Judge quits War Memorial Hospital case after police disobey court

Nakuru Police Commander Samuel Ndanyi. [Kipsang Joseph, Standard]

A High Court judge has expressed "deep frustration" at the National Police Service for failing to implement orders on reopening and access to the Nakuru War Memorial Hospital.

In a hearing on Thursday, Justice Anthony Ombwayo of the Environment and Lands Court noted that six orders issued by the court have been disobeyed by the local police commander Samuel Ndanyi.

In a virtual hearing attended by the police boss, Justice Ombwayo noted that the orders were issued between October 31, 2023, and February 6, 2024, and have never been enforced.

The latest order was issued on February 5, directing Ndanyi to escort members of staff and management of the hospital to access the facility after it was occupied by armed goons.

Ndanyi failed to enforce the orders and was summoned to appear in court on Thursday. Because of the disobedience of the lawful orders, Ombwayo decided to recuse himself from the case, just eight days after he started handling it.

He further decided to transfer the case to Nairobi for further hearing and determination. "I still maintain that court orders must be obeyed. This case will now be handled in Nairobi," ruled Ombwayo.

He rubbished claims by Ndanyi that the police had been overpowered by goons who took over the hospital on February 1.

Ndanyi told the court that the police could not disperse the goons using teargas or bullets because the hospital is located near State House, a public hospital and a school. "Creating chaos to disperse the crowd would have been catastrophic," he said.

However, Ombwayo ruled that Ndanyi's explanation made no sense. "Police force cannot fail to deal with rowdy crowds," ruled Ombwayo.

He gave Ndanyi two days to comply with the same orders, or otherwise present himself on February 13, before the ELC in Nairobi and explain his failures. Ombwayo took over the case from ELC Judge Millicent Odeny who had also expressed her disappointment after her orders were also disobeyed.

Odeny started handling the case in October last year when the county government forcefully took over the management of the hospital.

She issued an order on October 31, 2023, for the county to vacate the premises, and the same was disobeyed. She issued orders on November 2, 2023, directing Nakuru East Sub County Police Commander Martin Masika to assist the private management in accessing it. The same was disobeyed.

The hospital was reopened 10 days later, but on January 22, the county enforcement team took over the hospital for the second time. Odeny ordered the county enforcement team to leave the hospital on January 23 the same was disobeyed.

On January 25, she ordered Ndanyi to help the private management access it. The same was ignored. She issued another order on January 30, before she summoned Ndanyi to present himself before the court on February 1 and explain why he was unable to implement the orders.

Odeny, however, recused herself from the case saying she was proceeding on leave and referred the matter to Ombwayo who has now withdrawn from the case.

In their argument yesterday, the private management through lawyer Chomba Kamau told the court that they needed police help to access the hospital because goons had raided it.

"The crowd outside the hospital cannot stop the police from implementing a court order. The police cannot tell Nakuru residents that they cannot protect them from goons," submitted Kamau.

Prof Tom Ojienda, who represents the county government, urged the court to spare Ndanyi because he was innocent and had been overpowered by the goons.

He went to the extent of urging the private management to implement the court orders themselves because the police had been overpowered. Ndanyi said he deployed police at the scene and visited it on Wednesday but found a big padlock and could not access it.

"We do not know who is in possession of the hospital at the moment because the gate was locked and I was unable to access it," he said.

He said the rowdy crowd made everything difficult for him to implement the orders but he had police officers stationed at the gate to man it.