The High Court has thrown out an application by two rights advocacy groups seeking to restrain the Ministry of Health from detaining individuals who are unable to pay the costs of testing, isolation and treatment for Covid-19 incurred in public hospitals.
The Kenya Legal and Ethical Issues Networking on HIV/Aids (Kelin) and the Katiba Institute wanted the order to be directed to Health Cabinet Secretary Mutahi Kagwe and the Kenyatta University Teaching, Referral and Research Hospital (KUTRRH).
The groups moved to court in October last year on behalf of two individuals whose medical bills amounting to Sh108,000 they claim the government failed to settle. They claimed the two individuals were detained at KUTRRH after they were unable to clear the bills.
They are seeking a declaration that detention of the two individuals for failure to clear medical bills was a violation of the Constitution and they ought to be paid damages.
Pending the hearing and determination of the case, the rights groups wanted the court to restrain detention of other individuals.
But Justice Weldon Korir ruled that the issuance of the order as sought was not proportionate to the financial damage that will result if public health facilities are told not to collect isolation and treatment fees from Covid-19 patients.
The judge observed that the rights groups did not give a list of names or even a name of a patient detained by KUTRRH.
"Conservatory orders, in my view, should be issued to take care of an identifiable risk to constitutional rights and fundamental freedoms. The claim that the KUTRRH is detaining those unable to pay bills in respect of isolation and treatment for the Covid-19 disease is, therefore, not backed by sufficient evidence that would spur this court to reach into its quiver and withdraw an arrow to shoot down a violation of rights," said Justice Korir.
However, he noted that that is not to say that the petition does not raise arguable issues.
The groups also wanted the court to allow the identities of the two individuals to remain undisclosed but be code-named as JMK and AJ to avoid stigmatisation.
But the court observed that the government has taken noticeable steps to deal with the stigma surrounding patients who have suffered from the deadly virus.
“In my view, Covid-19 no longer carries the stigma it did when the first infection was reported in Kenya,” the judge said.
He added that Kenyans have learnt to live with it and the government is even encouraging home-based care for asymptomatic patients.
While declining to allow the hiding of the patients’ identities, the judge ruled that it is important to appreciate that even though the two individuals are indeed entitled to protection of privacy, that right is counter-balanced by the respondents’ right as litigants to know the “enemy” they are confronting.
"In other words, the identity of a litigant is very crucial to the other party as it will assist the opposite party to file an adequate defence. There are instances when the identity of the petitioner should indeed be concealed but that should be the exception rather than the norm," he said.
For instance, the law provides for the concealment of the identity of children in conflict with the law.
Justice Korir said the alleged stigma for those infected with Covid-19 or suspected to have been infected with the disease is not a sufficient reason for concealing the identity of the two petitioners.
"Infection with coronavirus disease cannot be equated with infection with HIV/Aids which is mainly contracted through sexual activity hence the stigma surrounding the disease. I, therefore, find and hold that the disclosure of the names of the petitioners is not likely to prejudice them. If anything, the disclosure of the names of the petitioners will assist the respondents to adequately respond to the allegations," said Justice Korir.
Furthermore, he said the petitioners have not revealed any impending dangers associated with revealing their identities or any prejudice that they are likely to face if their names are known to the court and the respondents.