[2021] KEHAT 673 (KLR)

AO v LAO & another (Cause 013 of 2020) [2021] KEHAT 673 (KLR) (Employment and Labour) (23 July 2021) (Judgment)

Neutral citation: [2021] KEHAT 673 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Employment and Labour

Cause 013 of 2020

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

July 23, 2021

Between

AO

Claimant

and

LAO

1st Respondent

MA

2nd Respondent

Judgment

A.Introduction 1. The Claimant filed this claim on 18/12/2020. It is the Claimant’s case that he was in a romantic relationship with the 1st Respondent, while the 2nd Respondent is a relative to the 1st Respondent. It is the Claimant’s case that the 1st Respondent was aware of his HIV status and that the 1st Respondent did disclose his status to the 2nd Respondent without his consent. The Claimant’s case against the 2nd Respondent is that the 2nd Respondent has been harassing the Claimant by sending him offensive text messages. As a result of the Respondents’ actions, the Claimant pleads that he has suffered emotionally and psychologically.

2. The Claimant seeks from the Respondents jointly and severally the following reliefs:-i.A declaration that the Claimant has suffered a violation and infringement of his rights as guaranteed and protected under the law;ii.A permanent injunction restraining the Respondents, their representatives and/or assignees from further unauthorized disclosure and discrimination;iii.Compensation in the nature of general damages in respect of impairment of dignity, pain and suffering and/or emotional and psychological suffering as a result of wrongful disclosure and discrimination;iv.Cost of the suit;v.Interest on (c) and (d) at Court’s rate; and,vi.Any other relief that the Tribunal deems fit to award.

3. The 1st Respondent filed a Statement of Defence on 26/03/2021. The 1st Respondent denied all allegations made by the Claimant save for the fact that the 1st Respondent and the Claimant were at one time in a romantic relationship.

4. The 2nd Respondent filed a Statement of Defence on 29/03/2021. The 2nd Respondent denied all the allegations pleaded by the Claimant in his Statement of Claim and put the Claimant to strict proof.

B:The Claimant’s Case 5. The Claimant testified on 28/05/2021 and called two witnesses, himself and CW2. It was the Claimant’s testimony before the Tribunal that he was in a romantic relationship with the 1st Respondent from 3/05/2016 until 3/05/2020 when the relationship broke down. The Claimant testified that he disclosed his status to 1st Respondent for the reason that they were in a romantic relationship. It is the Claimant’s testimony that he did not disclose his status to the 2nd Respondent. According to the Claimant, he came to know that the 2nd Respondent was aware of his HIV status when the 2nd Respondent sent him a message claiming that the Claimant was sick. The Claimant also testified that the 2nd Respondent had on another occasion, as he was going to Mama Lucy Hospital for his medication, called him and threatened him that she would sue the Claimant for infecting the 1st Respondent with HIV. It was the Claimant’s testimony that he felt bullied as a result of the messages that were sent to him by the 2nd Respondent. The Claimant also testified to the fact that as a result of the disclosure of his status by the Respondents, the Claimant had to defer his studies at Kenya Water Institute where he is pursuing a diploma course.

6. On cross-examination by Mr. Mungai, Counsel for the 1st Respondent, the Claimant testified that they had been in a romantic relationship with the 1st Respondent but that after they broke up, the 1st Respondent disclosed his status to the 2nd Respondent. The Claimant admitted that he was aware that the 2nd Respondent was a caregiver to the 1st Respondent when the 1st Respondent was unwell.

7. CW2, one S.O.O., adopted his witness statement and testified that he was a neighbor to the Claimant for a period of 3 years. It is the evidence of CW2 that he knew the 1st Respondent as the girlfriend to the Claimant.

8. On cross-examination, CW2 testified that he was told by the 1st Respondent that the Claimant has “virusi”. CW2 also testified that the Claimant has always been stressed and crying. On cross-examination by Ms. Bundi, Counsel for the 2nd Respondent, CW2 testified that he did not know the 2nd Respondent but he just hears about her. On re- examination, CW2 confirmed that he was not aware of the Claimant’s HIV status until the day the 1st Respondent called him.

The Respondents’ Case 9. The 1st Respondent, on examination in chief, adopted her statement and basically denied the allegations contained in the Statement of Claim. It was the 1st Respondent’s evidence that she did not disclose the Claimant’s status to anyone.

10. On cross-examination, the 1st Respondent confirmed that the Claimant did disclose his status to her sometime in March 2019. According to the 1st Respondent, it is at that time that their relationship did break up. The 1st Respondent also testified that the 2nd Respondent became aware of the HIV status of the Claimant because she was staying with her while she was taking pre-exposure prophylaxis (PrEP) . The 1st Respondent testified that she had ever met CW2 but could not recall whether she had, indeed, placed a call to CW2 through WhatsApp. On further cross-examination, the 1st Respondent confirmed that the 2nd Respondent came to know of the Claimant’s status because the 1st Respondent narrated the story to the 2nd Respondent. It was also the testimony of the 1st Respondent that at the time she was taking the PrEP, she was living with the 2nd Respondent who was her primary caregiver. On re-examination, the 1st Respondent testified that at the time she was taking the PrEP, she was always experiencing nausea, vomiting and as a result, the 2nd Respondent could tell that she was unwell.

11. The 2nd Respondent testified on 1/06/2021. It was the 2nd Respondent’s testimony that she is a business lady. The 2nd Respondent confirmed that, indeed, she is a cousin to the 1st Respondent and that the Claimant was a boyfriend to the 1st Respondent but that they had broken up.

12. On cross-examination by Ms. Wachira, Counsel for the Claimant, the 2nd Respondent testified that she became aware of the Claimant’s status at Kariobangi Police Station where the Claimant did disclose his own status. According to the 2nd Respondent, it was the Claimant who disclosed his status to everyone.

13. The 2nd Respondent confirmed that the messages that were attached to the Claimant’s Bundle of Documents did emanate from her cellphone number. It was the 2nd Respondent’s testimony that she speculated about the Claimant’s HIV status. According to the 2nd Respondent, her speculation was informed by the fact that the 1st Respondent was taking pre-exposure prophylaxis (PrEP) and as the caregiver to the 1st Respondent, she was able to read from the envelope that contained the PrEP. According to the 2nd Respondent, she did find the 1st Respondent taking the PrEP but she never discussed it with her. The 2nd Respondent also testified that, the number +254710****11 was her number and that she had indeed sent the Claimant a message on 12/07/2020 at 7:44pm. In the message, it was the 2nd Respondent’s evidence that the words “sick, sick, sick” meant that the Claimant was infected. According to the 2nd Respondent, the infection that she meant was a sexually transmitted infection (STI) and gonorrhea. It was the 2nd Respondent’s testimony that she did not have the intention of using those specific words but the Claimant kept on calling and insulting her. This irritated her and she ended up losing her cool. It was the 2nd Respondent’s testimony that she did not know one J.O and that she had never contacted him nor was she friends with the Claimant on Facebook.

14. On cross-examination by Mr. Mungai, Counsel for the 1st Respondent, the 2nd Respondent was categorical that she had never met the Claimant though she knew the Claimant through the 1st Respondent because the 1st Respondent and the Claimant were in a relationship. According to the 2nd Respondent, she came to know about the 1st Respondent taking PrEP because she was the caregiver to the 1st Respondent. The 2ndRespondent testified before the Tribunal that the 1st Respondent did not inform her of the PrEP but she just speculated as to the reason why the 1st Respondent was taking the PrEP.

15. On re-examination by Ms. Bundi, the 2nd Respondent confirmed that, indeed, she had sent the message “sick, sick, sick” to the Claimant. The reason why she did that was, because according to the 2nd Respondent, the Claimant was nagging and bothering her.

D:Issues for Determination 16. At the close of the hearing, parties filed their respective submissions. The Claimant’s submissions are dated 22/06/2021, the 1st Respondent submissions are dated 6/07/2021 while the 2nd Respondent’s submissions are dated 8/07/2021. We have considered the pleadings, the evidence by the parties as well as the submissions filed. The issues that fall for determination are as follows:-i.Whether the Respondents disclosed the HIV status of the Claimant to third parties without the Claimant’s consentii.Whether as a result of the disclosure of his status, the Claimant suffered stigmatization; andiii.Whether the Claimant is entitled to reliefs sought;

E:Legal Analysis 17. We proceed to analyze the issues as follows:-i.Whether the Respondents disclosed the Claimant’s status to third parties without the Claimant’s consent

18. Section 22(1) of the HIV & AIDS Prevention and Control Act, 2006 (hereinafter HAPCA) prohibits the disclosure of one’s HIV status without the consent of that person. Under Section 23 of HAPCA, a person who contravenes this provision is guilty of an offense.

19. According to the Claimant, the 1st Respondent disclosed his status to one E. L who, according to the Claimant, reached out to the Claimant’s employer. The Claimant testified that this forced the employer to send the Claimant on leave. According to the Claimant, the reason for this action by the employer was because the Claimant could not cope with the emotional stress that he was undergoing and at the same time discharge his obligation at work. The Claimant also testified that the 2nd Respondent disclosed his status to one J.O who is their mutual friend on Facebook. According to the Claimant, the 2nd Respondent used her Facebook account to contact J. O. The Claimant did not provide any evidence to confirm that indeed the 2nd Respondent did contact J. O. through Facebook.

20. According to the Claimant, it is E. L who confirmed to him that it is the 1st Respondent who disclosed the Claimant’s status to him. The Claimant also testified that the 1st Respondent disclosed his status to the 2nd Respondent herein. The Claimant admitted in his pleadings as well as the testimony before Tribunal that he disclosed his status to the 1st Respondent himself. The reason for the disclosure, according to the Claimant, was because of his relationship with the 1st Respondent. It was the Claimant’s testimony that he did not give the 1st Respondent the consent to disclose his status to anybody.

21. According to the 1st Respondent, the Claimant did not disclose his status to her at first instance.. However, she admitted that the Claimant did disclose his status to her later on. It is, therefore, a fact as admitted by both the Claimant and the 1st Respondent that the Claimant voluntarily disclosed his status to the 1st Respondent.

22. The issue that remains for interrogation is whether the 1st Respondent, having known the Claimant’s status, disclosed the said status without the consent of the Claimant. The Claimant has faulted the 1st Respondent for disclosing his status to one E. L who, in turn, disclosed the Claimant’s status to his boss. The Claimant did not adduce any evidence to show that, indeed, it is the 1st Respondent who disclosed the Claimant’s status. It is, therefore, the finding of this Tribunal that without proof of evidence of disclosure to a third party, the same remains hearsay.

23. The Claimant has also blamed the 1st Respondent for disclosing his status to the 2nd Respondent. The Claimant testified before the Tribunal that he became aware of the fact that the 2nd Respondent was aware of his status when the 2nd Respondent sent him a message to the effect that he was sick. On cross-examination of the 1st Respondent, the 1st Respondent testified that she did not disclose the Claimant’s status to the 2nd Respondent. CW2 testified that it is the 1st Respondent who informed him of the Claimant’s status through a WhatsApp call. The 1st Respondent did not controvert this evidence. We, therefore, hold that the Claimant has proved that indeed the 1st Respondent did disclose the Claimant’s HIV status to CW2.

24. As regards disclosure to the 2nd Respondent, the 1st Respondent testified that she never told the 2nd Respondent of the Claimant’s status though she admitted during cross- examination by Ms. Wachira that, “Maureen came to know about the status of Austin when I narrated the story to her.”

25. For this reason, we find that the 1st Respondent disclosed the Claimant’s status to CW2 and the 2nd Respondent herein without his consent and, therefore, contravenes Section 22 as read with Section 23 of HAPCA.

26. We, however, do not find any evidence linking the 2nd Respondent to the disclosure of the Claimant’s HIV status. The Claimant did not adduce any evidence to the fact that indeed the 2nd Respondent sent messages through her Face book profile to one J.O. Similarly, the Claimant never called J.O to confirm that indeed he had been told of the Claimant’s status by the 2nd Respondent. Without such evidence, it would be difficult for the Tribunal to find that, indeed, there was disclosure of the Claimant’s status as the same remains hearsay.

ii. Whether the Respondents disclosed the HIV status of the Claimant to third parties without the Claimant’s consent. 27. Section 3 of HAPCA provides that one of its objectives is to guarantee the privacy of the individual which is aimed at offering support to persons living with or affected with HIV in order that their dignity is maintained. This is one of the many ways in which the fight against the spread of HIV and AIDS can be won. It is, therefore, incumbent upon this Tribunal to ensure that persons living with or affected with HIV and AIDS are given full protection in order that the fight against HIV may be won.

28. The Claimant testified that as a result of the messages that the 2nd Respondent sent to the Claimant, the Claimant felt bullied and was adversely affected emotionally and ended up crying most of the time. It is the Claimant’s testimony that at some point, he did contemplate committing suicide. The 2nd Respondent, on her part, stated, “I confirm that I just speculated that the Claimant was HIV positive because I was staying with my cousin and reading on the envelope they were for one who was protecting herself.” The 2nd Respondent further testified that by the words “sick, sick, sick”, she meant being infected with STI and gonorrhea.

29. In the case of G.G.O.O v M.O.A [2021] eKLR, the Tribunal held that:-“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.”

30. The 2nd Respondent in proceeding to send the Claimant messages basing on his HIV status was clearly an act that was irrational and one of a negative attitude towards the Claimant. Such actions by the 2nd Respondent made the Claimant feel bullied and contemplated committing suicide. Such actions go against the provisions of Section 3 of HAPCA and the Tribunal finds that the 2nd Respondent’s actions amounted to stigmatization of the Claimant.

iii. Whether the Claimant is entitled to the reliefs sought 31. Having found that the 1st Respondent disclosed the Claimant’s HIV status to other parties without consent of the Claimant, the Claimant is entitled to an award of damages. The issue that is, therefore, left for the determination by this Tribunal is the amount of damages to be awarded.

32. The Claimant has relied on the case of EOD v OC [2020] eKLR and urged the Tribunal to award the Claimant Kshs. 350,000/= in general damages.. The High Court, in the case of GSN v Nairobi Hospital & 2 others [2020] eKLR, noted that in assessing the award of damages in cases of disclosure, the Court should take into account the impact of the disclosure on the claimant’s life. In that case, the Court awarded the petitioner Kshs. 2,000,000/=. In RAO v Mediheal Group of Hospitals & 2 others [2020] eKLR, the High Court awarded the claimant Kshs. 500,000/=.

33. Taking into account the circumstances of this case, we hold that a sum of Kshs. 350,000/= would be adequate compensation to the Claimant. On the first issue, whether the Respondents disclosed the Claimant’s HIV status to a third parties without the Claimant’s consent, we find that the 2nd 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 350,000/- for this limb of the claim.

34. In the case of RAO v Mediheal Group of Hospitals & 2 others [2021] eKLR, the High Court awarded the claimant in that matter, a sum of Kshs. 850,000/= for emotional and psychological distress as a result of stigma. Taking into consideration the circumstances of this case and using the decision of the High Court as guidance, we award the Claimant a sum of Kshs. 400,000/= as sufficient to compensate the Claimant for the stigma he had to endure as a result of the 2nd Respondent’s actions.

35. Therefore, on the second issue, whether the Claimant as a result of the disclosure of his status suffered stigmatization, we find that the Claimant is entitled to damages for emotional and psychological distress as a result of the stigma caused by the 2nd Respondent. We award the Claimant Kshs. 400,000/= for this limb.

36. On costs, the law is established that costs follow the event. In the case before us, the Claimant has succeeded in his claim against the Respondents. We, therefore, award the Claimant costs of this suit.

F: Determination 37. In conclusion, judgement is hereby entered in favor of the Claimant against the Respondents as follows:i.A sum of Kshs 350,000/- as damages payable by the 1st Respondent for unlawful disclosure of the Claimant’s status to third parties without the Claimant’s consent;ii.A sum of Kshs 400,000/- as general damages payable by the 2nd Respondent for the emotional and psychological distress occasioned to the Claimant by the 2nd Respondent;iii.The costs of the suit are awarded to the Claimant.Orders accordingly.

Dated at Nairobi this 23RD day of JULY 2021Delivered at Nairobi this 23RD day of JULY 2021Delivered virtually in the presence of:Ms. Wachira for the ClaimantMr. Mungai for the 1st Respondent Ms. Bundi for the 2nd RespondentHelene Namisi (Chairperson) ………………..…………….Melissa Ng’ania………………………….......Justus T. Somoire………………………………Dr. Maryanne Ndonga………………………............Abdullahi Diriye……………………………….Tusmo Jama………………………………..Dorothy Kimeng’ech………………………………..