[2024] KEHAT 169 (KLR)

EKM v MMM (Tribunal Case 60 of 2022) [2024] KEHAT 169 (KLR) (14 February 2024) (Judgment)

Neutral citation: [2024] KEHAT 169 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 60 of 2022

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

February 14, 2024

Between

EKM

Claimant

and

MMM

Respondent

Judgment

Introduction 1. The family is the corner stone of the society. Article 45(1) of the Constitution of Kenya states that the family is a fundamental unit of the society that needs the recognition and protection of the State. The Judiciary recognizes this fact and encourages Alternative dispute resolution mechanisms including Mediation to solve family disputes so as to maintain family relations.

2. This was a Complaint filed by the Claimant vide an undated amended statement of Claim filed on 4th October 2023. The Claimant and the Respondent are sisters. The Claimant has accused the Respondent of abusing her, stigmatizing her and disclosing her HIV status.

3. The Respondent denied the allegations. She stated that the Claimant disclosed her HIV status to the family in a family gathering. She admitted to have sent the Claimant a private message touching on her HIV status because the Claimant abused her. She called 4 of their siblings as witnesses in support of her defence.

4. The good book in Psalm 133:1 reads, “Look at how good and pleasing it is when families live together as one. ” This Tribunal recognizing the need to settle family disputes out of Court so as to foster the family bond directed the parties to attempt out of court settlement. They had a meeting on 15th August 2023 presided over by their Uncle CKO but the mediation session was not successful. The matter therefore proceeded for hearing.

The Claimant’s case 5. The Claimant and the Respondent are step-sisters. The Claimant claims that the Respondent has been tormenting and ridiculing her by unlawfully disclosing her HIV status and sending her abusive messages indicating that she is HIV positive to wit:“…you have worked so hard to damage your house, your brothers’ homes, your mother’s maids, sasa ni mimi mapepo ya Ukimwi yamekutuma? Hutaniletea ujinga peleka kwa wakikuyu wako. Meza ARV ulale stupid girl...”

6. She testified that the message was sent to her by the Respondent after the Respondent removed her from the family WhatsApp group following a disagreement in the group. She averred that she did not have an issue with the Respondent or the Respondent’s mother. On cross examination, she denied disclosing her status to her family members in a family meeting or abusing the Respondent. She further confirmed that that she had not received any information from third parties that the Respondent had informed them of the Claimant’s HIV status. She adopted her witness statement and closed her case without calling any witness.

The Respondent’s Case 7. The Respondent testified that the Claimant was troublesome. She used to send provocative TikTok videos to the family WhatsApp group to the chagrin of the family members. RW-3 who is their elder sister asked the Claimant to stop sending the videos but she continued to do so and dared the family members to remove her from the family WhatsApp group. The Respondent being the administrator of the family WhatsApp group deleted the videos and removed the Claimant from the group. The Claimant then sent her a private abusive message calling her a husband snatcher and it was then that the Respondent responded to the attack with the captioned message. She denied disclosing the Claimant’s HIV status to 3rd parties and admitted to knowing the Claimant’s HIV having known the HIV status of the Claimant for some time before the incident as the Claimant had informed the family in a family meeting.

8. To support her Defence, the Respondent called 4 of their siblings to testify for her. They all filled Witness Statements that were similar. They all accused the Claimant of being troublesome and confirmed that the Claimant informed them of her HIV status in a family meeting in 2021 where she talked about her HIV status and asked for their support which they did give her as a family.

Issues for Determination 9. The Tribunal having considered the pleadings filed, the evidence adduced by the parties and the witnesses, considers the following as the issues to be determined:-1. Whether there was unlawful disclosure of the Claimant’s HIV status to third parties by the Respondent?2. Whether the Claimant suffered stigmatization and/or discrimination as a result of the Respondent’s statements?3. Whether the Claimant is entitled to the reliefs sought?

Whether there was unlawful disclosure of the Claimants’ HIV status to third parties by the Respondent? 10. According to Black’s Law Dictionary, Disclosure is“To make known, a revelation or the uncovering of a thing that is kept hidden.”A person’s HIV status is confidential and should not be revealed to third parties without their consent as provided for under Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act reads:“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”

11. Disclosure of a person’s HIV status without their consent tantamount to violation of the right to privacy. In Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others[2016] eKLR, Justice Lenaola quoted with approval the Constitutional Court of South Africa in the case ofMistry 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 applicant’s 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. Further to the above quoted guiding principles, 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. InSM 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.

13. The Claimant in her testimony denied disclosing her status to her family in a family meeting. She testified that the Respondent sent her a private message alluding to her HIV status and therefore stigmatizing her and violating her right under Section 22 of the HIV and AIDS Prevention and Control Act and Article 31 of the Constitution.

14. From the evidence on record, it is not in dispute that the Respondent sent the Claimant a private message that read, “ …you have worked so hard to damage your house, your brothers’ homes, your mother’s maids, sasa ni mimi mapepo ya Ukimwi yamekutuma? Hutaniletea ujinga peleka kwa wakikuyu wako. Meza ARV ulale stupid girl...” the Claimant asserts that the message is unlawful disclosure of her HIV status to third parties and therefore a violation of the right to privacy as provided for under section 22 of the HIV and AIDS Prevention and Control Act, and Article 31 of the Constitution.

15. This Tribunal is clothed with jurisdiction to handle violations of the provisions of HIV and AIDS Prevention and Control Act and not Constitutional violations. We shall therefore refrain from looking at the question of whether the statement is a violation of the Claimant’s right to privacy under Article 31 of the Constitution.

16. Section 22(1) 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”The message was privately sent to the Claimant by the Respondent and not to the family WhatsApp group. It was therefore a private chat between the Claimant and the Respondent. The Respondent testified that she only meant to tell the Claimant to take her ARVs. This being a private chat between 2 people one of whom is being talked about does not meet the threshold of proof of disclosure of HIV status to third parties as envisioned under Section 22(1) of the HIV and AIDS Prevention and Control Act as the message was personally directed to the Claimant. In MM v MNM & another[2020] Eklr, this Tribunal held,According to Section 22(1) of HIV and AIDS Prevention and Control Act, 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.

17. This claim therefore fails.

Whether the Claimant suffered stigmatization and/or discrimination as a result of the Respondent’s statements? 18. The Claimant allege that the Respondent has been stigmatizing her due to her HIV status and sending her messages that are abusive and as a result she has suffered great emotional pain and distress 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.”

19. The Claimant failed to lead evidence to prove stigmatization or lead evidence to infer psychological torture and as such, this claim fails.

Whether the Claimant is entitled to the reliefs sought? 20. 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 her claim to the requisite standards.This cause is, therefore, dismissed. This being a family dispute, Parties are to bear their own costs.Orders accordingly.

DATED AND SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF FEBRUARY 2024DELIVERED VIRTUALLY IN THE PRESENCE OF:HON. CAROLYNE MBOKU - (CHAIRPERSON)HON. PROF. WALTER G. JAOKO (PROF.) - (MEMBER)HON. NELSON W. OSIEMO - (MEMBER)HON. BRIAN O. YOGO - (MEMBER)HON. DR. SOLOMON K. MUSANI - (DR.) (MEMBER)HON. JANE N. NGOIRI - (MEMBER)HON. DR. IRENE MUKUI (DR.) - (MEMBER)………………… Advocate for the Claimant.Margaret NasiekuJudith Chepngenoh…………… Court assistants