[2024] KEHAT 1450 (KLR)

DLM v ICN & 2 others (Tribunal Case 31 of 2022) [2024] KEHAT 1450 (KLR) (3 October 2024) (Judgment)

Neutral citation: [2024] KEHAT 1450 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 31 of 2022

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

October 3, 2024

Between

Dlm

Claimant

and

Icn

1st Respondent

Odw

2nd Respondent

Dnw

3rd Respondent

Judgment

A. Introduction 1. At the time of filing this claim, the Claimant herein was a student at [name withheld] pursuing a course in Film Studies. It is his case that during the period of September 2021 he was doing a project together with his classmates, which project was to be uploaded online upon completion.

2. He testified before us that upon completion of this project and uploading the same, his classmates searched his name online using a search engine to confirm whether the project would be linked to his name, which they confirmed. The Claimant also decided to search his name in the internet as well but to his surprise, the following top search results were displayed;Project #134|Empowering HIV + adolescents in Kenya….DLM, young person living with HIV….

3. The 2nd search result above displayed his picture alongside the caption, “DLM, young person living with HIV. The Claimant testified that he learnt from the said report dubbed project #134 started as a partnership between the 2nd Respondent and the 1st Respondent where it displayed the Claimant’s image in one of the segments in the report indicating the Claimant’s full name, residence, school, course and HIV status.

4. In his testimony, he confirmed that he knows about the 1st Respondent as he used to attend to their meetings as well as the 3rd Respondent who is the Chief Executive Officer of the 1st Respondent. He told the Tribunal that he has never interacted with the 2nd Respondent and that he was a stranger to him. He testified that he has never consented to anyone sharing or publishing his story including the organization he was working for then.

5. The Claimant’s evidence is that he did his own investigations which led him to meet with the 3rd Respondent who informed him that they were resource mobilizing and confirmed that they gave the Claimant’s story to the 2nd Respondent to publish. The Claimant then requested the 3rd Respondent to pull down the story as the Claimant at the time he was running for a leadership position at the university, but the same was never pulled down hence necessitating the filing of this claim.

6. In his claim which was first filed before the High Court as a petition before it was transferred to this Tribunal, the Claimant is seeking the following;a.An order compelling the Respondents to delete and pull down from their website all posts and materials concerning the Claimant being the following links;i.https://onedayswages.org/project-134-empowering-hiv-adolescents-in-kenya/ii.https://onedayswages.org/project-134-empowering-hiv-adolescents-in-kenya/duke-laurent-mwai-young-person-living-with-hiv-and-youth-mentor/b.A permanent injunction against the 1st, 2nd and 3rd Respondents from posting and publishing the Claimant’s health status on their online platforms or any publication.c.A declaration that the Claimant’s statutory rights provided for under section 22 of the HIV and AIDS Prevention and Control Act No. 14 of 2006 were infringed by the 1st, 2nd and 3rdRespondents.d.Award for general damages, exemplary damages and aggravated damages for violating the Claimant’s right to privacy and infringing the statutory rights under the HIV and AIDS Prevention and Control Act No. 14 of 2006e.An order compelling the 1st Respondent to conduct training on their staff and management on HIV policies and for the organization to have HIV and AIDS policies.f.Costs and interest of the suit.

7. The Respondents were all served with the pleadings. The 1st Respondent instructed a firm of Gitonga Muthee & Company Advocates to represent it but the firm on the 4th September, 2023 filed an application seeking leave to cease acting for the 1st Respondent for lack of instructions. This matter therefore proceeded as undefended cause on the 23rd February, 2024.

B. Issues For Determination 8. This Tribunal having read through the pleadings filed, having heard the evidence of the Claimant together with his written submissions dated 7th March, 2024 and the listed authorities in support of the Claimant’s case, the Tribunal has identified the following as issues for determination in this matter:i.Whether by publishing the claimant’s HIV status on its platforms without the Claimant’s consent was a violation of the claimant’s rights under section 22 of HAPCA; andii.Whether the Claimant is entitled to the reliefs sought.

C. Legal Analysis 9. Section 22 of HAPCA provides that;(22). Disclosure of information(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;(b)if that person has died, with the written consent of that person’s partner, personal representative, administrator or executor;(c)if that person is a child with the written consent of a parent or legal guardian of that child:Provided that any child who is pregnant, married, a parent or is engaged in behaviour which puts other persons at risk of contracting HIV may in writing directly consent to such disclosure;(d)if that person is unable to give written consent, with the oral consent of the person or with the written consent of the person with power of attorney for that person;(e)if, in the opinion of the medical practitioner who undertook the HIV test, that person has a disability by reason of which the person appears incapable of giving consent, with the written consent, in order, of—(i)a guardian of that person;(ii)a partner of that person;(iii)a parent of that person; or(iv)an adult offspring of that person;(f)to a person, being a person approved by the Minister under section 16, who is directly involved in the treatment or counselling of that person;(g)for the purpose of an epidemiological study or research authorized by the Minister;(h)to a court where the information contained in medical records is directly relevant to the proceedings before the court or tribunal;(i)if the person to whom the information relates dies, to the Registrar of Births and Deaths pursuant to section 18 of the Births and Deaths Registration Act (Cap. 149); or(j)if authorized or required to do so under this Act or under any other written law.(2)Subsection (1) shall not apply to a disclosure of statistical or other information that could not reasonably be expected to lead to the identification of the person to whom it relates. [Act No. 6 of 2009].

10. A clear reading of the above provision of the law shows that for one to disclose HIV status of an individual, one must acquire written consent to disclose such information. “Consent” is defined under section 2 of HAPCA as follows: -“Consent” means consent given without any force, fraud or threat and with full knowledge and understanding of the medical and social consequences of the matter which the consent relates;

11. The test for determining whether there is a violation of the right to privacy was established in Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR, where Justice Lenaola quoted with approval the Constitutional Court of South Africa in the case of Mistry v Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC) where it was stated that:“In order to determine whether there is a violation of the right to privacy, the Court ought to take into account the fact;i.whether the information was obtained in an intrusive manner,ii.whether it was about intimate aspects of an applicants’ personal life;iii.whether it involved data provided by an applicant for one purpose which was then used for another purpose andiv.whether it was disseminated to the press or the general public or persons from whom an applicant could reasonably expect that such private information would be withheld”.

12. With these principles in mind, we move to determine whether there is a violation of the Claimant’s right to privacy in the present instance.

13. In submitting under this issue, the Claimant testified that the Respondents without his consent went ahead and published a story in their website about the Claimant’s HIV status indicating his full names, age and school. This Tribunal has previously held that for one to prove disclosure, he/she must show that the disclosure was made to a third party without the Claimant’s consent and 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. In SM v ENO [2018] eKLR we held 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.

14. In this instance case, the Claimant has provided the publication which clearly shows his picture at page 14 with the following caption;DLM, young person living with HIV and Youth mentor

15. The above article appearing on the 2nd Respondent’s website authored by ODW Interns on 27th November, 2019 is clearly an affront to the Claimant’s rights as protected by Section 22 of HAPCA. This Tribunal has previously held that a person’s HIV status is a private affair and should not be disclosed to third parties without 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.

16. It is therefore our finding that the 2nd Respondent disclosed to the Claimant’s HIV status to third parties without the express authorization by the Claimant. The Claimant did not adduce any direct evidence whether the 1st and the 3rd Respondent were culpable in the circumstances and therefore we find that no case has been made out against the 1st and 3rd Respondents.

17. 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.”

18. 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 did not adduce direct evidence linking the 1st and the 3rd Respondent in such a disclosure perpetuated by the 2nd Respondent. The Claimant on this, did not discharge the burden of proof against the 1st and the 3rd Respondent and therefore the claim against them on disclosure must fail.

19. 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.

Whether the Claimant is entitled to the reliefs sought 20. Having answered the first issue to the affirmative, what is left for determination is the quantum of damages payable to the Claimant for the 2nd Respondent having breached the law by disclosing the Claimant’s HIV status without consent.

21. In his submissions, the Claimant relied on the case of SNW V ASHA GULAM [2019] eKLR where this Tribunal held that disclosure of one’s HIV status by the Respondent was wrongful and unlawful and amounts to violation of provisions of section 22 of HAPCA and awarded the Claimant Kshs.250,000/= as general damages.

22. The Claimant has also placed reliance on several High Court decisions on exemplary damages as well as this tribunal decisions which we have all considered. Whilst this Tribunal appreciates the above authorities, it is important to point out that the circumstances surrounding the material case herein are slightly different as such rendering the above awards as being inordinately high in the current situation.

23. We thus award Kshs.550,000/= being damages for disclosing the Claimant’s HIV status without consent and a further Kshs 250,000/= being exemplary and aggravated damages for violating the Claimant’s rights to privacy against the 2nd Respondent.

24. We further order and direct that the 2nd Respondent do permanently pull down the offending articles descriptive of the claimant immediately and that a permanent injunction is hereby granted against the Respondent from posting and or publishing the claimant’s health status on their online platforms or any publication without prior written consent from the claimant. The Claimant is hereby awarded costs of this claim and interest from the date of filing the claim until payment in full.

DATED AND SIGNED AT NAIROBI THIS 3RDDAY OF OCTOBER, 2024. DELIVERED AT NAIROBI THIS 3RDDAY OF OCTOBER, 2024. ………………………………………………CAROLYNE MBOKU - (CHAIRPERSON)DELIVERED VIRTUALLY in the presence of:HON. N. W. OSIEMO - (MEMBER)HON. B. O. YOGO- (MEMBER)HON. W. G. JAOKO (Prof.) - (MEMBER)HON. J. N. NGOIRI - (MEMBER)HON. S. K. MUSANI - (MEMBER)MosiomaKatee …………………………for The ClaimantNo Appearance For The RespondentMargaretJudy………………………………..court Assistants