[2023] KEHAT 1380 (KLR)

AA v KA & another (Cause 1 of 2022) [2023] KEHAT 1380 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHAT 1380 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 1 of 2022

Carolyne Mboku, Chair, W.G Jaoko, NW Osiemo, B.O Yogo, S. Musani, J.N Ngoiri & IN Mukui, Members

November 3, 2023

Between

AA

Claimant

and

KA

1st Respondent

SKJ

2nd Respondent

Judgment

1. The Claimant instituted this Claim vide a statement of claim dated 30th December 2021 primarily seeking:a.General damagesb.Costs of the suitc.Interest on (a) and (b) above at Court’s ratesd.Any other relief that the Court deems fit.

2. Mr. Elvin Onsongo swore an affidavit of service on 18th February 2023 and avers that service of summons to enter appearance and the statement of claim was effected upon the Respondents on 2nd February 2022. They were also served with several mention and hearing notices as the case progressed, but they did not enter appearance. The case proceeded undefended on 25th August 2023.

The Claimant’s case 3. The Claimant was a minor aged 16 years at the time of the incident. The Respondents are sisters living together in the same house. Their house was next to the Claimant’s house. Their homesteads were separated by a thin fence and a gate.

4. On 9th August 2021, the Claimant a minor aged 16 years while on her way to school closed her gate so as to prevent the Respondent’s chicken from entering into her compound. The 1st Respondent saw the Claimant doing this and shouted at her through the fence to go take her anti-retroviral (ARV) drugs and that she would organize for some boys to defile her. The 2nd Respondent affirmed the 1st Respondent’s assertions by telling the Claimant to take ARV as she was carrying her life in her hands. The Claimant testified that the altercations attracted the attention of other neighbours and passersby. When the Claimant’s mother came back in the evening, the 2 went to confront the Respondents. The Respondent’s retorted that the Claimant’s mother was also carrying her life in her hands and should take ARV.

5. The Claimant’s mother testified as CW2. She informed the Tribunal that on the said date she went back home and found the Claimant crying. She narrated to her what had transpired in the morning. They went to the Respondents’ house to confront them and the Respondents insulted CW-2 that she too was carrying her life in her hands and should take ARV.

6. The Claimant and her witness testified that life has never been the same again as they have been shunned by the community and people do not want to talk to her. They were forced to move houses. To support her case, the Claimant produced undated apology letters that have similar contents written by the Respondents to the Claimant’s counsel which read in part:“.…..I deeply apologize to JR for the incident that occurred. I did not wish to do so. I apologize to the child and her family. I wish for them to forgive me and I will assure to them that this mistake will never repeat itself again..”

7. The Claimant’s Advocate on record sought for time to avail 2 eyewitnesses who were their former neighbours and witnessed the altercations between the Claimant and the Respondents. The case was therefore adjourned to 7th September 2023 but on the said date, counsel for the Claimant sought for more time to enable him to file their statements. The case was further adjourned to 29th September 2023 when counsel for the claimant indicated that the 2 intended witnesses refused to testify for the claimant after receiving threats from the Respondents. He therefore proceeded to close the Claimant’s case and was directed by the Tribunal to file written submissions within 7 days but the same were never filed.

The Respondents’ case 8. The Respondents were served with summons to enter appearance and the statement of claim and were equally informed of the hearing dates as evidenced by the filed affidavit of service sworn by Elvin Onsongo Mokeria on 24th March 2022, 20th June 2023, 23rd June 2023 and 13th July 2023.

9. Other than enter appearance and defend the claim, the Respondents chose to write similar apology letters to the Claimant’s Counsel. Since they did not present themselves to challenge the claim and letters relied upon by the Claimant, the claim is deemed to be admitted as the letters in part read:“.….I apologize to the child and her family. I wish for them to forgive me and I will assure to them that this mistake will never repeat itself again..”

Legal analysis 10. The Claimant prays for damages. For damages to be awarded, the Claimant must show that she suffered damage due to the Respondents’ breach of duty of care owed her. The Claimant is also required to call a witness or produce documentary evidence in support of her case which is anchored under section 22 of the HIV and AIDS Prevention and Control Act.

11. In David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177), where he stated that:[The] Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying, ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.

12. Even though the Claim is undefended, the Claimant ought to show a nexus between the breach and damages suffered as was discussed in the case of KENYA POWER AND LIGHTING COMPANY LTD V NATHAN KARANJA GACHOKA & ANOTHER [2016] eKLR where Justice Mulwa held:I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove his case too upon a balance of probability whether the evidence is challenged or not.”

13. This was further emphasized in the case of MKK v CWN [2016] eKLR where the High court set the threshold in establishing psychological suffering as follows:“The plaintiff must prove, and the court or tribunal must be satisfied, that the injuries were actually suffered and were proximately caused by the defendants."

14. To this end, the Claimant testified that the 1st Respondent told her to go take her ARV while the 2nd Respondent told her that she has her life in her hands. Though these words were spoken in the presence of several neighbours and passersby, none appeared before this Tribunal to give evidence on the same despite the Tribunal granting the Claimant several adjournments to call an eyewitness.

15. The evidence of CW2, does not hold much water as she was not present when the altercations between the Claimant and the Respondents happened in the morning. The Claimant and CW2 testified that when CW-2 came from work in the evening and was informed of the incident, they went to confront the Respondents regarding the utterances made to the Claimant that morning and the Respondents defiantly responded by stating that CW2 holds her life in her hands and should also take ARV.

16. In as much as the words spoken to the Claimant in the morning are similar to the words spoken to CW-2 in the evening, this Tribunal finds that these were 2 different incidences and as such, CW-2 does not qualify as an eyewitness. However, it raises a probability that indeed those similar words were uttered to the Claimant previously.

17. The Claimant has produced in evidence 2 letters separately written and signed by the Respondents herein. The letters have been addressed to the Claimant’s Counsel on record regarding this matter. Their production was not opposed. They incriminate the Respondents as they admit to the incident and seek for forgiveness thereby admitting the claim. The Respondents owed a duty to the Claimant to not disclose her HIV Status to third parties without her written consent as provided for under Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act which provides:“No person shall disclose any information concerning the result of a HIV test or any related assessments to any other person except with the written consent of that person”

18. We find that the utterances of the Respondents to the Claimant that she should take her ARV and that she was carrying her life in her hands tantamount to unlawful disclosure of the Claimant’s perceived HIV status to third parties.

19. The Claimant testified that the Respondents’ utterances psychologically affected her as she was afraid that the Respondents would actually carry out the threat and send people to defile her. Further, her life has never been the same again as she has been shunned by the community and people do not want to talk to her thus forcing her and her family to move houses.

20. This Tribunal finds that the said suffering was proximately caused by the Respondents’ disclosure of the Claimant’s alleged HIV status. We take judicial notice of the fact that that the Claimant was a teenager at the time of the incident and that teenagers at that age are discovering themselves and are very secretive, self-conscience, emotional and easily triggered. This Claimant must have undergone some psychological trauma for them to move houses.

21. This Tribunal finds that the Claimant has proved her case against the Respondents and determines the Claim in the following terms:1. Damages in favour of the Claimant against the Respondents for unlawful disclosure of the Claimant’s HIV status and psychological trauma for a sum of Kenya Shillings Four Hundred Thousand (Kes. 400,000/=)2. Costs of the suit.

Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF NOVEMBER 2023DELIVERED AT NAIROBI THIS 3RDDAY OF NOVEMBER 2023HON. CAROLYNE MBOKU (CHAIRPERSON) …………………………………………HON. WALTER G. JAOKO (PROF.) (MEMBER) ………………………………………HON. NELSON W. OSIEMO (MEMBER) …………………………………………….HON. BRIAN O. YOGO (MEMBER) ………………………………………………….HON. SOLOMON K. MUSANI (DR.) (MEMBER) ………………………………….HON. JANE N. NGOIRI (MEMBER) …………………………………………….…HON. IRENE N. MUKUI (DR) (MEMBER) …………………………………………….…Delivered virtually in the presence of:…………………………………………. Advocate for the Claimant.…………………………….…………. for the Respondent………………………………………..Court Assistant