Hospital, kidney donor battle in court over Sh1.5m payment claim

Ayub Kanyi Nyamu has one kidney.

Kanyi says in his court case that the recipient of his other kidney was one Gilbert Matindi Wachira.

The removal and the transplant were done at Mediheal Group of Hospitals on May 21, 2019.

However, the contention that is now before High Court Judge Mugure Thande is whether Kanyi donated his kidney or sold it at Sh1.5 million, the amount of money he is now demanding from Mediheal.

At the same time, Kanyi and the hospital do not agree on the names of the recipient.
There are two sides to the story of what allegedly happened.

Hospital, kidney donor battle in court over Sh1.5m payment claim

On one hand, Kanyi claims that his kidney was for sale and he had agreed with the hospital that he would get Sh1.5 million upon the transplant.

Mediheal admits that it conducted the transplant.

However, it disputes that the kidney went to Matindi. Instead, the medical facility states that the kidney went to Gilbert Kariuki Gicheru, a cousin to Kanyi.
It was a donation, Mediheal says.

“It is true that the interested party (Kanyi) intimated to the respondent (Mediheal) that Gilbert Kariuki Gicheru who was the patient in need of a kidney then, was his cousin and so he wanted to help him. It is also true that after the tests were done, he was successfully determined as a healthy voluntary kidney donor as the health regulations dictate.

It was also true that he was admitted on May 21, 2019, and the surgery to harvest the kidney was successfully done as he fully recovered and was discharged from the hospital on June 7, 2019,” says Mediheal’s Medical Director Maryline Lang’at.

In his case, Kanyi claims that he went to the hospital at Parklands; tests were done, was admitted to the facility’s Eldoret Branch, and was discharged on June 7, 2019.

He alleges that all this was out of a mutual agreement that his removed kidney’s price was Sh1.5 million, which was allegedly to be paid immediately upon transferring it to the recipient.

“The petitioner states that the purchase of Mr Ayub’s kidney was fixed at Sh1.5 million which amount he was promptly to be paid immediately upon transplanting it to the respondent’s patient.

The respondent unlawfully and without any colour of right removed one of the interested party’s kidneys, which was thereafter transplanted on one of the respondent’s patient, one Gilbert Matindi Wachira,” the case filed by activist Francis Owino reads in part.

The battle between Kanyi and Mediheal also involves the Directorate of Criminal Investigations (DCI).

He wants the court to order sleuths to investigate the alleged ‘sale’ deal.
It is illegal to sell or buy organs in Kenya. However, the law allows anyone to freely donate an organ if found compatible and healthy.

In the case, Kanyi wants the court to find that the hospital’s actions are in violation of the law. At the same time, he wants the Kenya Medical Practitioners and Dentists Council (KMPDC) to de-register the hospital.

He is also seeking orders to compel the DCI to conduct investigations and if Mediheal is found culpable, the Director of Public Prosecutions (DPP) to prosecute the hospital.

Kanyi is also seeking the costs of the case and any other order the court deems fit.
On the other side, the hospital wants the case to be dismissed.

It argues that before it conducted the surgery, Kanyi was explained to all that was required for him to know as a donor and went ahead to append his signature as a recognition that he understood the contents of the consent form.

“A consent firm was given to him so as to proceed with the surgery and its contents were explained to him, so the procedure was neither illegal nor unlawful as alleged by the petitioner. Prior to the said surgery, the first interested party executed a well-drafted affidavit after his mental health was examined and reading the contents of the said affidavit sworn on June 29, 2019,” the hospital’s reply continues to read.

While urging the court to dismiss the case, Mediheal states that it was not aware if there was any deal for Kanyi to sell a kidney. At the same time, it asserts that it did not authorise any surgery between Kanyi and Kariuki for Sh1.5 million.

Mediheal also argues that there is no evidence from Kariuki to show that the donor was to be paid for the organ.

The Hospital states that it is aware that Health Act, 2017 provides that a person who charges a fee for a human organ is liable to Sh10 million fine or a jail term not exceeding 10 years, or both. It argues that it has never been involved in any crime, nor is it associated with any practice that is against the law.

“The petitioner’s allegations are malicious and are aimed at defaming the respondent,” argues Lang’at.
In her affidavit, Lang’at reveals that on May 30, 2023, the DCI summoned the hospital and investigated the issue. She states that a month later, the investigative agency dismissed the claims.

“ The respondent is equally amazed at the allegations before this court because the said kidney organ transplant was performed in May 2019 but the first interested party through the petitioner only realised that he ought to have been paid in July 2023,” Lang’at states, adding that the case was meant to extort Mediheal.

Mediheal wants the court to gag Kanyi and Owino from publishing on social media or addressing the media about the case.

The hospital says that there is no evidence or affidavits to prove the allegations lodged by the man.
“ The petitioner’s/ respondent’s allegations are defamatory in nature as the petitioner/ respondent has not proven and is yet to prove his case before this court, and if the same is published and made accessible to the general public, the respondent’s/applicant’s reputation shall needlessly suffer irreparable damage,” says Lang’at. Kanyi’s hospital bill: Sh347, 267.78

A deal Ayub Kanyi allegedly signed bars him from claiming anything for his kidney
“I give any claim I may have to issue, organ or any other body part once removed during the procedure, agree to their use or for educational purpose and or disposal by standard medical procedure.’’

This is part of an agreement that Kanyi allegedly signed before he was taken to Eldoret for the removal of the kidney now at the heart of his case with Mediheal Hospital and Fertility Center.
With a single stroke of a pen, he acknowledged that he also understood the risks accompanying the removal process.

The consent has been produced by Mediheal as one Juliana Gicheru, who indicated, also signed part of its evidence was his cousin on May 30, 2019.

In addition, Mediheal has also produced two affidavits, one alleged to be from Kanyi, and the other one by the recipient.

In the affidavit also before the court, Kanyi is said to have agreed to donate the kidney at no cost to one Kariuki Gicheru.

“Section 80 of the Health Act, No. 2017 has been explained to me and I, therefore, confirm that I understand the nature of the criminal offenses referred to in the section. No payment referred to in the section of the Act has been made to me or will be made to me or any other person.

I am giving the consent and authorization to remove my kidney of my own free will and without undue pressure, inducement, allurement or influence,” the affidavit alleged to have been from him, and signed on June 28, 2019, reads in part.

At the same time, the affidavit indicates that he had allegedly acknowledged that he could withdraw his consent at any time before the operation took place.

Gicheru on the other hand also allegedly also signed an affidavit. He is said to have sworn that he never promised any money to Kanyi for him to surrender his kidney for transplant.

“I have not exercised any form of duress, undue influence, inducement, or allurement to make him come to this decision. Neither have I promised him any form of monetary compensation for him to agree to donate his kidney. The donation is voluntary and done in good faith by the virtue of the relationship between the two of us i.e. cousins relationship,” the affidavit reads.

Gicheru allegedly also acknowledged that his family would foot Kanyi’s medical bill and any other costs, during and after the surgery, until he recuperated.

Kanyi’s hospital bill, according to Mediheal’s documents was Sh 347, 267.78.

“Mr. Ayub Nyamu who is my cousin has undergone the tests and agreed to donate a kidney to save my life. Further, my cousin, Mr. Ayub Nyamu has sworn an affidavit to this effect,” the document continues to read.