High Court at Nairobi (Milimani Law Courts)
Okiya Omtatah Okoiti, Muslimfor Human Rights (MUHURI) & George Bush v Cabinet Secretary, Ministry of Health, Attorney General & Inspector General of Police; Kenya National Commission on Human Rights (Interested Party)
Okiya Omtatah Okoiti & 2 others v Cabinet Secretary, Ministry of Health & 2 others; Kenya National Commission on Human Rights (Interested Party)  eKLR
Quarantining members of the public without an order of a magistrate and forcing them to pay for their upkeep is contrary to section 27 of the Public Health Act on the Isolation of persons who have been exposed to infection
Okiya Omtatah Okoiti & 2 others v Cabinet Secretary, Ministry of Health & 2 others; Kenya National Commission on Human Rights (Interested Party)  eKLR
Petition 140, 28 & 128 of 2020(Consolidated)
High Court at Nairobi
JA Makau, J
December 3, 2020
Constitutional Law - fundamental rights and freedoms – right to health – where the Cabinet Secretary for the Ministry of Health issued a directive that required persons suspected to have contracted covid-19 to go into compulsory quarantine for public health protection to pay for their upkeep – whether quarantining members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep declared was unconstitutional - Constitution of Kenya, 2010, articles 2(6) and 43; Public Health Act, Cap 242, section 27; ; Health Act (No. 21 of 2017), sections 5(1) and (2); International Covenant on Economic, Social and Cultural Rights, article 12(1).
Civil Practice and Procedure – pleadings – petitions – documents accompanying petitions – supporting affidavits vis a vis verifying affidavits -requirement that a petition be filed together with supporting affidavit - what was the effect of failure to file a petition together with a supporting affidavit where a party wished to rely on a document in the petition - whether verifying affidavits accompanying petitions had evidentiary value – Constitution of Kenya, 2010, article 1592)(d); Civil Procedure Rules, 2010, Order 4 rule 1.
Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms – limitation to the right to access of health care services – requirement that a limitation to a right in the Bill of Rights had to be justifiable and reasonable - whether limitation of use of Government quarantine facilities to more deserving cases as opposed to persons breaching measures to contain the spread of the covid-19 pandemic was reasonable – Constitution of Kenya, 2010, articles 2(6), 24, 43 and Sixth Schedule section 7; Public Health Act, Cap 242, section 27; Health Act (No. 21 of 2017), sections 5(1) and (2).
Civil Practice and Procedure – pleadings – pleadings in a claim for special damages - what was the effect of failure to plead a claim for specific damages in a claim for refund.
Words and Phrases - sub-judice – definition of sib-judice - before the court or judge for determination - Black’s Law Dictionary 10th Edition.
The petitioners aggrieved that contrary to the express provisions of section 27 of the Public Health Act (PHA) the Cabinet Secretary, Ministry of Health (CS) forced persons required to go into compulsory quarantine for public health protection to pay for their upkeep yet the law required the State to foot their bills, filed the instant consolidated petitions. The 1st petitioner also contended that the CS issued Legal notice No. 46 of April 3, 2020, and Legal Notices Nos. 50, 51, 52, 53, and 54 of April 6, 2020 without both public participation and parliamentary approval being in violation of the Constitution of Kenya, 2010 (Constitution) and the Statutory Instruments Act, 2013.
The 3rd petitioner contended that the directive given by the CS had declined to acknowledge the sanctity of life and denying the poor Kenyans the right to medical services. Furthermore, he contended that quarantine was not given the sensitive attention it deserved but instead had been made punitive even against the poor. As such, he averred that the directive was presumptive, unenforceable as it undermined express provisions of the Constitution and thus had to be vacated.
The petitioners sought among others orders that; the decision to quarantine members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA; and the Government should refund in full the money each and every person who it quarantined was forced to pay for their upkeep.
Whether quarantining members of the public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was unconstitutional.
What was the effect of failure to file a petition together with a supporting affidavit where a party wished to rely on a document in the petition?
Whether verifying affidavits accompanying petitions had evidentiary value.
Whether limitation of use of Government quarantine facilities to more deserving cases as opposed to persons breaching measures to contain the spread of the covid-19 pandemic was reasonable.
What was the effect of failure to plead a claim for specific damages in a claim for refund?
Relevant provisions of the law
Constitution of Kenya, 2010
(5) No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(d) justice shall be administered without undue regard to procedural technicalities;
Civil Procedure Act
No Court shall proceed with the trial of any suit or proceeding on in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such or proceedings is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.
Public Health Act
Where, in the opinion of the medical officer of health, any person has recently been exposed to the infection, and may be in the incubation stage, of any notifiable infectious disease and is not accommodated in such manner as adequately to guard against the spread of the disease, such person may, on a certificate signed by the medical officer of health, be removed, by order of a Magistrate and at the cost of the local authority of the district where such person is found, to a place of isolation and there detained until, in the opinion of the medical officer of health, he is free from infection or able to be discharged without danger to the public health, or until the Magistrate cancels the order.
A party filing a petition was obligated to file the petition together with an affidavit if he wished to rely on any document, which should be annexed to the supporting affidavit, which document should be served upon the respondent with the petition. Therefore, a petition without supporting affidavit with annextures to the affidavit contained mere allegations without affidavit evidence intended to accompany the petition to support allegations in the petition and that meant the petition was incomplete and incompetent.
The verifying affidavit annexed to the 2nd petitioners’ petition did not meet the mandatory requirements as set out in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), as there was no single annexure attached to the verifying affidavit. The documents filed by the 3rd respondent were not accompanied by any supporting affidavit and as such they did not qualify to be annexures nor were they commissioned by the commissioner of oaths as exhibits to any affidavits.
Under Order 4 rule 1 of the Civil Procedure Rules where verifying affidavit were intended to accompany plaints in verification of the correctness of the averments contained in the plaint were required to be properly presented before the court. The verifying affidavit filed by the 2nd petitioner was misplaced and of no legal effect whatsoever. The verifying affidavit and documents attached to the 3rd petitioner’s petition had no evidentiary value on the petitions. The requirement that a petition be accompanied by a supporting affidavit was not a procedural technicality as affidavit contained the evidence a party wished to rely on in support of his case.
Article 159(2)(d) of the Constitution could not come to the 2nd and 3rd petitioners’ aid as the requirement that a petition be accompanied by supporting affidavit was not a procedural technicality as affidavit contained the evidence, a party wished to rely on in support of the case. It was an important part of pleading that guided the parties to a matter. In absence of such vital evidence, thus affidavit evidence, the 2nd and 3rd petitioner’s petitions fatally defective for lack of affidavit evidence in their support.
The principle of sub judice was defined in section 6 of the Civil Procedure Act. Considering the pleadings in Petition No. 132 of 2020, Law Society of Kenya v CS of Health and others and Petition No. 140 of 2020 (the first petition) , the constitutionality or otherwise of Legal Notices Nos. 50 to 54 were an issue in Petition No. 132 of 2020. The court pronounced itself when it delved its judgment in Petition No. 132 of 2020 on June 25, 2020, on the same issues. To the extent that the petitions sought to challenge the same issues as regards constitutionality or otherwise of Public Health (COVID-19) Restriction of Movement of Person and Related Measures) Rules, 2020, were res judicata.
It would indeed be a waste of judicial time to rehash the arguments in the instant petition where the High Court had already considered and pronounced itself on the very same issues most eloquently as it did in Petition No. 132 of 2020. Under the principle of res judicata, the court was barred from entertaining a matter by the same parties or those acting on their behalf, over the same issue or subject matter where the issue had been conclusively determined by a court of competent jurisdiction. Section 7 of the Civil Procedure Act was clear on res judicata and acted as a bar to such future proceedings as a way of bringing litigation to an end.
Article 94(5) of the Constitution provided that the CS could make provisions having the force of law under authority conferred by legislation as he did. The provisions of the Statutory Instruments Act that allowed for implementation of statutory instruments were merely an expression of the legal principle of presumption of legality of legal instruments and Government action.
The issues raised in the first petition were sub judice, pending determination in Petition 132 of 2020. The petition had already been determined. The instant consolidated petitions were res judicata as regards all similar issues raised and determined in Petition No. 132 of 2020.
Parties were always bound by their pleadings and as the issue of as to whether a declaration of a state of emergency was necessary and a condition precedent to the enactment and enforcement of the emergency policies and legislation did not form part of the pleadings. That issue was misplaced and the court declined the invite to deal with it.
The 1st respondent acted properly and put in place policy measures as envisaged under the provisions of both the Health Act and the Public Health Act. The use of quarantine was internationally accepted as a means of containing pandemics like covid-19. The 2nd respondent further made provisions for protocols that specified how quarantine sites were to be administered.
The decision to limit the use of Government quarantine facilities which were limited to more deserving cases as opposed to persons flagrantly breaching the measures put in place to contain the spread of pandemic was reasonable; widely accepted and recommended by the World Health Organization (WHO) in containment of the spread of Covid-19.
The right to Health found expression in regional and international law which formed part of the Kenyan law by dint of article 2(6) of the Constitution which decreed that any treaty or convention ratified by Kenya formed part of the law of Kenya under the Constitution. The Fourth Schedule to the Constitution in Part 2 thereof provided in section 2 that county health services, including in particular county health facilities and pharmacies; and promotion of primary health care and functions of country governments.
The Public Health Act (PHA) preceded the Constitution, the provision of section 7 of the Sixth Schedule to the Constitution would apply which provision provided that all law in force immediately before the effective date continued in force and would be construed with alternations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution, therefore local government could be construed as county government.
The issue related to section 27 of the PHA was not one of the issues in previous Petitions No. 132 of 2020 and Petition No. 120 of 2020. Under section 27, a person could be isolated based on opinion of a medical officer accompanied by an order of a magistrate and that the costs associated with the isolation were to be borne by the local authority of the district (state) where the isolated person was found.
Considering section 27 of the PHA; section 5(1) and (2) of Health Act, 2017; article 2(6) of the Constitution; and article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the action of quarantining persons without an order from a magistrate and at their own cost was a violation of section 27 of the PHA, article 43(1)(a) of the Constitution and the relevant regional and international instruments. The local authority where the isolated person was found had the solemn constitutional and statutory duty to provide health care services to the people and that included but was not limited to shouldering the quarantine costs.
The 1st petitioner’s claim for refund was one that had to be specifically pleaded and strictly proved being a claim for special damages. The 1st petitioner had neither pleaded the claim nor particularized the same nor specifically proved the same; such claim had to fail. Further, no such parties had been enjoined in the pleadings as petitioners or interested parties. No evidence had been produced in support of the claim. The claim could not therefore stand. In addition, such a claim was solely against county governments, who had not been made a party to the proceedings. It would be against the principle of natural justice and the Constitution to condemn county governments to refund such sums when they had not been enjoined and without affording them an opportunity to be heard on their defence.
It would be contrary to provisions of the Civil Procedure Act and the rules of natural justice for the court to embark on determination on a non-pleaded subject matter and to what parties had not left to court to determine.
2nd and 3rd petitioners’ petitions dismissed; each party to bear own costs.
The consolidated petitions were res judicata by virtue of Petition Nos 132 of 2020 and 120 of 2020 in most of the issues raised thereto save the issue (d) on whether quarantine for members of public at various facilities without an order of a magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA and whether it contravened the constitutional imperative of the rule of law under article 10 and 47 of the Constitution and (e) on whether the Government should refund the money each person who was quarantined and forced to pay for their upkeep.
A declaration was issued that the decision to quarantine members of the public at various facilities without an order of magistrate and forcing them to pay for their upkeep was contrary to section 27 of the PHA and forcing pay for their upkeep contravened section 27 of the Public Health Act and was thereby unconstitutional.
A declaration was issued that the Government should refund in full the money each and every person who it quarantined and was forced to pay for their upkeep was not particularized, specifically pleaded and strictly proved and the county governments who were required to make payments having not been joined as parties, the claim for refund was not proved and was declined.
Prayers under numbers (c), (d), (e), (f), (g), and (h) were res judicata by virtue of courts’ decisions in Petitions No. 120 of 2020 and Petition No. 132 of 2020 and were accordingly dismissed.