[2021] KEHAT 674 (KLR)

AMW v LCVT Health (Tribunal Case 16 of 2020) [2021] KEHAT 674 (KLR) (17 December 2021) (Judgment)

Neutral citation: [2021] KEHAT 674 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 16 of 2020

H Namisi, Chair, M. Ng’ania, T Jama, M. Ndonga, Justus T. Somoire, AM Diriye & D Jemator, Members

December 17, 2021

Between

AMW

Claimant

and

Lcvt Health

Respondent

Judgment

A. Introduction 1. By the Statement of Claim dated the 26th of March 2021, the Claimant herein sought reliefs that:a.An order ascertaining that the Claimant did suffer a violation and an infringement of her rights as guaranteed and protected under the HIV and AIDS Prevention and Control Act Cap 246;b.A permanent injunction restraining the respondents, representatives, employees and/or agents from further threats, coercion, intimidation and unauthorized disclosure;c.Payment of Special Damages amounting to Kenya Shillings Fifty Seven Thousand Five Hundred and particularized as:i.Consultation and medical treatment in the amount Kenya Shillings Three Thousand Five Hundred Only;ii.Loss of earnings in the amount of Kenya Shillings Fifty Four Thousand Only.d.Payment of damages (general and punitive) in respect of impairment of dignity, pain and suffering and/ or emotional and psychological suffering as a result of the wrongful disclosure made to her by the Respondent’s employees;e.The Honourable Tribunal do issue such orders and give such directions as it may deem fit to meet the ends of justice; andf.The Respondent to pay costs of this claim in any event.

2. The Claimant avers that on the 27th of October 2020, whilst she was presenting her monthly calendar on the activities she had undertaken in her capacity as a Peer Educator at the Respondent’s offices, three employees of the Respondent known as Meresa, Regina and Diana approached her at the waiting area while she was booking an appointment to see a clinician. They shouted, in the presence of other colleagues and clients, calling her a“defaulter”. She claims that the employees alleged that she had refused to take her antiretroviral drugs (ARVs).

3. The Claimant further avers that the altercation resulted in her public shaming causing her deep humiliation among colleagues who had no prior knowledge of her HIV status, or that she was receiving treatment for the same.

4. The Claimant also avers that the attack by the Respondent’s employees also caused her physical injuries for which she sought medical attention at Waka Medical Clinic in Thika. A complaint was filed at Thika Police Station on the same day following the attack under OB Number 54/27/10/2020.

5. The Claimant claims that the incident directly resulted in the public disclosure of her HIV status as well as an assessment relating to her treatment by the Respondent’s employees without her consent or any reasonable justification. Additionally, following the altercation between herself and the Respondent’s employees with no intervention from the Respondent, it has been impossible for her to face her colleagues at work.

6. The Claimant reiterates that the Respondent’s employees’ actions have caused a violation and infringement of the rights of the Claimant as guaranteed and protected under sections 22 and 23 of the HIV and AIDS Prevention and Control Act (hereinafter referred to as “HAPCA”).

7. The Respondent entered appearance on the 16th of June 2021. In its statement of response, the Respondent denied the allegations against it by the Claimant.

B. The Claimant’s Case 8. The Claimant testified that the Respondent is a VCT centre in Thika where she had previously worked as a Peer Educator. She stated that she had also been receiving medication for HIV from the centre. She testified that the Respondent paid for her NHIF and produced the NHIF member data summary as Exhibit 1.

9. The Claimant testified that on the 27th of October 2021, she attended the peer leaders meeting at the Respondent’s offices. The work of Peer Educators includes seeking out commercial sex workers and advising them on safe practices, which include the use of condoms. After the meeting, the Claimant proceeded to the reception for her medical file. She stated that she was not aware where the files were kept. As she sat waiting for the file, there were two other girls who had come to the clinic. She testified that M. (RW2) approached her and said, “I call you and you refuse to pick. Why? You are a defaulter, you have refused medicine”. In the Claimant’s understanding, a defaulter is a person who refuses to take their medication.

10. The Claimant testified that RW2 and RW5 also kept calling her a defaulter. RW2 then confronted her physically, resulting in injuries. The other girls who were seated were removed from the room and were out at the window listening to what RW2, RW4 and RW5 had told her. She testified that one Dr. K. (RW1) intervened and took her to the Doctor’s office. She testified that she has never failed to take medicine and has never defaulted. She described that RW2’s work was to monitor those who have not taken medicine. RW2 always called the Claimant to monitor her, too.

11. She testified that while at Dr. Kibe’s office, the Field Officer threatened her not to protest RW2’s issue or else she would never work there again.

12. The Claimant reported the assault at the Police Station, whichassault which resulted in injuries to her thighs. She produced the OB No. 07/10/2020 as Exhibit Two. She testified that she went to the Police Station accompanied by CW2, Wangare, Mueni, Karemi and Martha. She also went to Thika Level 5 Hospital for treatment but was not treated. She then went for treatment at Waka Clinic on the 28th of October 2021 and produced the receipt as Exhibit 2 evidencing treatment.

13. The Claimant testified that she was aggrieved since her friends, who did not know her status, came to know about it. The Claimant was also unable to pay rent and was forced to relocate. Being a commercial sex worker, her business was adversely affected by the said disclosure, resulting in her financial woes.

14. The Claimant testified that she was also aggrieved by the Respondent, which failed to store her information confidentially. She noted that the Respondent has not done anything to rectify the situation or offered her any assistance.

15. On cross examination, the Claimant stated that she was an employee of the Respondent and was paid on a monthly basis. She described her work that entailed peer education to sex workers in streets and bars and referring them to the Respondent where they are attended to. She testified that she did not know the status of the sex workers who attended the clinic and none of them knew her status. She stated that her colleagues did not also know about her status.

16. She testified that CR2 who came to the reception to hand over a bag to the Claimant. CW2 would not have known what the Claimant was doing at the reception since she did not have access to the patient files. She testified that the files were kept in a room that was not locked. She said that she could not confirm if the Respondent had proper storage as the door was always open and files could be retrieved even by a messenger or cleaner. She stressed that CW2 could not have known about her status as she is a peer leader and she only came to know at the time RW2 disclosed the same.

17. She testified that she is suing the Respondent as it failed to keep the files well as there was no security and it has failed to promote confidentiality. She testified that she was not aware if any of the documentation was disclosed and said it was possible that information on her file was leaked. She testified that she lost her income when her status was disclosed.

18. On re- examination, she clarified that one had to be a sex worker to work as a peer educator with the Respondent and one need not be HIV positive to work as one. She clarified that one needs not be positive and disclosing one’s status was voluntary.

19. CW2, S. W. W, testified that the Claimant was her colleague at work. On the material day, whilst at the reception of the Respondent’s offices, RW2 came into the room and asked “Why do I call you to come and take medicine and you refuse?” to which the Claimant responded, “I told you I don’t need medicine” She testified that she knows RW2 as the one who does the HIV testing. There were other two ladies at the reception whom she suspected were clients. She testified that they were taken to 3rd Floor to the “safe space” and in the presence of a group of people, RW4 told them that the Claimant never takes ARVs. She testified that it was not mandatory that peer educators are HIV positive as they receive other services at the clinic such as PrEP and STI medication.

20. On cross examination, CW2 testified that there were three persons at the reception when she went in, the Claimant and two clients. The next person that came in was RW4 who walked towards the Claimant and asked about her taking medicine. She testified that the other sex workers were outside and did not hear what RW2 said. She testified that she has a file with the Respondent and she does not know the contents of either file. She testified she was not in the meeting held by the Respondent. The Claimant left work because she was told to apologize or not go to work.

21. CW3, L. I, testified that she knows the Claimant as a peer educator. She testified that she was at the safe space where she was told by RW4 about the Claimant’s status. She was not aware of the Claimant’s status prior to the said date. She testified that the Claimant has been affected and has closed her business and is not working.

22. On cross examination, she testified that on the said date, she was attending the monthly meeting at the offices. She testified that she met RW1, RW3 and RW4. She further stated that RW4 told them at the safe space that the Claimant is a defaulter. She does not know whether the Claimant went to the therapist. CW3 testified that the Claimant relocated to a small house and discontinued her child from the school they were attending. She stated that she is unaware whether the Claimant has spoken to her employer or any steps taken by the employer.

C. Respondent’s Case 23. The Respondent on its part called five witnesses.

24. RW1, Dr. J. W. K, testified that she was a clinical officer working with the Respondent at Thika. She offers surgical and medical interventions to patients. She testified that there are standard operating guidelines that guide them with regard to file management. The information is stored in the electronic management system and the data management officer uses special coding to retrieve the physical files. The files are under lock and key and can only be accessed by the data management officers and the strong room is attended by data managers. She described that the process is that when a client comes in, they are attended to at the reception, where their name and number are noted. The data manager retrieves the files from the data room and the client is taken to a different service area. Once the file is retrieved, it’s given to the receptionist who then takes it to the service rooms. Clients are not attended to at the reception.

25. There is a confidentiality policy and at enrollment everyone signs a confidentiality document. She stated that on the date of the incident, she was at the clinic and attending to clients when she heard a commotion at the reception. She testified that the Claimant and RW2 had an exchange. She states that there was RW2, RW4 and one Agnes, but no clients at the reception. She did not hear anyone call the Claimant a defaulter and did not see RW2 attack the Claimant. The Claimant had missed an appointment and there was a list to that effect. The discussion was not done in the presence of the Claimant’s colleagues, but proceeded confidentially.

26. On cross examination, she testified that according to her, the Claimant and RW2 were bitter and the two exchanged words. She walked to the reception as her office was close by and she took the Claimant to her office and inquired what the problem was. She then re-filled the Claimant’s prescription. She testified that it was true that she heard noise but did not hear the words that were said because of the distance from her office.

27. RW2, M. A, testified that she works for the Respondent and offers adherence care to clients on medication and PrEP. She also offers counselling sessions to visiting patients The witness adopted her statement dated the 6th of July 2021. On cross examination, she stated that her relationship with the Claimant is one of a health service care provider and client. She testified that her job entails treatment adherence support and she gives counselling and follow up on HIV care. She stated that the reason she called the Claimant was about her treatments as the Claimant missed treatment. She tried calling the Claimant several times but she was hostile. She testified that she has training in counselling psychology and could tell the patient was troubled. She stated that she was not at the meeting. She is aware of the NASCOP guidelines where one is required to seek consent which they do through a consent form. Disciplinary action was taken against her.

28. On re-examination, she testified that she informed RW3 of the statements because the Claimant had called her way before work which requires that she reports to the immediate supervisor. She testified that it was a dispute between employees. She stated that she called the Claimant twice because she had missed her refill. She received the third call from the Claimant where she asked her not to her again. According to her, it was a personal call and not work related.

29. RW3, A.L, testified that he works for the Respondent as a field officer and a supervisor of peer educators. He stated that they have monthly meetings at the end of the month to review the past month and plan for the next month. He testified that the peer educators receive a monthly stipend of Kshs. 3,500 per month, NHIF, and their transport costs are reimbursed. On the day of the incident, there was a review meeting. He testified that a week before, the claimant and RW2 had a heated argument on the phone and that he tried to reach out to the Claimant to get her side of her story but didn’t reach her. He testified that he heard a lot of noise coming from the reception and found there was an exchange between the Claimant and RW2. He testified that the Claimant used a lot of vulgarity. There was no physical fight and it was just a heated argument. He stated that the Respondent did not terminate the Claimant.

30. On cross examination, RW3 stated that he was the supervisor and his relationship had nothing to do with the Claimant’s care. The relationship between RW2 and the Claimant is that of a patient and an adherence counsellor. RW2 had reported to him an issue that she had with Claimant. He stated that he was present in the clinical room with RW1, RW4 and RW5, who were part of the Respondent’s staff. RW1 took the lead in the conversation. He testified that there was no disclosure of the patient’s status and that he is trained on confidentiality.

31. RW4, R. W, adopted her witness statement. On cross examination, she testified that she was covering the reception area on the said date and was the first person to attend to the Claimant. She testified that she attended to her as a patient. She testified that she only attended to two clients that day. She was unaware what services the Claimant wanted from the clinician. She testified that she retrieves patient files and takes them to RW2’s room as she is the first person each patient sees. She clarified that peer educators are not allowed to enter the reception area but stay at the safe space.

32. RW5, D. R. G, testified that she works at the Respondent as a HTS service provider and is the team leader of the HTS provider and provides HIV testing services. She adopted her statement. On cross examination, she testified that RW4 was responsible for the reception and she would know what she saw at the reception. She testified that she was with a client and a student prior to the commotion. She testified that on average clients at the facility are 20-25 in a day. She testified that they have a complaint procedure when they have issues with a client.

D. Issues For Determination 33. Having analysed the evidence and considered the submissions filed by the parties on 3rd November 2021 and 12th November 2021, respectively, we have narrowed down the issues for determination as follows:i.Whether the Respondent’s employees unlawfully disclosed the Claimant’s status to third parties without her consent;ii.Whether the Respondent is vicariously liable for violation of the Claimant’s rights by its employees;iii.Whether as a result of the unlawful disclosure the Claimant suffered stigmatization and/or discrimination;iv.Whether the Claimant is entitled to damages;

E. Legal Analysis i. Whether the Respondent’s employees unlawfully disclosed the Claimant’s HIV status to third parties without her consent 34. Section 22(1) of HAPCA provides, inter alia, that -No person shall disclose any information concerning the result of an HIV test or any related assessments to any other person except with the written consent of that person.

35. Section 22 of the Act prohibits disclosure of information concerning a person’s HIV status or any information that directly identifies a person to whom HIV test/status relates. Any disclosure would, therefore, violate the person’s confidentiality as stipulated under Section 22 of the Act and thus violate the right to privacy. The Respondent’s argument that Section 22 only speaks to disclosure of HIV test is rejected by this Tribunal. The claim is properly couched under the said section.

36. The Claimant testified that as a result of the Respondent’s employees’ public outbursts about her status and assessment relating to her treatment, her HIV status was unwillingly disclosed to her friends, fellow peer educators and staff members of the Respondent, therefore, violating Sections 22 and 23 of HAPCA. She testified that further, three parties, RW2, RW4 and RW5, caused her physical injuries.

37. As this Tribunal has opined previously, to obtain relief for violations under HAPCA, particularly that of unlawful disclosure of status, a claimant must demonstrate the manner in which the respondent violated these provisions. The Tribunal in EOD –vs- OC & Another, HAT No. 17 of 2018 noted that;“For a Claimant to succeed in a claim for disclosure as provided under section 22 of HAPCA, the Claimant must provide a witness to collaborate the evidence of disclosure in order to discharge that burden in respect of disclosure. This Tribunal has considered this issue on a number of cases. See the cases MCM – VS- BOO [2019] eKLR and BNN –VS- CMM (2019) eKLR, where this Tribunal held that for a party to succeed in a claim of disclosure, a Claimant must call a witness to show that the information was disclosed to another person other than the Respondent himself.”

38. Having established that there was an altercation between the Claimant and the Respondent’s employee, RW2, what remains in question is whether there was disclosure to third parties. The Black’s Law Dictionary defines the term disclosure as follows:“To make known, a revelation or the uncovering of a thing that is kept hidden.

39. The Claimant alleges that her friends and fellow peer educators, clients and staff of the Respondent heard the words allegedly uttered by RW2 being that the Claimant is a “defaulter” which the Claimant describes as being a stigmatizing and derogatory technical term referring to a person receiving antiretroviral therapy who misses refill appointments. It is clear from the definition that the same was in reference to a missed appointment by the Claimant for refills of ARVs. She called the witness CW2 to corroborate her testimony who testified that on the material day she heard RW2 question the Claimant on why she was not answering her calls to take medicine specifically stating “Why do I call you to come and take medicine and you refuse” to which the claimant responded as “I told you I don’t need medicine.”

40. CW2 testified that RW4 addressed her and other peer educators at the safe space where she said that the Claimant had defaulted and refused to take ARVs. Consequently, the other colleagues became aware of the Claimant’s status. CW2 and CW3 both testified that one need not be HIV positive to be a peer educator.

41. In as much as the CW2 did not testify that she heard the words “defaulter”, the questioning of the Claimant’s health status can be construed to be related to ARVs. The Tribunal believes that patient information, whether they are on ARVs or PrEP, is all confidential. It is incumbent upon persons charged with the responsibility of keeping such information or communicating the said information to patients to ensure that the same is done in confidence and with utmost level of care. The Tribunal notes that discussions on the Claimant’s health status were done in the presence of third parties, contrary to the principle of confidentiality as protected under the Act.

42. The Claimant further alleges that her status was further discussed in the clinical room where RW1, who is a clinician, discussed her issues on ARV refills in the presence of her colleagues, RW3 and RW5. Her colleagues were not privy to the information on her status as they were not clinicians nor part of data management and neither were they adherence counsellors. From RW1’s testimony, these were the parties authorised to access patient records and information. RW3 was a field officer and peer educator supervisor and RW5 was HIV Testing Service (HTS) Provider. RW3 confirmed that he was present in the clinical room when the Claimant was being attended to by RW1 and the drugs were discharged in his presence.

43. The Claimant testified that there were two people seated at the room, other than the support staff, whom she suspected were clients. The same was corroborated by CW2. None of them was presented before the Tribunal to tender evidence on the disclosure by RW2. However, the disparity in the testimonies by the Respondent’s witnesses leads us to believe that there were other people present at the reception on the day. RW4 testified that she only attended to 2 clients the entire day. On the other hand, during her cross examination, RW5 testified that the Respondent facility receives about 25 clients per day on average, though she could not confirm how many came in on that particular day. In fact, at the time of the commotion, RW5 was in the HTS room with a client and a student.

44. A claimant is required to meet the standard of proof, which in civil cases is on a balance of probabilities. In the case of D.T. Dobie & Company (K) Ltd –vs- Wanyonyi Wafula Chebukati [2014] eKLR, the court cited with approval the decision of Denning J., in Miller –vs- Minister of Pensions [1947], where it was held that:“The degree is well settled. It must carry a reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say; we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

45. It is clear from the foregoing that the Claimant has presented cogent and credible evidence before this Tribunal, which has been corroborated, to sustain a claim for disclosure of her status. The comments that were uttered by RW2 in the presence of her peer educators and staff members of the Respondent, the words uttered by RW4 at safe space in the presence of her fellow peer educators (CW2 and CW3) who have corroborated her evidence on the discussions surrounding her medicinal status that were made in their presence and the discussions and discharging of ARVs to the Claimant made in the presence of her colleagues (RW3 and RW5) all constitute gross violations of Sections 22 of HAPCA.

46. It is the finding of this Tribunal that the Claimant has discharged the burden of proving that the Respondent’s employees did indeed disclose her status to third parties without consent.

ii. Whether the Respondent is vicariously liable for violation of the Claimant’s rights by its employees 47. The Claimant has argued that the Respondent is vicariously liable for the acts of its employees. Black’s Law Dictionary defines vicarious liability as liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.

48. The Court of Appeal, in Joseph Wabukho Mbayi v Frida Lwile Onyango [2019] eKLRThe appellant’s argument is that the learned Judge misapplied the Salmon Test which has prevailed for almost a century as the yardstick for determining acts committed in the ‘course of employment’. Salmond on Torts, 1st ed. Pg 83 states:“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorized mode of doing some act authorized by the master.”The primary function of the ‘course of employment’ requirement is to ensure that the employee’s tort is sufficiently linked to the employer’s enterprise, so as to justify the imposition of liability on the employer. It thus limits the responsibility of the employer to acts committed by the employee, acting in their employment capacity, and excludes those related to personal or private life.

49. The Claimant also cited the case of William Muthoka Yumbia (Deceased) v Agility Logistics Limited Civil Appeal No. 51 of 2019 where the court quoted the case of Launchbury v Morgans (1973) AC 127, where the learned Judge stated,“I think the true test on vicarious liability can best be expressed in these words; was the servant doing something that he was employed to do? If so, however improper the manner in which he was doing it, whether negligence, or even fraudulently, or contrary to the express orders, the master is liable.

50. Placing reliance on the above cases and applying the test under the Salmond case, it is clear that vicarious liability is applicable when an employee does a wrongful act during the course of his/her employment. In the circumstances, the act was authorized, but the mode it was done wrongful and authorized.

51. It is not in dispute that the Respondent’s witnesses are all employees of the Respondent. RW2 was an adherence counsellor who in her testimony stated that her job entails treatment adherence support, counselling and follow up on HIV care. She testified that the reason she called the Claimant was about her treatments as the Claimant had missed treatment. At the time of the incident between her and the claimant, she was discharging her duties as an adherence counsellor. RW1 who is a clinician and RW4 who is a receptionist actions and comments on the Claimant’s ARV refills made in the presence of their colleagues and the Claimant’s peer educators respectively were all done during their course of employment with the Respondent, which is HIV care.

52. We do not agree with the Respondent’s submission that the altercation was a personal squabble between employees. From the evidence tendered before this Tribunal, the questioning on the medical treatment and the series of events that followed are all done during the course of employment. It’s a matter of Respondents acting negligently while discharging their duties. As a consequence, we believe the Respondent is vicariously liable for the actions of its employees.

53. The Claimant has in its submissions also extensively on the issue of the mechanism of confidentiality adopted by the Respondent. They discussed on Section 45 of HAPCA which that the Minister for the time being responsible for the matters relating to health may make various guidelines and regulations for prescribing anything required by this Act for the better carrying out of the objects of this Act. They have cited NASCOP Standard Operating Procedures (SOP’s) and guidelines that speak to data protection protocols and storage of client information. The Claimant claims that the Respondent has failed to put in procedures to ensure privacy and confidentiality of patient information.

54. Confidentiality is key to ensure that persons that suffer from HIV feel safe to access care. In as much as the claim herein is of personal natures as opposed to the confidentiality mechanisms adopted by the Respondent, it is incumbent upon this Tribunal ensures that clinics that offer care do follow set procedures and guidelines for protection of client information. The Respondent’s RW1 testified that client files are coded and locked in a strong room under the charge of a data management officer. She in addition stated that there is a form signed by clients at the opening of the files giving people involved in patient care access to their confidential information.

55. Regardless of the mechanisms adopted by the Respondent, implementation is key. The acts by the Respondent’s employees reflect that the Respondent has indeed failed to properly train its employees on the importance of maintaining confidentiality of client information relating to their care. The Tribunal cannot turn a blind eye and shall order the immediate training of all the employees of the Respondent on confidentiality.

iii. Whether as a result of the unlawful disclosure the Claimant suffered stigmatization and/or discrimination; 56. The Claimant has submitted that she has suffered stigma on account of the unlawful disclosure of her status by the Respondent’s employees.

57. In relying on the case of RAO –vs- MGH &2 others [2020] eKLR and H.A.T. Cause No. 27 of 2019 G.G.O.O vs M.O.A the Claimant submitted that she has suffered greatly as a result of the Respondent’s employees’ actions. The Claimant testified that sex workers who she worked with at the various hotspots had developed a negative perception towards her. She stated that her clients now refer to her as the one who has the “virus”. She further testified that she was unable to pay her house and was forced to relocate. Her food business also suffered. Her occupation as a sex worker was affected since she lost clients. Her witnesses CW2 and CW3 testified that she changed her behaviour, relocated from her home, removed her child from school and lost her job.

58. Section 3 of HAPCA provides that the object and purpose of the Act is, inter alia, to positively address and seek to eradicate conditions that aggravate the spread of HIV infection. This object is at the forefront of the Tribunal’s operations, which aims to address the issue of stigma within the society on persons with HIV. It goes without saying that in a society where persons living with HIV are exposed to stigma daily, disclosure of one’s HIV status would undoubtedly undermine a person’s dignity.

59. HIV stigma refers to irrational or negative attitudes, behavior and judgement towards people living with or at risk of HIV. The unfortunate consequence of such stigma is that it discourages some individuals from learning their HIV status, accessing treatment or staying in care. This also leads to negative feelings or thoughts by such persons. Indeed, breaking down HIV stigma is a critical part of ending the HIV epidemic and, therefore, a crucial role of this Tribunal. The Claimant herein stopped going to the Respondent’s clinic where she was a patient as a result of the stigma she suffered from the disclosure of her status.

60. It is, therefore, our finding that the Claimant suffered stigmatization as a result of the unlawful disclosure of the Claimant’s status by the Respondent’s employees.

iv. Whether the Claimant is entitled to an award of damages 61. Having found that the Claimant has proved her case on a balance of probabilities, we find that the Claimant is entitled to part of the reliefs sought.

62. The Claimant has sought special damages amounting to Kshs. 57,500/= and particularized as;a.Consultation and medical treatment in the amount of Kshs. 3,500/-b.Loss of earnings in the amount of Kshs 54,000/=onlyc.Costs of the suit

63. In the case of Douglas Kalafa Ombeva v David Ngama [2013] eKLR, the Court of Appeal held that:“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically”

64. With respect to her treatment after the assault, the Tribunal is not convinced that the Claimant suffered any injury on the particular date. None of the Claimant’s witnesses corroborated the evidence on the assault. The claim for specific damages for consultation and medical treatment in the amount of Kshs. 3,500/= fails.

65. In her evidence and submissions, the Claimant stated that she lost her job after the incident meaning her salary which RW3 testified as Kshs. 3,500/= per month together with NHIF and transport costs was lost since she did not resume her duties as a peer educator with the Respondent. There is sufficient evidence that the appellant lost income after the incident occurred. The Tribunal awards Kenya Shillings Forty Nine Thousand (Kshs. 49,000/=) being her income calculated from the date of the incident to the date of this judgment.

66. The question now is the determination of the damages that the Claimant is entitled to for impairment of dignity, pain and suffering and/or emotional and psychological suffering as a result of the unlawful disclosure. The Claimant relied on the case of E.O.D –vs- O. C [2020] eKLR, where the Tribunal awarded the claimant a sum of Kshs 350,000/- for general damages against the respondents for emotional and psychological suffering as a result of the disclosure of his HIV status without the Claimant’s consent.

67. In Francis Xavier ole Kaparo –vs- Standard Ltd & 3 Others [2010] eKLR, the Court held that where a plaintiff’s reputation and dignity are injured, he is entitled to general, exemplary and aggravated damages to vindicate him to the public and to console him for the wrong done. In the case herein, the damage to the Claimant’s dignity and self-esteem cannot be underplayed.

68. In determining the quantum of damages that the Claimant herein is entitled to, the Claimant relied on the cases of VMK –vs- CUEA [2013] eKLR, where the court held that the disclosure of the Claimant’s status to third persons without her authority demonstrates the seriousness of the violations and the need to compensate the claimant for the hurt feelings and eventual loss of employment due to HIV status and was awarded Kshs 5,000. 000/=. She also relied on the case of MM v MWN & another (2020) ekLR where the claimant was awarded Kshs. 250,000/= as compensation for emotional and psychological distress arising from disclosure arising from the disclosure of his HIV status.

69. Alive to the differences in the cases above, the previous decisions of the Tribunal and the case herein, we feel that an award of Kshs. 300,000/- would be sufficient to compensate the Claimant for the stigma she endured and loss of dignity.

F. Determination 70. Having considered the pleadings, evidence on record and analysed all the issues, it is the finding of this Tribunal that;i.On the first issue, whether the Respondent’s employees disclosed the Claimant’s HIV status to third parties without the Claimant’s consent, we find that the Respondent violated the provisions of section 22 of HAPCA by wrongfully and unlawfully disclosing the Claimant’s status, real or perceived, without the Claimant’s consent. Accordingly, we award the Claimant Kshs 500,000/- for this limb of the claim.ii.On what reliefs the Claimant is entitled to, we find that the Claimant is entitled to damages for emotional and psychological distress as a result of the stigma, and award the Claimant Kshs. 300,000/- for this limb.

71. In conclusion, this claim is determined as follows:a.Judgement is hereby entered in favour of the Claimant against the Respondent in the sum of Kshs 49,000 /- as special damages;b.Judgement is hereby entered in favour of the Claimant against the Respondent in the sum of Kshs. 800,000/- by way of general damages;c.The above sums shall attract interest at court rates from the date of this judgment until payment in full;d.The Respondent and its employees are hereby restrained from further disclosing the Claimant’s status, discriminating, stigmatizing and/or harassing the Claimant;e.The Respondent immediately embarks on training of its employees on confidentiality and provide evidence before this Tribunal within 60 days from the date of this judgement and;f.Costs are awarded to the Claimant.

DATED AND SIGNED IN NAIROBI THIS 17TH DAY OF DECEMBER, 2021 DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2021. Delivered virtually in the presence of: Ms. Wanjiru for the ClaimantMr. Achillah for the RespondentHELENE NAMISI (CHAIRPERSON)MELISSA NG’ANIATUSMO JAMADR. MARYANNE NDONGAJUSTUS T. SOMOIREABDULLAHI DIRIYEDOROTHY KIMENG’ECH