[2024] KEHAT 599 (KLR)

AAS v KAK (Cause 20 of 2023) [2024] KEHAT 599 (KLR) (17 May 2024) (Judgment)

Neutral citation: [2024] KEHAT 599 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 20 of 2023

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

May 17, 2024

Between

AAS

Claimant

and

KAK

Respondent

Judgment

1. The good neighbour principle was established in the landmark case of Donoghue V Stevenson [1932] AC 562. It states that a person owes a duty of care to those closely and directly affected by their actions and calls for good relations between neighbors and encourages them not to harm each other through their actions and omissions.

The Claimant’s case. 2. This was a Complaint filed by the Claimant vide a statement of Claim dated 11th September 2023. The Claimant and the Respondent are neighbours. The Respondent dug a pit latrine next to the Claimant’s window which led to dust settling in the Claimant’s house rendering it unhabitable. Requests to change the location of the pit latrine from the Claimant were ignored.

3. Sometime in May 2023, the Claimant was hosting a self-help women’s group in her house. Dust from the digging of the pit latrine entered the house unsettling the meeting. The Claimant stepped out to ask the Respondent to stop digging but he retorted that the Claimant should not complain about the dust as she was going to eventually die of HIV.

4. Consequently, the Claimant has accused the Respondent of disclosing her HIV status to third parties present in her house without her consent and exposing her to an environment that enables hazardous diseases.

5. The Claimant testified that the above captioned statement alludes to the fact that she has HIV and as a result of the comment, she has faced stigma, discrimination, and psychological torture. She has also been exposed to an environment that enables hazardous diseases like malaria as the pit has become a breeding ground for mosquitoes which is not good for her low immunity.The Respondent’s case

6. The Respondent was served with summons to enter appearance and the statement of Claim through the area chief on 18th September 2023 as evidenced by the filed affidavit of service sworn by Ian Nyboma on 13th October 2023. The Respondent failed to enter appearance and defend the Claim. The Claim is therefore unopposed and deemed admitted by the Respondent in line with provisions of Order 2 rule 11 of the Civil Procedure Rules which provides:Subject to sub rule (4), any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposing party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial of it.Sub rule (4) thereof provides:Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be deemed to have been traversed unless specifically admitted.

7. Even though the Claim is unopposed and deemed admitted by the Respondent, the Claimant has pleaded damages for stigma and psychological trauma and as such, the Claim has to go to trial and the Claimant is expected to prove the allegations on a balance of probabilities. In the case of Kenya Power And Lighting Company Ltd V Nathan Karanja Gachoka & Another [2016] eKLR, 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”

Issues for Determination 8. The Tribunal having considered the pleadings filed, the evidence adduced by the parties and the witnesses, considers the following as the issues to be determined:-1. Whether there was unlawful disclosure of the Claimant’s HIV status to third parties by the Respondent?2. Whether the Claimant suffered stigmatization and/or discrimination as a result of the Respondent’s statements?3. Whether the Claimant is entitled to the reliefs sought?Whether there was unlawful disclosure of the Claimants’ HIV status to third parties by the Respondent?

9. A person’s HIV status is confidential and should not be revealed to third parties without their consent as provided for under Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act reads:“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”

10. This Tribunal has previously held in SM v ENO[2018]eKLR that for one to prove disclosure, he/she must show that the disclosure was made to a third party without the Claimant’s consent and tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the said statement on a platform or a forum that could be easily accessed by a third party.

11. The Claimant’s testimony was corroborated by her husband CW-2 and an eyewitness CW-3. CW-2 is the Claimant’s husband. He adopted his witness statement dated 20th October 2023 and testified that when the incident occurred he was in the bedroom while his wife was hosting a women’s self help group in the siting room. He heard his wife requesting the Respondent to stop digging the pit latrine as the dust was disturbing her guests. The Respondent informed the Claimant that she was positive and would die of HIV anyway!

12. CW-3 was an eye witness who was present in the Claimant’s house with other women when the incident happened. She adopted her Witness Statement dated 12th September 2023 and testified that she heard the Respondent telling the Claimant that she should not complain of dust as she has HIV and would die anyway.

13. From the evidence on record, it is clear that the Respondent while addressing the Claimant alluded to her HIV status and the said statement was heard by the people present in the Claimant’s house. In MM v MNM & another [2020] eKLR, this Tribunal held,According to Section 22(1) of HIV and AIDS Prevention and Control Act, disclosure would crystallize if the revelation is made to any other person without the consent of the concerned individual. In our considered view, any other person under Section 22 of the HAPCAdoes not include the person whose status is said to have been disclosed.

14. Seeing that the Statement though addressed to the Claimant was heard by the people present in the Claimant’s house as the window was open and the Respondent and Claimant share a boundary, this Tribunal finds that the Respondent disclosed the Claimant’s HIV status to third parties without her written consent. A person’s HIV test results or related assessment is private and should be guarded as so. The Respondent had no right to talk about or disclose this information without the authority of the Claimant. Failure to respect this privacy is a violation of the person’s right to privacy as provided for under section 22 of the HIV and AIDS Prevention and Control Act.Whether the Claimant suffered stigmatization and/or discrimination as a result of the Respondent’s statements?

15. The Claimant testified that that she has suffered great emotional pain and distress and as a result of the disclosure of her HIV status, everyone in the manyatta knows of her status since her house was full of women who had attended the self-help group meeting. CW-2 and CW-3 confirmed that the Claimant cried deeply after her status was disclosed and she no longer walks joyfully and freely in the village.

16. Despite scientific advancement in the prevention, care and treatment of HIV and AIDS, people living with HIV still experience stigma and discrimination. This causes them to jealously guard the privacy relating to their HIV status. Disclosing one’s perceived status without their consent tantamount to violation of one’s right to privacy. The resultant effect is more often than not stigmatization and discrimination of the person in social spaces which may result into emotional and psychological trauma. In MKK v CWN [2016] eKLR 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.”

17. This Tribunal has previously defined HIV stigma as referring to irrational or negative attitudes, behavior and judgment towards people living with or at risk of HIV. Taking into consideration the testimony of the Claimant and her witnesses, the evidence tendered in support of her claim, we find that the Claimant has failed to lead evidence to proove stigmatization or lead evidence to infer psychological torture and as such, this claim fails.Whether the Claimant is entitled to the reliefs sought?

18. The Claimant sought among other reliefsa.A permanent injunction restraining the Respondent, his agents, family members or guests from using the pit latrine constructed next to the Claimant’s house.b.A permanent injunction to issue through the area chief compelling the Respondent to fill up the pit and bring down the structure of the pit latrine.c.A permanent injunction preventing the Respondent from installing any other latrine or structure of similar purpose within 100 meters of the claimant’s house.d.A permanent injunction preventing the Respondent from sharing, discussing, announcing, commenting on, or disclosing the HIV status of the Claimant.e.A declaration that the Respondent’s actions constituted offences under the HIV and AIDS Prevention and Control Act.f.General damages in compensation for breach of the Claimant’s privacyg.General damages for causing the Claimant immense emotional distress and psychological anguishh.Exemplary damages for harassing, stigmatizing and degrading the claimant.i.Costs of the suitj.Interests.We shall address the prayers in clusters and determine together:a.Prayer a, b and c on injunctions.b.Prayer d to j.

Prayer a, b and c on injunctions. 19. The objectives of the HIV and AIDS Tribunal are set out under section 3 of the HIV and AIDS Prevention and Control Act while the powers of the Tribunal are spelt out under section 27 of the Act and include the power to make such other orders as may be appropriate in the circumstances.

20. The genesis of this Claim is the fact that the Respondent dug a pit latrine near the Claimant’s window. According to the Claimant’s testimony, the pit latrine was an inconvenience to her and her family as the dust entered the house and made it inhabitable. She was also afraid that the pit latrine posed a danger to her health as it became the breeding place for mosquitoes which would lead to her contracting malaria.

21. The Claimant testified that the open pit is a hazard to her health. This notwithstanding, there is also evidence that HIV infection can increase the risk and severity of infections.

22. The conditions for grant of injunctions were set out in Giella v Cassman Brown & Co., Ltd. [1973] EA. 358 where it was held:-a.“First, an applicant must show a prima facie case with a probability of success.b.Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages.c.Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience

23. In view of the above, this Tribunal in exercise of it’s mandate to promote public awareness about the causes, modes of transmission, consequences and means of prevention and control of HIV and AIDS, finds that the open pit dug outside the claimant’s window is a hazard to her health. The Claimant has established a prima facie case with a probability of success. Malaria poses a danger to persons living with HIV and AIDS due to increased risk and severity of the disease resulting from their lowered immunity. This cannot be compensated by way of damages. We therefore allow prayer a, b and c as sought.

Prayer d to j. 24. Having considered the pleadings, evidence on record and analyzed all the issues, we have found that the unwarranted disclosure of the Claimant’s HIV status violated the provisions of Section 22 of the HIV and AIDS Prevention and Control Act and the Claim is determined in the following terms:1. A declaration be and is hereby issued that the disclosure of the Claimant’s HIV status by the Respondent was wrongful and unlawful and amounts to violation of provisions of Section 22 of the HIV and AIDS Prevention Control Act;2. The Respondent be and is hereby restrained from sharing, discussing, announcing, commenting on, or disclosing the HIV status of the Claimant.3. Damages in favour of the Claimant against the Respondent for unlawful disclosure of the Claimant’s HIV status for a sum of Kenya Shillings Five Hundred Thousand (Kes. 500,000/=)4. Costs and interests at prevailing court rates

25. In conclusion, this Claim is determined as follows:1. A permanent injunction be and is hereby granted restraining the Respondent, his agents, family members or guests from using the pit latrine constructed next to the Claimant’s house.2. The area chief is hereby directed to compel the Respondent to fill up the pit and bring down the structure of the pit latrine.3. A permanent injunction is hereby issued against the Respondent from installing any other latrine or structure of similar purpose within 100 meters of the Claimant’s house.4. A declaration be and is hereby issued that the disclosure of the Claimant’s HIV status by the Respondent was wrongful and unlawful and amounts to violation of provisions of Section 22 of the HIV and AIDS Prevention Control Act;5. The Respondent be and is hereby restrained from sharing, discussing, announcing, commenting on, or disclosing the HIV status of the Claimant.6. Damages in favour of the Claimant against the Respondent for unlawful disclosure of the Claimant’s HIV status for a sum of Kenya Shillings Five Hundred Thousand (Kes. 500,000/=)7. Costs and interests at prevailing court rates

Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MAY 2024In the presence of:Hon. CAROLYNE MBOKU (CHAIRPERSON) ……………………………………………….Hon. Prof. WALTER G. JAOKO (Prof.) (MEMBER) ………………………………………Hon. NELSON W. OSIEMO (MEMBER) …………………………………………………..Hon. BRIAN O. YOGO (MEMBER) ………………………………………………………Hon. Dr. SOLOMON K. MUSANI (MEMBER) ……………………………………Hon. JANE N. NGOIRI (MEMBER) ……………………………………………………...Hon. DR. IRENE MUKUI (MEMBER) …………………………………………………….…………………………………………………………. Advocate for the Claimant.………………………………………………………………………….Court Assistant.