Dispute over blood samples to go to full trial

By Judy Ogutu

A row over blood samples collected from HIV positive children at Nyumbani Children’s Home is to proceed to a full trial.

On Tuesday, Justice Roselyn Nambuye struck out an application that had sought the dismissal of the case, pending at the High Court, Nairobi.

Dr Moses Otsyula sued the University of Oxford, Sarah Rowland-Jones, Rama Chakraborty, Jedediah R Dixon, Alexandria M Cross, Dimtra Bourboulia, Chirs Boshoff, Paul Klenerman, Gareth Rees and Dr Agostino Angelo (deceased).

Justice Nambuye said Angelo, who had wanted the suit thrown out, was dead. Angelo died on November 11, 2006, according to a death certificate filed in court.

"The matter cannot continue when the applicant does not exist. By virtue of this, the application is hereby struck out," she ruled.

He had sought to have the suit dismissed for want of prosecution.

In the suit, Otsyula is demanding for blood samples collected from the HIV positive children

Otsyula, who is a virologist, had in 2004 sued Angelo, University of Oxford and the others claiming they had stolen and wrongfully detained blood samples, research materials and data belonging to him. He moved to court seeking for an injunction compelling Angelo and nine others to return the blood samples to him.

General damages

He is also seeking for general damages for fraud, theft, conversion and wrongful detention of the blood samples, research materials and data.

He claims he had volunteered to help the home build a diagnostic laboratory with the capacity to help in the efficient and consistent diagnosis and monitoring of HIV conditions and immune responses of children at Nyumbani Children’s Home.

He claims prior to this, he had discovered children at the home, some of whom were twins, had different immune responses and that some HIV positive children survived longer than others in similar conditions.

It is upon making the finding that he decided to investigate the reason behind the same with a view to producing a vaccine for the prevention and treatment of HIV/Aids.

He claims he prepared and preserved the blood samples in freezers at a laboratory at the home.

In June 2001, the university, Sarah Rowland-Jones and Rana Chakraborty came to Kenya with the collusion of other defendants and took away and unlawfully exported the samples.