Asero Ochieng v. Attorney General

Petition No. 409 of 2009 (2010)

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Asero Ochieng v. Attorney General

Kenya High Court
Petition No. 409 of 2009 (2010)

RW

Facts

Patricia Asero Ochieng (plaintiff), a citizen of Kenya, contracted the deadly HIV/AIDS virus. Ochieng sued the Kenyan government, through Kenya’s attorney general (defendant), to strike down certain ambiguous provisions of Kenya’s 2008 anticounterfeiting act. The suit charged that those ambiguities threatened to violate Ochieng’s constitutionally protected human rights by cutting off Ochieng’s access to affordable, life-saving, generic anti-HIV/AIDS drugs. The government countered that the act was intended to safeguard human rights by protecting Kenyans from unsafe counterfeit drugs. The government acknowledged that the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), to which Kenya was signatory, clearly distinguished between legal generic drugs and illegal counterfeit patent-protected drugs. The government argued, however, that the act was consistent with the TRIPS Agreement and did not override 2001 legislation that was specifically enacted to fulfill Kenya’s TRIPS Agreement obligations.

Rule of Law

Issue

Holding and Reasoning (Ngugi, J.)

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