The applicant took issue with the fact that the respondent did not file a replying affidavit challenging the facts he has stated in his supporting affidavit and as such, he avers that the facts he has deponed to, are deemed to have been admitted and thus, the only arguments that can be presented before the court are purely on questions of law.
8. The applicant has relied on the Provision of Section 3(1) of Persons Derived of Liberty Act, 2014 and submitted that he has adduced evidence which has not been controverted by the respondent that he is seriously ill and that the Court in MCCR No. E1021 OF 2024 granted his request to be sent to Kenyatta National Hospital for treatment. That the Comprehensive medical report is necessary for purposes of ensuring that the applicant is receiving proper and competent health care and his life is not at risk.
9. The applicant submits that his life and, indeed that of any other persons should not be subjugated to the exigencies of procedural inconveniences and the most the court can do is to confirm, if it is told that a prisoner under its sway is in mortal peril. That the medical report being sought will only make the court richer, not poorer, and ultimately the wiser in dealing with the situation anticipated in the pending application for review of bail.
10. On the issue raised by the respondent on the applicant’s failure to enjoin either the prison or the referral Hospital, the applicant has submitted that in law, no suit (proceedings) may be defeated for either misjoinder or non-joinder of parties. The applicant made reference to Oder 1 Rule 9 of the Civil Procedure Rules for lack of a similar provision in the Criminal Procedure Code, and relied on the case of Maureen Onsongo Vs. EOH Limited an EOH /copy Cat Company Limited (2021) KEELRC 676 (KLR) in which the court stated that misjoinder or non- joinder of parties cannot be a ground to defeat a suit.
11. The applicant has further submitted that nowhere in its submissions has the respondent explained how the absence of the excluded parties it has referred to, will impact negatively on the dispensation of justice by the court, more fundamentally, how either the prison or the Hospital will be prejudiced by the granting of the Order sought by the applicant and in any event, the court has the power to Order the appearance (and) joinder of any party it considers necessary for ends of justice to be met.
RESPONDENT’S SUBMISSIONS
12. The respondent has set out the history of this matter since the applicant filed the appeal herein and has submitted that the application is made in bad faith and it is a blatant waste of judicial time and the same should be dismissed. The respondent avers that the parties should prioritize the hearing of the main appeal given that the court on 8th May, 2025 gave directions on hearing and determination of the appeal and directed the parties to file their respective submissions and when the matter was scheduled for mention 18th June, 2025 to confirm filing of submissions, the applicant filed the present application.
13. On whether the court has jurisdiction to entertain the application, the respondent relied on the case of Aloise Onyango Odhiambo & Others Vs. A.G (2019) eKLR and the provisions of Section 27 of the Prisons Act and the Persons Deprived of Liberty Act, 2014 and submitted that the said Acts provides for a mechanism for treatment of inmates.
14. The respondent submitted that since the law has already provided for an internal administrative mechanism to be undertaken in the prison facility, the same must be adhered to, and as such, the court has no jurisdiction to hear this application and to grant the Orders sought herein.
15. On whether the applicant has enjoined the right parties, the respondent relied on the Provisions of the Prisons’ Act and submitted that it is the duty of the medical Officer in Charge of a Hospital in consultation with the Officer in Charge of Prison to ensure the applicant gets access to adequate medical facilities. That the respondent has no role in ensuring that a lawfully held prisoner gets adequate medical services and/or proceed to provide a comprehensive medical report to the court and therefore, it is wrongly enjoined.
16. The respondent further submitted that a medical report is a confidential document, and as such, falls under the Provision of Section 70A of the Prison’s Act where the Commissioner of Prisons is mandated to ensure control, regulation of the information in a register with the necessary safeguards for protection and confidentiality of the data. That the applicant needs to provide proof in writing of having requested for a comprehensive Report of his health, current treatment at the Prison since his imprisonment, the present management of his illnesses and the Prison’s capacity/resources or otherwise to facilitate the applicant’s right to proper and effectual healthcare.
17. The respondent further submitted that the applicant needs to have demonstrated why the intervention of this court is necessary in obtaining the medical report, and that, he should have enjoined the Commissioner of Prisons, The Chief Executive Officer, Kenyatta National Hospital and the Officer in charge Kamiti Maximum Prison. The respondent thus submitted that the application in an abuse of the court process and made reference to the case of Muchanga Investments Limited Vs. Safaris Unlimited (Africa) Ltd & 2 Others (Civil Appeal No. 25 of 2002 (2009) KLR 229 on what constitutes abuse of court process.
18. The court has considered the application and the supporting affidavit, the Grounds of Opposition and the Submissions filed herein.
ANALYSIS AND DETERMINATION
19. The applicant has moved this court primarily under Sections 3 & 15 of the Persons Deprived of Liberty Act and Articles 20, 49, 50, 51 and 159 of the Constitution. Section 3(1) provides as follows;
“Every person deprived of liberty is entitled to the protection of all fundamental rights and freedoms subject to such limitations as may be permitted under the Constitution and that nothing in this Act may be construed as limiting the rights and freedoms of persons deprived of liberty otherwise than in accordance with Article 29(f) and 51 of the Constitution.”
Section 15 provides;
“A person detained, held in custody or imprisoned is on the recommendations of a Medical Officer of Health, entitled to medical examination, treatment and healthcare, including preventive healthcare’’.
20. The applicant in his supporting affidavit has deponed that he is currently admitted at Kenyatta National Hospital in critical condition following deterioration of existing chronic illnesses and the emergence of new life-threatening illnesses. He has averred that a comprehensive report on his health is necessary for purposes of ensuring that he receives proper and comprehensive health care.
21. The respondent in opposing the applicant has relied on the Provision of the Prisons Act as well as those of Persons Deprived of Liberty Act, 2014 and it is its case that the court lacks jurisdiction to issue the Orders that the applicant has sought for, terming the application as an abuse of the court process.
22. This court has perused the relevant Provisions and the holding in the case of Aloise Onyango Odhiambo & others Vs. AG & others (2019) relied on by the respondent herein, on the jurisdiction of the prisoners to lodge complaints and the necessary action to be taken. Section 27 provides for the manner of dealing with complaints by persons deprived of liberty. It states;
(1) Any person deprived of liberty who considers that his or her right under this Act has been denied or violated may lodge a complaint either orally or in writing to the administrative officer in charge of the facility in which the person is detained.
(2) In addition to the provisions of subsection (1), complains may be instituted by a person acting on behalf of a person deprived of liberty who cannot act in their own name.
(3) Where the complaint is made orally, the officer in charge shall investigate and take reasonable measures to address the complaint and report the complaint and furnish the complainant with-
a) A written statement of the measures taken to address the complaint
b) The recommendations made in settlement of the complaint.
23. The respondent has contended that the applicant has not followed the right procedure that is set out in the Prisons Act and the Persons Deprived of Liberty Act, 2014. I am in agreement that he may not have moved this court properly under the said Acts. However, this court has noted that the applicant appeared before Hon. R.M NDOMBI in criminal case Number MCCDR /E1021 of 2024 who made an Order that the applicant be escorted to Kenyatta National Hospital to access treatment from his personal doctor and for further medical investigations and advice. This Order was given on 19th May, 2025 and the republic was represented in court and it is pursuant to the said Order that the applicant was admitted at Kenyatta National Hospital. This fact has not been denied.
24. The case of Aloise (supra) was a Petition on violation of the Petitioner’s rights and in its judgment the court dealt at length with the rights of Persons Derived of Liberty and how they should channel any complaints that they may have. To the contrary, the applicant’s application herein is not a complaint, he has just sought for a comprehensive report on his health and the prison’s capacity/resources/ability or otherwise to facilitate his right to proper and effectual healthcare.
25. As earlier stated hereinabove, the applicant may not have followed the right procedure under the relevant provisions of the law. It is also true that the respondent herein has no role to pray in ensuring that a prisoner gets adequate medical services, but all what the applicant is praying for is a comprehensive report and in my view, the respondent and indeed in any other person/ or party stands to suffer no prejudice if the Orders sought herein are granted. In the circumstances, and in the spirit of Article 159 of the Constitution and being guided by the holding in the case of Republic Vs. District Land Registrar, Uasin Gishu and Another (2014) eKLR, courts of law are enjoined to sustain suits rather than terminate them on technicalities.
26. In the end, I hereby allow the application and grant prayer (2) thereof.
27. It is so ordered.
Dated, signed and delivered virtually on this 2nd day of July, 2025.
.......................
L. M. NJUGUNA
JUDGE
In the presence of:-
Miss Mwila appearing with Mr. Mwadaru for the DPP/Respondent
Mr. Jeremy Nyaga for the Appellant in Appeal No. E008/2025
Mr. Mutuku appearing with Mr. Kibe for the Applicant/Appellant in E006/2025
Court assistant – Aden