A court on Thursday dismissed a petition for the demolition of a church led by Father John Juma Pesa, who is accused of detaining 23 mentally ill persons there, under poor conditions.
Father Pesa, the founder of Holy Ghost Coptic Church of Kenya, was facing a petition by the Kisumu County Government, which sought to tear down the church.
Winam Court Senior Principal Magistrate Fatuma Rashid threw out the case for lack of merit with no orders regarding the costs.
The magistrate also said the issues raised could be bordering on interpretation the Bill of Rights, such as the right to religion vis a vis the right to health.
Therefore, the magistrate said, the court lacks jurisdiction to entertain such an application.
“In the end, I find the application herein lacks merit for want of procedure. The application is struck out with no orders as to cost," Ms Rashid said.
The ruling was big blow to Governor Anyang’ Nyong’o’s administration. In its application dated January 20 and filed under certificate of urgency, the county department of health accused Father Pesa of contravening the Public Health Act cap 242 and Food, Drugs and Chemical Substance Act cap 254.
It listed the church administration, Father Pesa, the church director and family members of the ‘detainees’, as first, second, third and fourth defendants respectively.
The health department, through Senior Public Health Officer, Mr Wycliffe Owuor, wanted the court to invoke the Public Health Act and issue nine orders, among them the immediate demolition of the dilapidated structures that are posing danger to persons within and outside the church.
It further wanted the court to compel relatives, Father Pesa and the church to immediately release the confined persons to a recognised government health institution.
The 23 - 11 women and 12 men - were from Ukwala, Gem, Luanda, Kilgoris and Kendu Bay.
The county government also sought an order restraining Father Pesa from admitting any new cases and not re-admitting the 23 people under said mental cases after transferring them to the recommended facility for their proper medical management by a qualified health practitioner.
Kisumu laid more than 15 grounds to convince the court that what the church was doing was not only inhumane but illegal.
But the magistrate ruled that the sanitation report which health department pegged its case on was not presented in court procedurally.
The court found that the application was made six days after issuance of the notice and therefore it was irregular to proceed before the expiry of the 14- day notice which had been issued.
“The sanitation report was availed after this matter was filed in court and after respondents had filed their responses. This is an irregularity that is apparent on the face of the record of the proceeding,” said Ms Rashid.
While the county government maintained that the detained persons were of unsound mind and should be transferred to the required health facility, the church claimed they were there for spiritual nourishment.
This, the court said, bordered on interpretation of the Bill of Rights yet the magistrates court is not competent to attend to the application.
“To be able to ventilate a grievance, a prospective litigant has to ensure that he addresses his complaint to a competent court,” said Justice Rashid.
After the ruling, Father Pesa told journalists that he had been vindicated and what was happening was pure witch-hunt.
“These people have always soiled my name, including claiming that I am trafficking human beings, but the courts have spoken and now I am even inviting more people to come to Holy Ghost Coptic Church for spiritual nourishment,” said an elated Father Pesa.
Father Pesa added that the church doesn’t hold any person against the guardians', family members' or relatives' wishes and that they sign forms to allow them to be kept in the church for prayers.
The county department of health had indicated that the individuals were being locked in different rooms, denying them the right to access basic health care and other basic human needs, as well as expression and movement, hence dehumanisation.
It pointed out that some of the structures hosting the ‘patients’ were seriously dilapidated, inhabitable, with dusty floors and odorous and that there were also cracks and leakages.
The church also lacked sanitary facilities, a proper kitchen and no food handlers with valid medical certificates. In addition, the food there was being prepared under unsanitary conditions, contrary to the Food Act.
A Nation exposé last month unearthed disturbing violations of human rights, where innocent people were chained, denied meals and kept in solitary confinement, seeing the sun just once a week.
The authorities also faced challenges in that guardians with their people detained at the facility were not willing to offer consent for their discharge, saying hospitals had failed to heal them - the reason they resorted to spiritual healing.
The long procedure of tracking down victims slowed down the rescue mission, which began last week after authorities got wind of human rights violations happening at the church in the guise of prayers.
