[2024] KEHAT 1486 (KLR)

AKC v AKK (Tribunal Case 041 of 2023) [2024] KEHAT 1486 (KLR) (31 July 2024) (Judgment)

Neutral citation: [2024] KEHAT 1486 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 041 of 2023

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

July 31, 2024

Between

AKC

Claimant

and

AKK

Respondent

Judgment

A. Introduction 1. On 25th September, 2023, the Claimant herein filed his Statement of Claim dated the same day, in which he sought judgment against the Respondent, for;i.A declaration that the Defendant’s behaviour of disclosing his HIV/AIDS status amounts to a violation of his privacy and confidentiality as guaranteed by the HIV & AIDS Prevention and Control Actii.That the Defendant be ordered to pay a sum of Kshs 500,000/= in damages to the Plaintiff, for the harm suffered as a result of the Defendant’s behavioriii.Other damages the court may establishiv.Costs of the suitv.Any other order the tribunal may deem fit to grant in the circumstances.

2. Upon service, the Defendant filed his Memorandum of Appearance together with a Statement of Response all dated 7th November, 2023 denying in toto the claim as brought against him by the Claimant. The Claimant also filed a witness statement from M.K. dated 22nd February, 2024 while the Respondent filed his own witness statement filed on the 20th February, 2024.

3. Having complied with the pre-trial directions, this matter was set down for hearing where parties proceeded and their witnesses were extensively cross-examined on the veracity of their testimonies.

B. Claimant’s Case 4. The Claimant, in support of his claim, reiterated the averments made on his statement of claim. He also called M.K. as his witness in the case.

5. It was the testimony of the Claimant that he lives in Kilifi County where he operates a bodaboda business that earns him his daily livelihood. The Respondent is also a bodaboda operator within Kilifi County. He testified that while in the course of his business as a bodaboda rider, a lady by the name ‘N’ who sells tea to them forgot her handbag at their place of doing business. The Claimant testified that he decided to keep the bag for her as he knew the bag belonged to her. All this time the Respondent was not at the stage.

6. Later, when the lady came for the bag, the Claimant heard the Respondent, who at this time had come back to the stage, telling ‘N’ that;Achunge yule ambaye amemuokotea yeye ni mgonjwa.

7. It is the Claimant’s evidence that upon speaking the above words, the Respondent turned and saw the Claimant, whom he had not seen earlier. The Claimant testified that those words made him want to commit suicide and that he decided to take the Respondent to the village elder. The Claimant testified that the village elder demanded that the Respondent apologize but he refused to do so till to date hence the suit.

8. On his part, M.N. testified that on the material day, he found the parties quarreling and on inquiry, the Claimant told him that the Responded had told a certain lady that the Claimant was HIV positive. In his testimony before us, he stated that he was told that the Respondent had told the lady that;Chungana na huyo kijana ni mgojwa.

9. He further testified that four (4) people heard the Respondent telling the lady those words. On cross examination, the witness stated that when someone is said to be sick, its usually a reference to being HIV positive. On further cross-examination, the witness conceded that the Respondent did not mention HIV. He also denied that he had been paid to testify against the Respondent.

C: Respondents’ Case 10. The Respondent adopted his witness statement filed on the 20th February, 2024 as his evidence in chief. He stated that M.K. had promised to testify in his favour but changed his mind upon being paid by the Claimant and that ‘K’ was not present during the incident and as such asked us to disregard that testimony as it has been procured through fraud and furthermore, a hearsay.

11. He further testified that they have a long-standing family dispute with the Claimant’s family when the Claimant’s cousin took his sister, who by then was a minor, and kept her in their homestead without their family’s knowledge. The Respondent says that they searched for her sister only to find her at the Claimant’s family homestead living with the Claimant’s cousin. He testified that during the confrontation, they had a physical fight with the Claimant and that since then, the Claimant has always held a grudge against him.

12. In response to this claim, the Respondent testified that a lady by the name Naomi, a food vendor, approached him to asked about the whereabouts of a handbag that she had purportedly misplaced in that area. The Respondent testified that he told the lady to ask the other bodaboda operators as he was not around when she allegedly left the handbag in that area. The Respondent confirmed that was the only conversation he had with the lady and as such all the accusations brought against him as to disclosing the Claimants HIV status is alien to him.

13. He testified that he did not stigmatize the Claimant as alleged or in any manner whatsoever and that the claim is based on old grudges and is an attempt to settle old scores. On cross-examination, the Respondent stated that sickness is not only limited to HIV when someone says someone is sick in the community. He also confirmed that he was summoned by the village elders and ordered to apologize to the Claimant but he did not because he had not wronged the Claimant in any way.

D: Issues for Determination 14. After analyzing the pleadings, evidence, testimony of the Claimant together with the written submissions as filed, these are the issues for determination by this Tribunal;i.Whether there was unlawful disclosure of the Claimants’ HIV status to third parties by the Respondent;ii.Whether there was an impact on the Claimants as a result of the actions of the Respondents; andiii.Whether the Claimants are entitled to the reliefs sought.

E: Legal Analysis 15. This Tribunal having listened to the testimony of the Claimant and read the pleadings filed herein, will now proceed to analyze each issue singularly.

(i) Whether there was unlawful disclosure of the Claimants’ HIV status to third parties by the Respondents 16. The Claimant relied on the provisions of Section 22 of the HIV and AIDS Prevention and Control Act (hereinafter ‘HAPCA’). Indubitably, to prove disclosure, one must tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the said on a platform or a forum that could be easily accessed by a third party. For a Claimant to succeed in a claim for disclosure as provided under Section 22 of HAPCA, the Claimant must provide a witness to corroborate the evidence of disclosure in order to discharge that burden in respect of disclosure.

17. In the context, the right to privacy and confidentiality in relation to one’s HIV status is provided under Section 22 of the HIV and AIDS Prevention and Control Act, 2006, which provides as follows;(1)No person shall disclose any information concerning the result of an HIV test or any related assessments to any other person except: -(a)with the written consent of that person;

18. The said Section of HAPCA emphasizes on the right to privacy as regards a person’s HIV status and, prohibits against disclosure of any information concerning one’s HIV status to any other person, except in certain circumstances and particularly if written consent has been granted.

19. The gist of these words as enunciated in our decision in S. M. –vs- E. N. O., HAT No. 18 of 2018 is that a Claimant must call a witness to confirm that, indeed, there was disclosure of the Claimant’s status to third parties, including the witness. This witness is a crucial key to the puzzle and assists the Tribunal in piecing together a Claimant’s averments and painting the picture of the circumstances under which the disclosure occurred. The witness’s account complements and corroborates that of the Claimant.

20. Having said this, the mere fact of calling a witness does not discharge a Claimant’s burden of proving, on a balance of probabilities, that the events that the Claimant avers are likely to have taken place. It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 and 108 of the Evidence Act provide as follows:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

21. We rely on the case of Muriungi Kanoru Jeremiah vs Stephen Ungu M’mwarabua [2015] eKLR where the court held as follows with regard to the burden of proof:“....As I have already stated, in law, the burden of proving the claim was the appellant’s including the allegation that the Respondent did not pay the sum claimed as agreed; i.e. into the account provided.....The trial magistrate was absolutely correct in so holding and did not shift any legal burden to the appellant.....The appellant was obliged in law to prove that allegation; after the legal adage that he who asserts or alleges must prove.... In the circumstances of this case, the Respondent bore no burden of proof whatsoever in relation to the debt claimed. By way of speaking, the shifting of burden of proof would have arisen had the trial court magistrate held that the Respondent bore burden to prove that he deposited the sum of Kshs. 98,200/= the debt being claimed herein.”

22. We also refer to The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a Claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. This may therefore be separate burdens in a case with separate issues.”(16)The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence?”

23. Justice Mativo in Hellen Wangechi vs Carumera Muthini Gathua [2005] eKLR, quoted with approval Lord Brandon in Rheir Shpping Co. SA. v Edmunds [1955] IWLR 948 at 955 as follows:“No Judge likes to decide case on the burden of proof if he can legitimately avoid having to do so. these are cases, however in which owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just cause to take.”Justice Mativo, in the above decision, went on to state as follows:“Whether one likes it or not, the legal burden of proof is consciously, or unconsciously the………..test applied when coming to a decision in any particular case. The fact was succinctly put forth by Rajah JA in Britestone PTE Ltd v Smith & Associates Far East Ltd [2007] 4SLR (R) 855 at 59: ‘The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”

24. Justice Mativo went further to state in Hellen Wangechi (supra) as follows;“It is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. As observed above, the Appellant made allegation in the plaint, hence she was under an obligation to support the allegation. For example, since there was a denial in the defence, it was necessary to adduce evidence to show how the amount of Kshs.316,000/- was arrived at.”

25. Flowing from the above, the principle is that whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of fact which he asserts, must prove that those facts exist. From the Pleadings and testimony of the Claimant, the Claimant alleges that the disclosure was made to ‘N’ and four other friends but did not call the person to whom the disclosure was made directly to, that is ‘N’. M.K. who was called as a witness in this case confirms by his own testimony that he did not hear the Respondent utter the alleged offensive words to ‘N’. In his testimony and witness statement filed before us, ‘K’ states that he found the two gentlemen quarrelling and on asking, the Claimant informed him that the Respondent had told a certain lady who sells food that the Claimant was HIV positive.

26. The summation from the above is that ‘K’ was told by the Claimant of what had happened and therefore he did not hear directly any disclosure if at all by the Respondent. K’s testimony was therefore hearsay evidence. The rule against hearsay is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a stated fact, see the case of Kinyatti Vs Republic [1984] eKLR.

27. It is therefore our finding that the Claimant did not prove his case to the required standard as he did not produce credible witnesses who heard the alleged disclosure. The testimony of M.K. was hearsay evidence which is inadmissible in these proceedings and therefore this claim must fail. In arriving at this decision, this Tribunal has considered the fact that there was no corroborative evidence to support such alleged disclosure. The Claimant ought to have gone the full length in calling witnesses to corroborate his evidence of the disclosure. His own testimony, we find, was not conclusive evidence to warrant us to find that indeed there was a disclosure. We ask why the Claimant did not call the lady named ‘N’, who heard the disclosure to be a witness in these proceedings to testify in his favour?

28. In this instance, the Claimant did not call any witness to assist the Tribunal in piecing the Claimants’ narrative together. Nonetheless, we reiterate that the burden of proof herein lies on the Claimant, who, in this instance, has not discharged it to the required standard. Thus, this limb of the claim fails.

(ii) Whether there was an impact on the Claimants as a result of the actions of the Respondent 29. The Claimant submitted that the Respondent behaviour towards him caused him great emotional pain and mental distress. He did particularize the emotional pain and mental distress.

30. As discussed above, for one to claim that a certain act or omission has had a negative impact on them, one needs to provide the evidence in support of this assertion. It would be fair to assume that it is difficult to provide evidence of the effects of stigma on one’s life, or of emotional and psychological suffering as a result of unlawful disclosure. However, having found that there was no unlawful disclosure of the Claimants’ status, it stands to reason that this limb of their claim, too, must fail.

(iii) Whether the Claimants are entitled to the reliefs sought 31. The first two limbs of the claim having failed, then this limb, too, must fail.

F: Determination 32. Having considered the pleadings, evidence on record and analyzed all the issues, it is the finding of this Tribunal that the Claimant has not proved his claim to the requisite standard and hence, failed to discharge his burden of proof.

33. This cause is, therefore, dismissed. Given the nature of the proceedings herein, we direct that each party shall bear their own costs.Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 31ST DAY OF JULY, 2024. DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2024. HON. CAROLYNE MBOKU - (CHAIRPERSON)DELIVERED VIRTUALLY IN THE PRESENCE OF;HON. B. O. YOGO - (MEMBER)HON. N. W. OSIEMO - (MEMBER)HON. W. G. JAOKO (PROF.) - (MEMBER)HON. J. N. NGOIRI- (MEMBER)HON. S. K. MUSANI - (Member)HON. DR. IRENE N. MUKUI- (MEMBER)No appearance for the ClaimantMr. Muliro for the Respondent, present.Chepngeno Judy, Court Assistant.