Joseph Lomoni Yokongwa is currently serving 30 years imprisonment for the offence of murder.
While in custody, Lomoni realised that he was being denied his right to procreate, which he petitioned for at the High Court at Meru.
His wife Doreen Kawira is now 37 years old, and the couple fear that by 2032, when the man will be released from prison, they won't be able to have children.
So far, the two are blessed with one child but want more.
Appearing before Judge Wamae Cherere, Lomoni sought a declaration that they are entitled to the right housed under Article 43, while he is still in custody.
Article 43 (1) (a) of the Constitution provides that, "Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care".
Further, Article 24(1) provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law.
If it is limited, it is then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
The law outlines that the factors for consideration include the nature of the right or fundamental freedom, the importance and purpose of limitation and, the nature and extent of the limitation.
It should also be considered that the need to ensure that the enjoyment of rights and fundamental freedoms by an individual does not prejudice the rights and fundamental freedoms of others.
Judge Cherere stated that the right to conjugal rights in a marriage is closely interrelated with reproductive health rights as guaranteed under Article 43.
It is also interrelated to the right to find a family and the right to life under Article 26 of the Constitution.
The judge however noted that the Prisons Act did not touch on the issue of the right, adding that the same could not be enjoyed in the current set-up.
"The Prisons Act is silent on the issue of conjugal right, but the right can no doubt only be enjoyed in private setups which lack in prisons," the court document reads.
"In the present prisons' set up, the right to conjugal right cannot be enjoyed without prejudicing the rights and fundamental freedoms of others."
The court pointed out that Lomoni and his wife, have been denied the right to conjugal right by the fact that the husband is serving a lawful sentence.
"The limitation to enjoy conjugal rights is in this case limited by law and is reasonable and justifiable in the circumstances," the court added.
In the judgement dated October 12, Judge Cherera ruled that the petition lacked merit and declined the prayers.
