Efforts by two HIV-positive inmates to push the government to put in place policies to address medical care gaps in prisons failed to yield results, after two attempts.
The High Court in Nairobi dismissed cases filed by the two inmates at Kamiti Prisons in 2017.
They named the officer in charge of Kamiti Prison, the Commissioner General of Prisons, the Directorate of Prisons Health Services, and the Attorney General as respondents.
They filed the petition on behalf of convicts living with HIV. They claimed the inmates' rights and enjoyments had been violated by the conduct of the respondents.
They wanted the court to declare that HIV-positive prisoners have a right to proper, adequate medical care.
They also sought an order directing the respondents to, within 12 months, develop a policy to comprehensively implement the right to treatment and access to HIV and TB medication for prisoners.
They asked the court to order the prison department to consistently facilitate their visit to Kenyatta National Hospital by providing transport to the hospital for referral requests.
One of the inmates in the case said in June 2004, while confined at Embu Prison, he was tested and found to be HIV positive, counselled, and put on treatment.
In December 2009, he fell ill and was admitted to Embu Level 5 Hospital, where he was diagnosed with haemorrhoids posterior urethral structure and TB.
He was referred to Kenyatta National Hospital (KNH) for specialised treatment and care and immediately transferred to Kamiti Maximum Prison, where he stayed for a week before being taken to KNH despite the urgency.
He said he was admitted to KNH for a month.
He was later discharged but was required to continue attending clinics at KNH every other month.
He said this never materialised due to the failure of the Officer In-charge and the Directorate of Prisons Health Services to act. He was thus moved from line 1 of ARV to line 2.
The second petitioner in the case said he was arrested in 2009, held at Thika remand prison, convicted in 2010, and transferred to Kamiti Maximum Prison.
In June 2011, he fell sick and was taken to KNH, where he was diagnosed with HIV and placed on ARVs which he accessed through the comprehensive care unit at the prison.
He added that in January 2017, he was transferred to Naivasha Maximum Prison but could not access his ARV treatment for one month due to lack of handover notes at the new prison facility.
After two months, he was re-transferred to Kamiti Maximum Prison for a night. The next day he was transferred to Nyeri Maximum Prison, where he was held for three weeks, then re-transferred to Kamiti.
He averred that for the period he was held at Naivasha and Nyeri maximum prisons, he did not access ARV drugs.
He said he was segregated and confined at Kamiti Maximum Prison, from March 2017 to February 2018, for reasons unknown to him and he did not access his ARV treatment.
In February 2018, he developed chest complications but his medical records could not be traced at the facility. He was then referred to KNH for treatment, where he was placed on ARVs, and instructed to continue attending the HIV clinic.
Despite this instruction plus an existing Court Order, the Officer in charge and the Directorate of Prisons Health Services declined to escort him to KNH for his medication.
In response to the suit, Superintendent Japheth Muhadia, who is in charge of documents at Kamiti Maximum Prison, said two inmates after filing this petition, filed another case at the HIV & AIDs Tribunal in January 2019 seeking similar prayers. The suit at the tribunal he said was heard and dismissed.
Muhadia said the two had received regular medical attention whenever there was a need. He added that Kamiti Maximum Prison has a Comprehensive Care Clinic (CCC), which takes care of HIV patients and also offers nutritional services.
He annexed an officers' duty journal showing when the two declined to be taken to the hospital.
Justice Hedwig Ong'udi in a judgment delivered on May 12, 2023, said the evidence provided indicated there are clear policies and rules to address issues concerning prisoners.
"I, therefore, do not see any need of directing for the formation of policies when there are sufficient laws and rules to address any issues (including HIV/Aids, & TB among others) concerning prisoners," read the judgment.
The judge noted that the two would have appealed the judgment of the HIV and Aids tribunal decision dismissing their case.
"They should have appealed against that judgment if dissatisfied, instead of filing a similar petition herein. Once again, the petitioners never responded to this. It was not even submitted by their advocates. This is a clear abuse of the court process," ruled the judge.
The judge said the two failed to prove they deserved the orders they were seeking. Their petition the judge said lacked merit and dismissed it.
