The good news came in October, the month when babies made during the Christmas holiday are born. It is a great Christmas story in a country where, on average, 5,000 babies are born daily, nearly half of them in hospitals.
On October 26, 2012, Justice David Majanja ruled that it is illegal to hold anyone hostage until they pay their bill. It is particularly good tidings for patients in Pumwani Maternity Hospital and Kenyatta National Hospital in Nairobi, where scores of patients have been detained for non-payment of bills.
The practice of holding patients hostage has been so widespread over the years that in August 2009, while speaking at Tenwek Mission Hospital in Bomet, former President Daniel arap Moi appealed to CDF management committees to pay medical bills for patients unable to pay.
Some three years ago, Pumwani was reported to be holding hostage as many as 42 mothers, while Kenyatta was holding as many as 400 patients, including mothers.
Justice Majanja’s ruling has been a long time coming. As long ago as 1838, an English court — we follow English common law — held that the law does not allow anyone to take an illegal form of self-help to recover a debt.
In that case, Sunbolf v Alford, an innkeeper had detained a guest who did not to pay his bill. He assaulted and beat him, stripped off his coat and carried it away and converted it to his own use. The guest sued for “trespass to the person” — assault, battery and false imprisonment.
The innkeeper, however, pleaded his lien — the right to retain possession of a property until a debt is paid. The court, however, held the innkeeper had no right to detain the person of his guest.
“If an innkeeper has a right to detain the person of his guest for the non-payment of his bill, he has a right to detain him until the bill is paid, which may be for life; so that this defence supposes that, by the common law, a man who owes a small debt, for which he could not be imprisoned by legal process, may yet be detained by an innkeeper for life,” the court said. “The proposition is monstrous.”
The court further said if the innkeeper has any right to detain the person, surely he is a judge in his own cause. “But where is the law that says a man shall detain another for his debt without process of law?”
Indeed, that’s exactly the question Kenyans should have been asking all along. There is nothing in our laws that authorises hospitals or other institutions to falsely imprison people for non-payment of bills.
In fact, Article 29 of the Constitution provides that every person has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause.
International law also forbids such imprisonment. The International Covenant on Civil and Political Rights, which Kenya acceded to on May 1, 1972, forbids detention of anyone for non-payment of a debt.
According to Article 9 of the ICCPR, everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest or detention, while Article 11 states that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
Justice Majanja has, hopefully, put to an end to the impunity that has so far been enjoyed by hospitals and hotels across the country. He made his ruling in the case of Sonia Kwamboka Rasugu v Sandalwood Hotel & Resort Limited, in which he stated it is illegal for an establishment hold a customer hostage for the non-payment of a bill.
He said Ms Rasugu, whose work was to train the youth on integrity, was unlawfully detained for four days by Paradise Beach Hotel in Kikambala, Mombasa, because of an unpaid bill.
“This is a case of false imprisonment. She was held without her consent and without authority of the law,” he said. He awarded her Sh800,000 as damages for the violation of her rights and the embarrassment and humiliation she suffered.