Judge faults Kihika over War Memorial Hospital invasion

Nakuru Governor Susan Kihika violated patients' rights at War Memorial Hospital when she oversaw its forcible takeover and eventual closure on January 23, 2024, the High Court has ruled.

Justice Patricia Gichohi found Kihika culpable and guilty of the rights violation for allowing the illegal invasion and closure.

The invasion at around 3 am on the fateful day saw 22 patients forcefully transferred, over 300 staff lose employment, and two patients allegedly die for lack of proper healthcare.

The hospital in Milimani Estate had served since 1921.

It was closed after the county government laid claim to the ownership of the hospital land measuring 25 acres.

The government accused the private management of forging a lease title, thereby extending the land's possession for 50 years, effective April 1, 2021.

However, in her ruling, Justice Gichohi held that Kihika’s administration was wrong to raid the hospital in the wee hours of the night, forcing patients to be transferred.

“The manner in which the county government gained entry into the hospital violated the patients’ rights. The Governor allowed the invasion, and she is culpable for the violation,” ruled Justice Gichohi.

The court noted that Kihika’s government subverted the rule of law and violated human dignity, ruling it unconstitutional and illegal.

Despite ruling that Kihika subverted the law, the court declined to declare the Governor unfit to hold public office.

Justice Gichohi ruled that the court lacked jurisdiction to issue a declaration removing the governor from office.

“The court declines to declare the governor unfit to hold office. There is a due process of removing a Governor from office and the court’s declaration will not follow the same,” ruled the judge.

The judge also declined to issue any other orders regarding ownership of the hospital land, insisting that her court lacked jurisdiction to litigate a land matter.

The ruling followed a petition by the Law Society of Kenya (LSK), filed in 2024, following the closure of the hospital.

Through Lawyer Elizabeth Mukira, LSK sued Governor Kihika, Nakuru County Government, Land Registrar Nakuru, National Lands Commission (NLC) and the Attorney General (AG).

The society sought a declaration that Kihika was unfit to hold public office. Mukira submitted that Kihika had failed the leadership and integrity test by allowing a hospital invasion.

LSK noted that the county government first invaded the hospital on October 27, 2023, and later shut it down on January 23, 2024, discharging patients and over 300 staff.

“Kihika should be declared to be an improper person with regard to her honesty, personal integrity, dignity and respect for the rule of law,” the society deposed.

On October 27, 2023, the county government allegedly hired goons, entered the hospital in the evening without notice and harassed, threatened and chased away patients.

“At least 22 patients were forcefully discharged. The county government caused panic and anxiety,” submitted LSK.

The society stated that 22 patients were forcefully discharged, of which two were C-section mothers fresh from maternity and one C-section mother in her third postoperative day.

LSK also deposed that there was one prematurely delivered infant, one critically ill infant and others in urgent need of medical care.

“Four patients were critically ill and in oxygen support while others were in various wards with various health conditions,” notes LSK.

During the second invasion at 3 am, LSK stated that two patients died, CCTV footage was damaged, staff lost their jobs and properties of unknown value were destroyed.

“The governor disobeyed several court orders directing the reopening of the hospital, subjecting the authority to public scorn and ridicule,” read the petition.

It adds that Kihika usurped NLC’s powers and forcibly acquired public land that should have been under the custody of the national government.

LSK said it was clear that Kihika had failed to protect patients. “The governor caused the deliberate loss of lives, violated the right to privacy, civility and common decency and threatened the right to life of newborns as well as those in ICU,” LSK deposed.

In response, the county government submitted that the court had no jurisdiction to hear the case.