[2023] KEHAT 1378 (KLR)

AM v DP (Cause 15 of 2022) [2023] KEHAT 1378 (KLR) (18 December 2023) (Judgment)

Neutral citation: [2023] KEHAT 1378 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 15 of 2022

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

December 18, 2023

Between

AM

Claimant

and

DP

Respondent

Judgment

1. This was a Complaint filed by the Claimant vide a statement of Claim dated 31st May 2023. The Claimant and the Respondent were sexual partners of the same sex. The Claimant has accused the Respondent of disclosing his HIV status to their mutual friend sometime in June 2021.

2. The Claimant avers that the disclosure was meant to humiliate him and deliberately destroy his life and that of his family and as a result, he was stigmatized, discriminated against and shunned by third parties whom the disclosure was made to. This has led to the deterioration of his health and low self-esteem.

3. The Respondent was served with summons to enter appearance and the statement of claim by electronic means through his last known phone number 07******45 on 14th July 2023 as evidenced by the affidavit of service dated 5th September 2023 sworn by Chris Wafula Advocate but he did not enter appearance. The claim was therefore undefended.

4. The Tribunal gave directions for the Claim to be listed for hearing on 8th November 2023. The Claimant adopted his statement dated 31st May 2023 as evidence in chief and produced bundle of message chats between himself and the Respondent as attached in the Claimant’s list of documents dated 5th October 2023 as Exhibits.

5. The Claimant prays for general damages and injunctions against the Respondent restraining him from claiming, disclosing and spreading falsehoods to the public regarding the Respondent’s HIV status.

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

7. 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.

8. 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.”

9. In this case, The Claimant avers that on or about the month of June 2021, the Respondent disclosed to a mutual friend J that the Claimant was HIV – positive as a result of which the mutual friend and other friends whom the Respondent disclosed his status to shunned the claimant thereby causing him great psychological harm, deterioration of his health and low self-esteem.

10. To support his case, the Claimant relied on messages exchanged between himself and the Respondent. The relevant extracts is quoted and highlighted below:Respondent: Huyo jamaa ni mgonjwa nausikii.Usimwambie kama nimekuambiaClaimant: sawaRespondent: I saw pia yeye anatumia madawaMlifuck aje? CD ama rawClaimant: nani?Respondent: JNaogopa sana I need to go for testing.Kwanza tutaenda kupimwa na wewe town.…..Respondent : … kama ni kushikwa nayo maybe ya K ndio uko nayo.. wa..hadi naogopa ni kama ulinipea…. Endeleeni..ukuwa unaniona nalala kwa kiti weweClaimant : naenda kupimwa. Na nitaenda nione J kwa job leoRespondent: umwambie nini? Kuwa mtu mzima weweClaimant: Nitalibwa. Ni atia kupewa kifo na mtu.

11. Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act 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”

12. For a claim of unlawful disclosure to be allowed, the Claimant must show that the Respondent disclosed the Claimant’s status or any related assessments to other parties without the written consent of the Claimant. The extract highlighted above contradicts the Claim. The Claimant avers that the Respondent unlawfully disclosed the claimant’s HIV Status status to J. a cursory glance at the messages extract shows that the Respondent disclosed the HIV status of J and K to the Claimant.Respondent: I saw pia yeye anatumia madawaMlifuck aje? CD ama rawClaimant: nani?Respondent: JNaogopa sana I need to go for testing.Kwanza tutaenda kupimwa na wewe town.Respondent : … kama ni kushikwa nayo maybe ya K ndio uko nayo.. wa..hadi naogopa ni kama ulinipea

13. After informing the Claimant of J and K’s HIV Status, there is nothing in the messages extract indicating that the Respondent informed J about the Claimant’s status. Instead we see a conversation where the Claimant indicates that he would go for a HIV test then go see J in his office because it is an offence to be killed by someone.Respondent : … kama ni kushikwa nayo maybe ya K ndio uko nayo.. wa..hadi naogopa ni kama ulinipea…. Endeleeni..ukuwa unaniona nalala kwa kiti weweClaimant : naenda kupimwa. Na nitaenda nione J kwa job leoRespondent: umwambie nini? Kuwa mtu mzima weweClaimant: Nitalibwa. Ni atia kupewa kifo na mtu.

14. The Claimant did not testify on how he came to know that the Respondent had disclosed his status to J. Did the Respondent inform him that he had shared the information with J or did J inform the Claimant that the Respondent had disclosed the claimant’s status to him? The Claimant failed to call J who is a very crucial witness in this case to help us fill this jig saw puzzle. It is said that the Respondent informed J that the Claimant was HIV Positive. J ought to have testified so as to confirm this information as the same has not been captured in the message extract provided by the Claimant.

15. This Tribunal has previously held in the case of MM v MNM & another [2020] eKLRAccording to Section 22(1) of HAPCA 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 HAPCA does not include the person whose status is said to have been disclosed.

16. This Tribunal finds that the Claimant has not proved his case on a balance of probabilities to enable the Tribunal find that there was unlawful disclosure of the Claimant’s perceived HIV status to third parties under Section 22 of HIV & AIDS Prevention and Control Act.

17. The Claimant avers that the Respondent’s unlawful disclosure of his HIV status psychologically affected him as he was stigmatized, discriminated against and shunned by third parties whom the disclosure was made to. This has led to the deterioration of his health and low self-esteem. The 2017 UNAIDS report , Confronting Discrimination: Overcoming HIV-related Stigma and Discrimination in Health-care settings and Beyond states:“When people living with, or at risk of, HIV are discriminated against in health-care settings, they go underground. This seriously undermines our ability to reach people with HIV testing, treatment and prevention services. Stigma and discrimination is an affront to human rights and puts the lives of people living with HIV and key populations in danger.”

18. 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.

19. 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."

20. The Claimant did not lead any evidence to prove that he suffered psychologically as a result of the alleged unlawful disclosure of his HIV status. We reiterate, as we have always done before in cases we have adjudicated in the past, that a person’s HIV status whether real or perceived ought not to be disclosed to third parties without prior written consent of that person. This Tribunal will not shy aware from enforcing the objects for which the legislature enacted the law we operate in.

21. 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 standards. This cause is, therefore, dismissed with no orders as to costs.

Orders accordingly.

Dated, signed and delivered at NAIROBI this _ 18th day of December 2023********Delivered virtually in the presence of:Hon. CAROLYNE MBOKU (Chairperson) …………………………………………Hon. PROF. WALTER.G. JAOKO (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 .N. MUKUI (Member) …………………………………………….……………………………………………. Advocate for the Claimant.………………………………………..Court Assistant4