Authored By:Gregory Bosire
Jomo Kenyatta University Of Agriculture and technology
Abstract
The issue of brain death has been one of the most debated medico-legal issues in Kenya with no clear definition of death in statutory law except through cardiopulmonary cessation. This article discusses the legal grey of brain-death cases, exploring the recent case of Bonface Kariuki Mwangi, a young Kenyan man who was shot at close range during anti-government protests and declared brain dead at Kenyatta National Hospital, as an example of how medical practice can outrun the law. The article asserts that a lack of a direct statutory standard undermines organ-donation practices and complicates the end-of-life decision-making process besides exposing the healthcare professionals to greater liability. Drawing lessons from comparative jurisdictions like the United States and insights from other African scholarly work, it concludes that Kenya is in urgent need of a consistent legal structure that would bring medical ethics, constitutional rights and policy considerations into alignment in the determination of brain-death.
Introduction
In June 2025, Kenyans were confronted with a shocking and emotional headline that spread all over the nation like a wildfire that a police officer allegedly shot Bonface Kariuki Mwangi, a young citizen who was selling masks during protests, in close range. He was taken to the Kenyatta national hospital where he was declared brain dead by doctors. This announcement was received with shock, confusion, and anger by people in society as well as family members of Mr. Mwangi. They were asking questions as to the accuracy of the diagnosis and the lack of transparency in the medical process that followed. The revelation of the story on social media and mainstream news outlets uncovered the underlying doubts regarding the understanding and definition of the concept of “brain-dead” as well as its management in Kenya. This case highlighted a core issue in the legal and medical landscape of Kenya as lack of a clear statutory definition of “brain dead”. Consequently, families find themselves struggling to understand the definition and connotation of brain-death, physicians act in legal gray waters, and courts have no jurisprudent authority to guide them in resolving matters likely to be created around the withdrawal of life support or consent in organ donation for patients declared brain dead because other organs are operating.
This is not merely a theoretical issue. It implicates constitutional rights, particularly, the right to life, contained in Article 26 of the Constitution, the right to dignity, contained in Article 28 of the Constitution, and the right to the highest attainable standards of health. These constitutional rights interact with the realities of medicine in the most unpredictable ways, without legislative guidance. Moreover, the two most applicable acts in this case, the Health Act of 2017 and the Human Tissue Act of Kenya do not specify the legal definition of when death has taken place, which presents an ambiguity to both the practitioners and the families. This article will discuss legal ambiguity of brain death in Kenya, evaluate its effects on organ donation, end-of-life care, and medical liability, and recommending the enactment of a statutory definition of brain death. Through an overview of the existing legal system in Kenya, judicial interpretation and comparative foreign jurisprudence, particularly the United States, Uniform Determination of Death Act, and the much-publicized Jahi McMath case, this article demonstrates why Kenya needs to take decisive action to fill this regulatory gap.
THE LEGAL FRAMEWORK OF BRAIN DEATH IN KENYA
Kenya does not have a statute which explicitly defines brain death or provides neurological parameters of establishing termination of life. The law, instead, implicitly refers to the traditional cardiopulmonary conceptions of death and leaves the decision of brain-death to the professional discretion of the medical professionals under the influence of in-house hospital policies. The most applicable legal tools, including the Constitution of Kenya (2010), the Health Act (2017), and the Human Tissue Act (Cap. 252) each have a provision on patient rights and medical practice but do not specify what death is. The Constitution gives a general guideline on how human rights can be safeguarded. Article 26 also ensures the right to life but does not specify on when life starts and stops. The human dignity clause in article 28 applies in the context of either persistence or withholding of futile medical care. Article 43 that gives right to the highest attainable standard of health, highlights the need to make healthcare decisions that are medically sound and ethically based. None of them, however, explains whether or not neurological criteria can be legally used as a means of death.
The Health Act (2017) was supposed to bring modernization to the healthcare system of Kenya, but it does not mention brain-death determination. It stipulates overall duties of healthcare providers, the necessity of informed consent during medical interventions and defines norms of patient rights. In the case of organ donation, the Act recognizes that we do need a functional system of transplantation but assumes that the question of death has been already resolved- an assumption which is flawed in the case of Kenya. The Human Tissue Act came into existence when organ transplantation was still in its infancy and controls the harvesting and the utilization of human tissue yet it does not make a statement on the legal definition of death. This exclusion has only been getting more problematic as Kenya keeps adding more bed capacity in its leading hospitals to conduct organ transplants.
Practically, hospitals base on internationally verified neurological standards like lack of brainstem reflexes, irreversible coma, loss of spontaneous breathing and of confirmatory nephrology like the apnea test or electroencephalography. However, since these criteria are not statutorily supported, their legal position is not clear. This also builds a situation where physicians are afraid of the negligence accusations or even criminal responsibility when a brain-death diagnosis is challenged. In its turn, medical decisions can be perceived by families as discretionary or subjective, a factor that leads to mistrust and conflict. In summary, the legal system of Kenya offers general guidance rather than specific criteria as medical protocols exist but they are not enshrined in the law to provide certainty for practitioners and the public.
JUDICIAL INTERPRETATION
Kenyan courts are yet to give a final verdict on brain death. However, some of the rulings provide insight into the ways in which courts can handle a case related to medical determination of death, end-of-life decision making, and negligence claims. In the case of Grace Wairimu and 4 others v Registered Trustees of The Matter Hospital, the question of the issue of causation of death from the doctors after they removed the deceased who was brain dead from the ICU. The court showed that it depended on the medical evidence in cases where there is no precision in the statutory law. Though this is not a brain-death case, it shows that Kenyan courts are very lenient when it comes to expert medical evidence. Such dependency is however different when the medical profession in itself is working on ambiguous grounds as is the case with brain-death decisions.
The lack of Kenyan jurisprudence on the concept of brain death implies that courts would be left with the option of borrowing international guideline, persuasive foreign precedent, as well as interpretation of the constitution. Devoid of a statutory guidance, however, the judges can do so inconsistently with other similar cases. The tragedy itself was not the cause of confusion by people, rather it was the absence of authoritative legal advice as it happened in the Mwangi case. A family that is currently facing a brain-death diagnosis is in an obscure legal environment, with the healthcare providers having no judiciary approved standards of operation. Therefore, the silence of the judiciary concerning the issue consolidates the general gap in the law. Kenyan courts will lack the mechanisms to deliver consistent and predictable determinations in cases that involve brain death, until the legislature comes up with a definite statutory definition.
Critical Analysis
Lack of a legal definition of brain death in Kenya creates a number of legal, moral, and practical issues. First, the inability to determine at the end of the life weakens the end-of-life decision-making. A patient who has a neurological brain death can be legally alive without a legal acknowledgment of neurological criteria. This puts uncertainty as to when withdrawal of life support is legal. Families tend to think that, as long as the heart of a person beats, even though the labor may be supported artificially, life still exists and terminating life support can be compared to killing. In this regard, the health professionals would be accused of infringing on the constitutional right to life.
Second, there is a lack of transparency in the law, which hinders the evolution of organ-donation systems. Organ transplantation is a matter of timing especially in cases where the organs are to be obtained out of brain-dead donors with the circulation being maintained at artificial levels. Without the clear legal basis of brain-death determinations, doctors are likely to be fearful of the risk of being sued or facing a backlash on the part of the whole community. Families could reject harvesting of organs on the ground that they do not consider brain death as death. The outcome is a grossly under-exploited system of organ donation in Kenya even as more patients seek to get transplants.
Third, there is a high risk of liability on the part of healthcare practitioners. This position was clearly portrayed in the case of Grace Wairimu and 4 others v Registered Trustees of The Matter Hospital, since neurological criteria are not codified, a family would be able to appeal a diagnosis of brain-death due to negligence, absence of consent, or constitutional rights infringement. Physicians can also be accused of battery when they discontinue life support without any legal consent. The legal ambiguity adds pressure and reluctance among the practitioners and makes it difficult to offer ethical care.
The comparative analysis can point to the scale of the Kenyan legal gap. In the United States, the Uniform Determination of Death Act has given two definitions of death, through the permanent loss of either the circulatory and respiratory functions or the whole brain, including the brainstem. This standardization makes sure that there is uniformity between hospitals and safeguards the doctors that implement neurological standards in good faith. The notorious case of Jahi McMath, a 13-year-old girl who was declared brain dead following surgical complications, was an indicator of the power and weakness of the American system. The UDDA provided the hospital with protection since it was legally clear and even as the family tried to find other ways of understanding death based on religious and cultural understandings. The case has highlighted the significance of open medical procedures and culturally informed communication, which also apply to Kenya.
In Africa, one of the scholarly sources like “Brain Death Determination: The Imperative for Policy and Legal Initiatives in Sub-Saharan Africa” notes that a lot of the African states are encountering the same problem. The paper contains the overwhelming mistrust of the populace, insufficient medical supplies and the absence of legal frameworks that can possibly inform brain-death decisions. Kenya reflects this regional trend though it has the legal and institutional ability to address the issue more decisively.
Recent Reforms
There have been several developments suggesting growing recognition of the need for reform. The Ministry of Health has thought of enhancing the systems of organ-transplantation in Kenya by enacting guidelines drafted to make the process of organ-transplantation in Kenya safer and more transparent. Nevertheless, such attempts fall short of defining death or defining neurological criteria as legally binding criteria. The Mwangi case as discussed by the general society paints a bigger picture of many issues in the society with regard to transparency of medical decision-making particularly in instances where the victims are victims of state violence. Civic-society groups have demanded extensive changes to establish confidence between the people and healthcare organizations. The role of media coverage in increased interest in inadequacy of the existing laws in the promotion of the discussion of the ethical care of the end of the life, and advantages of the modern organ-donation system begins to be taken.Despite these emerging conversations, Kenya is yet to implement binding rules to resolve the legal ambiguity surrounding brain death.
Recommendations
In order to deal with the legal ambiguity and its outcomes, some reforms are necessary. Kenya should start by assuming a statutory definition of the death to cover the cardiopulmonary and the neurological criteria. The introduction of a dual-criteria framework based on the Uniform Determination of Death Act would be clear and consistent throughout the medical institutions in Kenya and would bring Kenyan law into line with international medical practices. The legislature would as well be required to develop laws that lay out the methods of diagnosing brain death. These protocols must include the qualifications of physicians taking part in them, the requirement of neurological tests, use of tests to confirm death, and required documentation to prove that death has taken place. The codification of these standards would afford legal rights protection to the doctors in Kenya and ensure that more people have faith in brain-death diagnosis.
Reform of organ-donation laws is equally urgent. Strengthening the Human Tissue Act and creating a national organ-donor registry would facilitate ethical and transparent donation procedures. The law should ensure that consent processes are clear, culturally sensitive, and informed by best practices from other jurisdictions. Additionally, Kenya should provide legal protections for medical practitioners who follow approved protocols when determining brain death. Safe-harbor provisions would reduce liability concerns and encourage doctors to act confidently in the best interests of patients and potential organ recipients.
Conclusion
The example of Bonface Kariuki Mwangi clearly demonstrates what can go wrong in the consequences of the lack of legalization of brain death in Kenya. Lacking the statutory guidance, doctors are uncertain, families are traumatized and confused, organ-donation initiatives are put in danger, and the risk of liability is high. Analogical experience in the United States and African scholarly work show that explicit legal guidelines to determine brain-death are possible and immediately needed. Kenya is at a cross road. With the growing sophistication of the medical technology and the growing needs of the population, the law has to evolve in order to address the awkward clash of the ethics, medicine, and constitutional rights. The development of organ transplantation and end-of-life care cannot be possible without contributing to the creation of a comprehensive legal framework that determines the brain-death. and secures the human dignity and the people’s confidence in the healthcare system. Any lack of action would continue the clouds of doubt; any radical action would be a major step toward a medical-legal system which is modern, moral, and humane.
