[2024] KEHAT 1375 (KLR)

DKM (On Behalf of HMK) v PM (Cause 2 of 2024) [2024] KEHAT 1375 (KLR) (27 September 2024) (Judgment)

Neutral citation: [2024] KEHAT 1375 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 2 of 2024

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

September 27, 2024

Between

DKM

Claimant

On Behalf of HMK

and

PM

Respondent

Judgment

A. Introduction 1. This Tribunal was moved by way of a Statement of Claim dated 21st May, 2024 but filed on 29th May, 2024. The reliefs sought in the claim are:a.An Order against the Respondent restraining her from discriminating, stigmatizing and/or harassing the Claimant;b.A declaration that the Respondent infringed on the rights of the Claimant under section 22 and 23 of the HIV and AIDS Prevention and Control Act;c.Damages for the impairment of dignity, emotional and psychological suffering;d.A public apology by the Respondent to the Claimant;e.Costs of this Claim and interest thereon at court rates; and;f.Any other relief that this Honourable Court may deem just and fit to grant.

2. On 23rd July, 2024, the Respondent filed a Response to Claim dated 18th July, 2024 which surprisingly bore no prayers of any sort of relief(s) from this Tribunal.

3. The matter partially proceeded for hearing on 11th July, 2024 before being adjourned to 25th July, 2024 when it was heard to its conclusion with both parties closing their cases. The Claimant called a total of four witnesses whereas the Respondent called two witnesses. On 15th of August, 2024, it was confirmed that both parties had filed their written submissions.

B. The Claimant’s Case 4. It was the Claimant’s (CW2) case that she was presenting the claim on behalf of her ten-year-old child who is currently a grade four pupil at a school where the Respondent is a teacher. That the offending circumstances that gave rise to this claim were that sometime in the year 2020, the Claimant was admitted in hospital as a result of pregnancy related medical complications. During the said period of her admission, the minor was to be under the care of the Claimant’s mother, or the minor’s grandmother, so to say. However, for some undisclosed reason, the minor allegedly failed to attend school for an extended period, leading to a certain lady reporting the issue to authorities and this led to the minor being remanded in a facility where he was allegedly infected with a skin condition. That sometime in November 2023, one week from the minor sitting for a scheduled exam, the claimant sent the minor to school albeit with school fees arrears of which the Claimant intended to pay at a later date. However, on getting to school, the Respondent told the minor that the minor’s skin condition resembled that of someone infected with and suffering from HIV. It’s the Claimant’s evidence that this was done in the presence of other teachers and other pupils who were all in the staffroom at the time. The Claimant also alleged that the minor indicated to her that the Respondent repeated the same sentiments in class and before other pupils. It was the Claimant’s testimony that the aforementioned led to the minor being stressed and reluctant to go to school and even indicating that he had a wish to die by suicide. Earlier in the year 2024, the very same incident recurred, but this time the offending teacher was a certain “Mrs. I” who was not a part of these proceedings.

5. The Claimant took the minor to a health facility to have his HIV status tested as a way of reassurance and that is where they met CW1 who was a HTS provider who offered counselling and testing to both the Claimant and the minor. That given the nature of the case as presented to him by the minor and the Claimant, CW1 called and reported the matter to the area Assistant Chief (CW3) who then recommended the pursuit of the claim herein before the Tribunal. The report also got to CW4 who was a community health worker volunteer when the minor apparently refused to go to school. The four persons together with the minor’s grandmother then proceeded to report the matter to the headteacher of the school. The said headteacher (RW2) apparently promised to look into the matter and to protect the minor.

C. The Respondent’s Case 6. The Respondent (RW1) testified that indeed she taught the minor when he was in grade three in the year 2023. That during a parents-teachers meeting, the Claimant revealed to her that the minor had been remanded by authorities and that the minor had contracted a skin condition while there. It was the Respondent’s testimony that the alleged skin condition was not visible to her when the Claimant was telling her about it. The Respondent denied ever uttering any words to the minor with regards to his HIV status or even the skin condition. It was her evidence in her statement that she believed the Claimant was making up the allegations as a form of malice due to the minor’s pending school fees arrears. She testified that the minor was a top performer and that his performance never deteriorated at any point.

7. The Headteacher (RW2) in her statement noted that sometime during the first school term of 2024, she received the Claimant, CW1, CW3, CW4 and the minor’s grandmother in her office with regards to complaints raised against the Respondent and “Mrs. I” having insulted the minor as having HIV as a result of what was allegedly a skin condition. It was her evidence that when she offered to call the offending teachers to her office in the presence of the Claimant and her team, the Claimant and her team refused and indicated that they were only there to inform her as the headteacher and that the matter had already been reported elsewhere. The headteacher however, claims to have questioned the two teachers about the alleged incident and they both denied the offence. It was her evidence that she did not seek to get information from the minor as she was informed that the matter would be investigated but that she kept talking to the minor about his continued well-being and that the minor was okay. She testified that the minor was a top performer and that his performance did not deteriorate. That the minor never showed up back in school when he was sent home for school fees arrears.

D. Issues for Determination 8. This Tribunal having read through the pleadings as filed by both parties, having heard the evidence of the witnesses from either side and having read through the submissions filed by the Claimant and the Respondent, has identified the following as issues for determination in this matter:i.Whether the Respondent unlawfully disclosed the minor’s HIV status, known or perceived, to third parties without consent;ii.Whether the minor suffered stigmatization and/or discrimination; andiii.Whether the Claimant is entitled to the reliefs sought.

E. Legal Analysis i. Whether the Respondent unlawfully disclosed the minor’s HIV status, known or perceived, to third parties without consent? 9. The HIV and AIDS Prevention and Control Act, Cap.246A (hereinafter ‘HAPCA’) enacts at section 22(1) that;“No person shall disclose any information concerning the result of an HIV test or any related assessments to any other person…”

10. HAPCA does not give a definition of the term disclosure, however, in the Black’s Law Dictionary, the same is defined as follows;“To make known, a revelation or the uncovering of a thing that is kept hidden.”

11. In the case of Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 Others -vs- Cabinet Secretary Ministry of Health & 4 Others [2006] eKLR, Hon. Lenaola, J (as he then was) expounded on the issue of the right to privacy.

12. This Tribunal has previously held that a person’s HIV status is a private affair and should not be disclosed to third parties without his/her consent as enacted in section 22 of HAPCA. This HIV status as covered by the aforementioned provision is both real or perceived, and so it matters not that the person disclosing the said status is unaware of the actual status of the person being offended.

13. It was the holding of this Tribunal in the case of GGOO -vs- MOA [2021] eKLR that;“34. On the definition of disclosure, the Respondent submitted that the term means ‘to make known, a revelation or the uncovering of a thing that is kept hidden’. He contended that the evidence tendered by the Claimant was an alleged conversation between the Claimant and the Respondent, which entailed innuendo of the Claimant’s status. According to the Respondent, the question, therefore, is whether by informing the Claimant of his HIV status, the Respondent’s conduct amounted to disclosure.35. On the one hand, we concur with the Respondent’s submissions with regard to definition of disclosure. On the other hand, we disagree that the alleged conversation was between the Claimant and Respondent only, and, therefore, cannot be construed to be disclosure. The evidence before the Tribunal clearly shows that there were at least 2 messages posted by the Respondent in a group, which alluded to the Claimant’s status, whether real or perceived. Without a doubt, the WhatsApp group did not compromise of the Claimant and the Respondent only, it had other members. In our view, this evidence tendered herein by the Claimant, which has not been countered by the Respondent, clearly indicates that there was publication of the Claimant’s status, real or perceived, to a group which group contained a large number of people.…37. Borrowing the words of the Learned Judge, the provisions of section 2 of HAPCA protect against unnecessary and unwarranted revelation of one’s status, which is a private affair. HIV status is a private affair whose disclosure can and will cause mental distress and injury to a person, hence the need to keep this information confidential. Having said this, it is clear that the Respondent violated the provisions of section 22 of HAPCA by unlawfully disclosing the Claimant’s status, real or perceived, to third parties without the Claimant’s consent.”

14. Considering paragraph 35 of the above cited case, it then becomes important that this Tribunal points out that for a party to successfully plead disclosure, they ought to either corroborate the said disclosure by the evidence of an independent witness, or prove that there was publication in a forum accessible by third parties.

15. The Claimant lodged this claim on behalf of her son, a minor, and to buttress her case, she called three other witnesses, none of which was the minor nor anyone who was there when the alleged offensive words were uttered in the staffroom. It was the Claimant’s evidence that the Respondent summoned the minor to the staffroom and in the presence of other teachers and pupils, referred to the minor’s skin condition indicating that it looked akin to a HIV infected person’s skin, this was in the year 2023. An almost exactly similar incident occurred again earlier in the year 2024, but this time, the offending teacher was a “Mrs. I” who is a stranger to the proceedings herein. The other minor reported both incidences to the Claimant, being his mother and after the Claimant noticed that the minor was not at peace and threatened suicide, she decided to take him for HIV testing so as to ease his mind and reassure him that all was well. The counselling and testing was conducted by CW1 who after learning of the circumstances necessitating the Claimant’s need to have the minor tested, informed the Assistant Chief (CW3) who in turn informed CW4, a community health provider volunteer.

16. Section 63 of the Evidence Act, Cap.80 provides that;1. Oral evidence must in all cases be direct evidence2. For purposes of subsection (1) of this section, “direct evidence” means –a.With reference to a fact which could be seen, the evidence of a witness who says he saw it;b.With reference to a fact which could be heard, the evidence of a witness who says he heard it;c.With reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner;d.With reference to an opinion or the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case maybe, who holds it on those grounds:Provided that the opinion of an expert expressed in any treatise commonly offered for sale, and the grounds on which such opinion is held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.

17. As indicated above, all the witnesses called by the Claimant were secondary recipients of the alleged information touching on the HIV status of the minor. None of the teachers present in the staffroom nor the other pupils were called to testify as to the veracity of the alleged utterances. Unfortunately, even the minor himself was not called to testify in his own case. It is important to note that unless the court finds otherwise, minors are legally competent witnesses. Section 125 of the Evidence Act, Cap.80 provides that;“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (of either body or mind) or any similar cause.”

18. The Claimant ought to have called the minor to court whereupon the court would have conducted an inquiry to satisfy itself that the minor’s age was not a deterrent to his understanding of the proceedings. The testimony of the minor would definitely hold more probative value as compared to the hearsay evidence of the Claimant and the other witnesses. It is vital to note and distinguish that the incapacity of the minor to bring a suit in his own name on account of age, necessitating filing through a guardian and next friend, as procedure requires, does not render the minor incapacitated or incompetent to testify as a witness where necessary. In this instant case, it was very necessary for the Tribunal to have heard from the minor directly, unfortunately this never materialized and as such all that the Tribunal was left to deal with was hearsay evidence. It is trite law that hearsay evidence is in fact and in law inadmissible. Considering the foregoing and the evidence presented to the Tribunal, we do find and determine the first issue to the negative.

ii. Whether the minor suffered stigmatization and/or discrimination? 19. Whereas the word discrimination has not been defined in the HAPCA, the definition is given in the Black’s Law Dictionary as, “the unjust and prejudicial treatment of different categories of people, especially on the grounds of ethnicity, age, health status, sex or disability.” In the case of SOO & Another -vs- ESI (Suing on behalf of EJZ (Minor) (Civil Appeal 19 of 2018) [2020] KEHC 931 (KLR) Hon. Mwita J held that;“When dealing with allegation of discrimination on any ground, including health status, the complainant must prove that were it not for the health status, he/she would not have been treated the way he/she was. In the respondent’s case, she had to prove to the satisfaction of the HIV and AIDS Tribunal, that the only reason why the minor was not admitted to the 2nd appellant was because of his health status. It must be shown prima facie that the minor’s health status was the motivating factor in denying him admission or that motivation could be inferred from the conduct of the person accused of discrimination.”

20. In as much as it has been alluded to in the case herein, no hard evidence was provided that indeed the minor was in any way driven out of the school as a result of the disclosure of his HIV status, real or perceived. The Claimant testified that she transferred the minor to a different school following the alleged utterances by the teachers, whereas the Respondent’s evidence was that the minor never reported back to school after he was sent home to fetch the outstanding school fees arrears.

21. As for stigmatization, this Tribunal is alive to the fact that stigma which often leads to discrimination is still a menace in the Country and most people rarely get the right support from the community when diagnosed with HIV. There is still need for massive public awareness on the causes, modes of transmission and prevention of HIV and HIV care and treatment. It is unfathomable the kind of trauma and psychological pain that the minor had to experience, even by the mere fact that he had to be taken for a HIV test. CW1 exhibited commendable professionalism when he counselled the minor in a way that a person of his age could comprehend, before and after testing him for HIV. This was according to his testimony and was also confirmed by the Claimant, and for this, the Tribunal will not hesitate to give him his flowers. It was also commendable of CW3 and CW4 to have responded promptly once the issues surrounding the minor’s circumstances were brought to their attention. For them to have taken their time to accompany the Claimant to the school to do a follow up on the issue and to seek a possible resolution of the matter is also commendable. This Tribunal reverberates the importance of everyone in society working together to ensure the observation and progressive fulfilment of the object and purpose of the laws on HIV and AIDS as set out in section 3(b)(ii) & (iii) of HAPCA.

22. However, we find that in as much as it is undeniable that the minor must have experienced trauma and felt stigmatized as a result of the whole experience, it would be unjust to hold the Respondent herein responsible for causing the said stigmatization. This is because, no satisfactory evidence was led during trial that linked the Respondent to the genesis of the perception that the minor was infected with HIV. The evidence given has already herein before been found to have been inadmissible hearsay evidence. The Tribunal would be blowing hot and cold if we were in one hand to find that there was not enough evidence that the Respondent disclosed the minor’s perceived HIV status, and in the other find that the Respondent was responsible for the minor’s stigmatization. The High Court in MKK -vs- CWN 2016 eKLR held that, “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.” Taking the evidence into account, the Tribunal is not satisfied that the Claimant met this threshold and as such we find the second issue for determination to the negative.

iii. Whether the Claimant is entitled to the reliefs sought? 23. Having found the first two issues to the negative, it essentially means that the Claimant’s claim fails and as such it then follows that the third issue for determination is also answered to the negative.

F. Determination 24. The upshot is that this Tribunal finds and holds that the Claimant has failed to prove her case against the Respondent. The suit by the Claimant is hereby dismissed accordingly, and given the nature of the claim, there shall be no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF SEPTEMBER, 2024. ………………………………………………HON. CAROLYNE MBOKU (CHAIRPERSON)DELIVERED VIRTUALLY in the presence of:HON. N. W. OSIEMO - (MEMBER)HON. B. O. YOGO - (MEMBER)HON. PROF. W. G. JAOKO - (MEMBER)HON. J. N. NGOIRI - (MEMBER)HON. DR. S. K. MUSANI - (MEMBER)HON. DR. I. N. MUKUI - (MEMBER)MS. MAGOMA FOR THE CLAIMANTMR. MWITI FOR THE RESPONDENTSYASMIN, COURT ASSISTANT.