Too frail for jail? Court frees terminally ill elderly prisoner

At 67 years, Reuben Figalo has seen life. At his age, he has walked through the sojourns and struggles of men, including a stint in jail. Owing to ill health, he was behind bars until last week, when Justice Jaqueline Kamau freed him before he completed a 15-year sentence.

His case now sheds light on the plight of elderly prisoners battling chronic illnesses. It also raises questions about whether senior citizens should remain incarcerated, especially when the state cannot provide adequate medical care.

Figalo had been jailed for defilement at Kakamega GK Prison, but Judge Kamau found that keeping him behind bars was inhumane, as the State cannot afford to offer him proper care and treatment for cancer.

“It was the responsibility of the State to extend care to terminally sick inmates and where it had conceded that it could not ensure proper treatment, then the court was enjoined to ensure that the human rights and fundamental freedoms of inmate were not violated, contravened and infringed upon,” said Justice Kamau.

On average, Kenyans pay Sh270 daily to feed a single prisoner. Data from the National Council of Administrative Justice (NCAJ), United Nations (UN) and the Law Society of Kenya (LSK) indicates that the country has at least 61,915 convicted and unconvicted prisoners.

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The NCAJ report states that in 2024, 33,336 men and women served different sentences in jail. Additionally, 26,579 prisoners were either awaiting trial or struggling to raise bail.

Although data does not indicate the number of elderly people behind bars, the report indicates that at least 770 prisoners are over 50.

However, there is no data on how much the government spends to keep a terminally ill or elderly prisoner behind bars.

Dr Gikenyi Magare, a consultant trauma and general surgeon in Nakuru told The Standard that on average, it would cost Kenyans between Sh150,000 to Sh800,000 for a person like Figalo to have a surgery.

Further, he estimated that at least Sh600,000 will be required if he is to undergo radiotherapy and another round of between Sh150,000 to Sh800,000 for chemotherapy sessions depending on which hospital he is to be attended to.

“If surgery is needed, the approximate cost for the surgery is between Sh150,000 to Sh800,000 depending on the hospital. He also needs chemotherapy, the average cost of which is the same. Radiotherapy cost around Sh600,000,” said Magare.

In her judgment, Justice Kamau painted a grim picture of suffering for inmates who are unable to care for themselves. She argued that battling cancer behind bars amounted to a double punishment and that imprisonment should not equate to brutality.

Although Figalo had been convicted of a serious offence, the judge noted that the government had admitted its failure to provide him with the necessary medical care he urgently needed. She also pointed out that leaving his fate in the hands of other prisoners would be an undue burden on them.

Double punishment

“It was clear that the continued incarceration of the petitioner herein would amount to inhuman and degrading treatment, at an unreasonable cost on the facility of the prison which came from tax payers and sap the goodwill and energy of other inmates who were already struggling with their own unique challenges,” she said.

For lawyer Shadrack Wambui, Justice Kamau considered aggravating factors that warranted Filago’s release. According to him, punishing an offender does not necessarily mean one should be behind bars.

“The rationale behind criminal justice system has different school of thoughts. There are other aggravating factors, which ought to be considered. It makes sense to free you instead of burdening others. Punishment is not about jailing; you could be imprisoned but serving a non-custodial sentence. The sentencing guidelines provides for other options of punishment,” he said.

Another lawyer, Evance Ndong argued that imprisonment is a colonial relic. He stated that the court was invoking human dignity as it was unclear that even if he was released, when would he get well to serve the sentence?

He asserted that issue of health and imprisonment is divisive, with one school of thought believing once a person is jailed, then he or she should remain until the end of the term while another felt that is unfair to have a person suffering twice. 

“What Justice Kamau is saying is if the person is terminally ill and cannot access the highest medical treatment, then the only commendable order is for him to be released. There is an uproar about that, but there is a wave of looking at criminal law as restorative justice, not punitive justice. If a person dies in prison, how do you expect them to be punished? We are dealing with human dignity first,” said Ndong. 

According to him, Figalo’s case was exceptional, adding that it could not be used to say that the judiciary had opted to free all terminally ill persons behind bars. 

He, however, pointed out that the current criminal justice system is tempered with mercy, such that jail is the last option on offer. 

“The idea that the judge is fostering is that criminal justice is moving from being punitive but infusing human dignity. If the judge determines that the prison’s authority cannot give you the highest medical care, you should be allowed to go out and seek this right. People might say to let a person be released until he gets well, but health issues are unpredictable. We cannot predict when you will get well. It is a criminal justice system with mercy,” noted Ndong. 

He continued: “Again, there is a false notion that the only way to give victims justice is to jail the accused. There is more to it; sentencing alone is not an end to itself, as the victims need counseling and support. The role of the law cannot be deterrence alone but must be tied with dignity. You cannot be dying and on oxygen and we send you to jail.” 

Grim picture

A 2019 report by the Kenya National Commission on Human Rights (KNHRC) on the state of health care for prisoners in Kenya indicated that the majority of health facilities are level two, or simply dispensaries. 

The State-owned rights agency indicated that some do not have any medical facilities, with some relying on nurses from the counties to do rounds.  It noted that it is a tricky affair to escort prisoners to health facilities outside the prison walls.

“Fifty-seven prisons out of the 73 visited accounting for 78.08 per cent had level two medical facilities, also called dispensaries. These facilities operate between 8am and 5pm, limiting the timing and nature of medical conditions that they are able to address. This, therefore, is still a hindrance to access to medical services after the above stated hours considering that prisons are security installations,” reads the report in part. 

KNHRC said Kwale Prison was the most alarming. According to the human rights agency, the prison has at least 400 prisoners who rely on Msambweni Hospital, which is around 33 kilometers away. 

The situation is exacerbated as prisons do not have trained medical personnel.

On the flip side, the report noted that some of the best practices with regards to access to healthcare by inmates was Naivasha, Kamiti, Shimo la Tewa and Nyeri Maximum prisons. 

“These prisons have level 3 health centres, which allows inmates access to medical services around the clock due to availability of wards for overnight watch,” the report states. 

KNHRC singled out Naivasha, which it stated that it has general wards for handling sick inmates who do not have communicable diseases and eight isolation wards for inmates with communicable diseases. 

Each ward has 10 beds, meaning the facility could comfortably accommodate 20 patients at any one time. 

It noted that there were two inmates, one who was an 82-year-old man who was too weak to take care of himself.  KNHRC said that he had someone assigned to help in out. The second one was a visually impaired inmate who also needed someone to assist him. 

“As at the time of the survey exercise, there were six inmates in the wards and four other inmates who had been tasked with helping the sick ones. They were in charge of preparing their food, cleaning, and moving for those who had difficulties,” the report continued. 

From the data, 93 per cent stated that the quantity of food served is insufficient. Only seven per cent, who were mostly HIV inmates, agreed that they have food that is adequate for health and energy. This is because they had double portions. 

KNHRC was of the view that prisons should offer in patient treatment for prisoners suffering from less serious diseases. The commission also observed that only 63.01 percent of the prisons had ambulances to handle emergencies and referrals. The others relied on the vehicles allocated to the prisons or the counties.

It observed that the Kakamega Prison, where Figalo was held hand an ambulance, although it was serving both women and men prisons.

In the meantime, at least 55 per cent of prison health facilities stated that the drugs were supplied by the Kenya Medical Supplies Authority (Kemsa), while the remaining cited the county governments through the county hospitals as the source of their drugs. Institutions supplied by Kemsa stated that in some instances, there were delays in supplying the drugs due to delayed or accumulated unpaid payments.

In his case, Figalo said that he lacked medical care and proper diet.  In his supporting affidavit, he admitted that he had been charged and convicted for defilement.

He, however, said that he was diagnosed with cancer in 2022. Figalo stated he was suffering and lived an embarrassing life in the presence of other prisoners.

In response, the Director of Public Prosecution (DPP), through counsel Faith Koech, said that he was improperly enjoined in the case. Koech said that DPP was functus officio.

In the case Dr Obonyo Carrey wrote a letter dated November 6, 2024, indicating that Figalo needed surgical intervention.                                                                                

At the same time, Julius Kapsir, the officer in charge of Vihiga Prison, also indicated that Figalo’s health had continued to deteriorate due to a lack of proper diet and medical care.

The elderly convict is not the first one to be released over age. Susan Mueni, 84, was released in 2020 from Embu Women Prison by Justice Janet Mulwa.

Mueni was serving six years in jail for obtaining money by false pretence and making false documents. She was handed one year for each of the six counts on January 12, 2018.

Mueni’s first revision was dismissed on June 18, 2019. She went back to court arguing that she was  of ill health of hypertension and is elderly.

Justice Mulwa said that at the time she was going back to court, she had served two years. “She is 84 years old and as I have stated, cannot hear well unless at a very close range. She is most vulnerable being in a congested prison at the Embu Women Prison, the only prison for Women in the Mt Kenya Region. In my view she has been punished enough for her sins. She is harmless at her age. Her continued stay at the prison will serve no purpose,” said Justice Mulwa.

There is a divergent view on whether prisoners should be released on medical grounds. Some of the persons convicted died behind bars.

Denied bail

Former Nairobi Town Clerk John Gakuo died while serving three years in prison. Owing to his ill health, he initially approached the court seeking to be released on bail. However, Justice John Onyiego declined, saying that he could seek treatment behind bars.

Gakuo was jailed on May 15, 2018, for the multi-million-shilling cemetery land scandal that rocked City Hall between 2008 and 2009.

In the US, Bernard Lawrence Madoff, the mastermind of the USD65 billion ponzi scheme, died behind bars at 82 years.

Closer home, Justices Ngenye Macharia said that illness alone cannot be used as a mitigating factor in a plea for release. She declined John Bishop’s plea to be released on the basis of ill health.

Justice Macharia observed that Bishop had been convicted trafficking in narcotics. She noted in her 2016 judgment that although he had claimed to be having TB, the same had cured a year before she rendered her verdict.

Justice Stephen Riechi, on December 1, 2022 also rejected a prisoner codenamed PMK’s plea to be released on health grounds. PMK, 73, said that he was remorseful.

He argued that HIV/Aids had taken a toll on him owing to the harsh prison environment. He stated that the terminal disease had also come with high blood pressure owing to stress.

Nevertheless, the judge said that he knew and ought to pay for his actions.

“In view of the fact that the appellant knew he was HIV positive and being a senior citizen of 73 years, he bore higher responsibility of ensuring that his action do not endanger another person more so a minor by engaging in acts that could infect the minor aged 15 years with HIV which is terminal illnes; he ought to have been mindful of the consequences of his actions,” said Justice Riechi.