[2022] KEHAT 104 (KLR)

REPUBLIC OF KENYA

IN THE HIV AND AIDS TRIBUNAL

AT NAIROBI

H.A.T CAUSE NO. 07 OF 2021

G. O..................................................................................................................CLAIMANT

VERSUS

NORBERT ODHIAMBO..................................................................1STRESPONDENT

ICEA LION LIFE ASSURANCE COMPANY LIMITED............2NDRESPONDENT

JUDGEMENT

A: Introduction

1. By Statement of Claim dated 3rd September 2021, the Claimant instituted these proceedings against the Respondents, jointly and severally, for:

(i) A declaration that the Respondents’ failure to renew the Claimant’s Education Policy Cover No. 029/CEA/081222 on account of her refusal to undergo HIV-AIDS test amounts to compulsory testing hence violation of section 13 (2) of the HIV and AIDS Prevention and Control Act;

(ii) An order compelling the 2nd Respondent to reinstate the Claimant’s educational policy cover no 029/CEA/081222 immediately and without subjecting the Claimant to an HIV-AIDS Test;

(iii) Compensation in the nature of general damages for violation of the Claimant’s rights under section 13 (2) of the HIV and AIDS Prevention and Control Ac;

(iv) General damages for subjecting the Claimant to psychological, mental pain, emotional torture and anguish;

(v) Compensation in the nature of general damages for violation of the Claimant’s statutory rights under section 35 (1) of the HIV and AIDS Prevention and Control Act;

(vi) Costs of the suit;

(vii) Interests; and

(viii) Any other or further relief that this Honorable Tribunal may deem fit and just to grant.

2. The Claimant also filed a Witness Statement and List of Documents, both dated 3/05/2021.

3. In response thereto, the Respondents filed a Statement of Response dated 11/10/2021. The gist of their Response is that the Claimant was not compelled, coerced or induced to take the medical tests, including the HIV test and that the requirement to take the medical tests was for material disclosure which is a principle that governs all insurance policies. The Respondents also filed a Bundle of Documents and a Witness Statement by the 1st Respondent.

B: The Claimant’s Case

4. On 5/11/2021, the Claimant testified before the Tribunal that on or about 14/07/ 2014, the Claimant took out an Education Insurance Police under insurance policy number 029/CEA/081222 from the 2nd Respondent for her brother at a monthly premium of Kshs 2,000/-. The Claimant continued paying the monthly premiums as laid out in the policy terms until sometime in 2017 when she defaulted because of loss of employment.

5. The Claimant avers that sometime in 2018, she contacted the 1st Respondent with a view to re-activating the said education policy. The 1st Respondent then informed the Claimant that she had two options to pursue for the policy to be revived. The Claimant had either the option of paying for the arrears or undergoing a medical examination. It was the testimony of the Claimant that she made it clear to the 1st Respondent that she did not have a problem with undergoing the HIV test. However, according to the Claimant, she felt uncomfortable for the reason that she did not see the connection between the HIV status as well as the policy.

6. The Claimant further testified that she had a physical meeting with the 1st Respondent in 2018 at a Casino in town where she requested the 1st Respondent to come and enlighten the Claimant on the kind of test that she was to undergo. According to the Claimant, she did not meet the 1st Respondent because she was uncomfortable. According to the Claimant, she did text the 1st Respondent on 25/06/2021 requesting on the medical tests that she was to undergo. The 1st Respondent responded by sending the Claimant a medical form and referred the Claimant to the City Health Hospital for the said medical tests.

7. It is the Claimant’s contention that the Respondents compelled her to undergo an HIV test as a pre-condition to reinstating the education policy, thus violating her statutory rights and denying her an education insurance cover for failure to undergo the test. In her Statement of Claim, the Claimant has enumerated the following particulars of illegal, unlawful and malicious actions by the Respondents:

(i) Subjecting the Claimant to compulsory HIV and AIDS test for purposes of an insurance thus violating provisions of Sections 13 (2), 14 (1)(a) and 35 (1) of the HIV and AIDS Prevention and Control Act (hereinafter ‘HAPCA’);

(ii) Compelling the Claimant to undergo an HIV and AIDS test as a pre-condition to reinstating her Educational Policy Cover with the 2nd Respondent;

(iii) Acting maliciously and without justification in the circumstance;

(iv) Treating the Claimant unfairly and in a discriminatory manner;

(v) Subjecting the Claimant to untold mental pain and emotional torture;

(vi) Declining to renew the Claimant’s educational policy on the basis of the Claimant’s failure to undertake an HIV-AIDS test;

(vii) Forcing the Claimant to undergo a compulsory HIV-AIDS test contrary to her wishes;

(viii) Humiliating the Claimant in her quest to reinstate the Education Insurance Policy;

(ix) Imposing unreasonable demands by requiring the Claimant to undergo an HIV-AIDS test contrary to her statutory rights guaranteed by the provisions of HAPCA

8. The Claimant produced the Educational Insurance Policy Document, printouts of the various email correspondence between herself and the 1st Respondent, the Medical Examination Request Form and printouts of WhatsApp chats between herself and the 1st Respondent in support of her case.

9. On cross examination by Counsel for the Respondents, the Claimant testified that she did have an insurance policy with the 2nd Respondent which she stopped paying for sometime in 2017. The Claimant confirmed that the first time the 1st Respondent reached out to her with a view of having the policy reinstated was around May 2018. The Claimant confirmed that she had not paid for the premiums for over 3 years.

10. According to the Claimant, the 1st Respondent informed her that she was to pay Kshs. 4,000/= as well as undergo an HIV test. In her view, she did not have any other available option other than to undergo the HIV test. It was the Claimant’s testimony that she had no problem undergoing an HIV test.

C: The Respondents’ Case

11. The 1st Respondent testified on his behalf and that of the 2nd Respondent. He adopted his witness statement dated 11/10/2021. He confirmed being an employee of the 2nd Respondent and that he first met the Claimant sometime in 2014. The 1st Respondent assisted the Claimant to sign up for an education policy on behalf of his brother with the 2nd Respondent in which the Claimant was paying Kshs 2000/- in monthly premiums, until 2017 when the Claimant defaulted. At the time of defaulting, the Claimant had paid for the premium for a period of 16 months. According to the 1st Respondent, when one does not pay for the premiums, the policy becomes inactive.

12. The 1st Respondent confirmed that he reached out to the Claimant to try and re-activate the account. It was the 1st Respondent’s testimony that the Claimant inquired about the options available to her to enable her activate the policy. The 1st Respondent’s advice was to pay the arrears, which the Claimant did not. The Claimant sought another alternative, at which point the 1st Respondent advised her about the option of taking a medical examination, which was optional. It was the 1st Respondent’s testimony that he did not compel the Claimant to take an HIV test and only presented this option since the Claimant had indicated that she was not able to clear the arrears. When the 1st Respondent suggested the medical tests, the Claimant went silent and never responded.

13. On cross examination, the 1st Respondent confirmed that the initial policy did not include an HIV test, nor did it have a requirement for any medical examination. At Clause 15 of the Policy Application Form, the Claimant ticked NO when asked if she had been advised to take an HIV test. The 1st Respondent further testified that when he sent the medical form to the Claimant, he indicated the particular tests that the Claimant was required to undertake. The HIV test was optional, not mandatory. The 1st Respondent explained that the HIV test was optional because there are different types of policies based on a client’s needs, and the company also needs to assess the risk.

14. The 1st Respondent produced the Proposal for Life Assurance and the Claimant’s Educational Insurance Policy Document as evidence herein.

D: Issues for Determination

15. Having read the pleadings, the written submissions filed by the parties and heard the testimonies herein, we have identified the following as the issues for determination by this Tribunal:

(i) Whether the Claimant was forced to undergo an HIV test before reinstating her lapsed policy amounted to compelling the Claimant to undergo a compulsory HIV test, thus violating the provisions of HAPCA;

(ii) Whether the Claimant suffered any damage as a result of the Respondent’s actions; and,

(iii) Whether the Claimant is entitled to the reliefs sought.

E: Legal Analysis

16. We proceed to analyze the issues as below:-

(i) Whether the Claimant was forced to undergo and HIV test before reinstating her lapsed policy amounted to compelling the Claimant to undergo a compulsory HIV test, thus violating the provisions of HAPCA

17. The Claimant testified that when she inquired from the 1st Respondent about how to reactivate her education policy, the 1st Respondent told her that she could pay Kshs 4,000/-, have an HIV test conducted and then continue paying monthly premiums. The Claimant also testified that she was offered an option of paying the premium arrears. On his part, the 1st Respondent testified that he informed the Claimant to pay the arrears and have her policy reinstated which she did not for the reason that she was unable to pay the same. When the Claimant was unable to pay the premium arrears, the 1st Respondent presented to the Claimant another option, which involved an HIV test. This option was not mandatory.

18. The evidence produced by the Respondents in the form of the Proposal for Life Assurance includes a form requiring the Claimant to declare some medical information. At Clause 15 thereof there is a question, “Have you ever had or been advised to have a blood test for AIDS or AIDS related condition or immunological disorder?”, to which the Claimant ticked NO. It was the testimony of both the Claimant and 1st Respondent that the Claimant was not required to undergo any medical examination by a doctor nor take an HIV test when she first signed up for the education policy. The 1st Respondent did inform the Tribunal that in the instant case, the medical test was a requirement which was optional, the other option being the Claimant paying the arrears.

19. In support of her case that she was forced to undergo an HIV test, the Claimant has produced printouts of the chats and messages between herself and the 1st Respondent.

At page 3 (B) of the Claimant’s exhibits is a printout in which the 1st Respondent asked,

“Uliamua nikusaidie over your policy”. The Claimant then responded that she has no money and inquired about her best option. At that point, the 1st Respondent informed her that she could pay Kshs 4,000/- and have the arrears waived. The Claimant then asked, “So how will it look like”, to which the 1st Respondent replied, “Maturity will be pushed ahead n you’ll do medical HIV n MER”. The Claimant retorted, “ Your policy are stigmatizing, I have no problem with taking the HIV test but does it mean that people living with HIV can’t get your cover”.

20. During examination in chief, cross examination as well as the messages reproduced above, the Claimant was categorical that she had no problem undergoing the HIV test. To that end therefore, the question that begs to be asked before this Tribunal is that; what is the Claimant’s case? The Claimant in her Statement of Claim has set out the issue in dispute as one of being compelled by the Respondents to undergo a compulsory HIV & AIDS test as a precondition for reinstating her educational policy. As stated above, the Claimant during examination in chief as well as cross examination was categorical that she did not have any problem taking the HIV test. With this admission by the Claimant, where does the issue of being forced to undergo HIV test comes in. It is the finding of this Tribunal that in stating on one part that she did not have a problem undergoing a HIV test and again coming to say that she was forced to undergo a compulsory test amounts to approbation and re-probation. Approbation and re-probation is not permissible in law as was held by the Court of Appeal in the case of Behan & Okero Advocates –vs- National Bank of Kenya [2007] eKLR in the following terms:-

Having been satisfied that the applicant‘s counsel approved the order he is now complaining about, we too feel, like the Court of Appeal for Eastern Africa felt in the Sonko & Another vs. Patel & Another (1955) 22 EACA 23, that the applicant cannot be allowed to approbate and reprobate. That being our view of the matter, and as no prejudice to the applicant has been alleged, we see no reason to take the draconian action of striking out Civil Appeal No. 158 of 2006.

21. That is the same case here. The Claimant having told the 1st Respondent as well as testifying before the Tribunal that she had no problem undergoing the HIV test cannot now turn back and claim that she was forced to undergo the said HIV test.

22. Section 13(2) of HAPCA provides as follows:

Without prejudice to the generality of subsection (1), no person shall compel another to undergo an HIV test as a precondition to, or for the continued enjoyment of –

(a) Employment;

(b) Marriage;

(c) Admission into any educational institution;

(d) Entry into or travel out of the country; or

(e) Provision of healthcare, insurance cover or any other service

23. Compel is defined at section 2 as follows:

‘compel’ in relation to HIV testing, refers to an HIV test imposed upon a person characterized by the lack of consent, use of physical force, intimidation or any other form of compulsion.

24. Further, section 35 (1) provides as follows:

Subject to this Act, no person shall be compelled to undergo a HIV test or to disclose his HIV status for the purpose only of gaining access to any credit or loan services, medical, accident or life insurance or the extension or continuation of any such services.

25. From the facts of this case, the Claimant does not get reprieve from the provisions of Section 13(2) as well as Section 35(1) of HAPCA for the reason that the Claimant was never compelled to take an HIV test. When she was presented with the option, she categorical stated that she had no problem with undergoing the test, a position she repeated before the Tribunal.

26. Similarly, the Claimant was presented with an option of paying the arrears before the policy could be reinstated. The Claimant did not pursue this option for the reason that she did not have the money. One of the prayers that the Claimant is seeking from the Tribunal is an order that:-

An order compelling the 2ndRespondent to reinstate the Claimant’s educational policy cover no 029/CEA/081222 immediately and without subjecting the Claimant to an HIV-AIDS Test.

27. Respectfully, we cannot order such prayer for the reason that an insurance policy is a contract between parties whose terms and conditions are agreed by the parties themselves and it is not for the Tribunal to re-write nor direct parties on such contracts. From the facts of this case, the Claimant has been in arrears from 2017. In directing the 2nd Respondent to reinstate the educational policy without the Claimant undergoing the medical test means that the policy would be reinstated without even the arrears being paid. This would mean that we would be overstretching our mandate to interfere with contractual obligations of parties. Similarly, in such scenarios, we have to weigh both the rights of the Claimant as well as the 2nd Respondent in that the Claimant has to be protected against her rights being infringed whereas the 2nd Respondent has to get its monies from the services that it is offering the Claimant, albeit in a legal way.

28. The need to weigh the options of both parties in as far as Section 35 of HAPCA is concerned is an issue that this Tribunal has dealt with in the case of E.M.A vs- World Neighbors and Resolution Health Insurance Ltd [2018] unreported where the Tribunal held thus:

“Section 35 (1) of HAPCA boldly declares that “no person shall be COMPELLED to undergo an HIV test or to disclose his HIV status for purposes of gaining access, inter alia, to medical insurance.” What this means (even without looking at subsections 2,, 3, 4, 5 and 6 of section 35 aforesaid) is that persons living with HIV should have reasonable access to a medical insurance policy which will not require them to be tested for HIV or to disclose their HIV status to anybody, whether the medical insurer himself or to the treatment facilities.

Section 35 (2) of HAPCA then takes case of the commercial interests of the medical insurance service provider. It enjoins the medical insurance provider to devise a reasonable limit of insurance policies which can serve EVERYONE irrespective of his/her HIV status The provider may devise two policies: One that does NOT require HIV testing or disclosure and the other which requires HIV testing and disclosure,. Both policies are accessible to EVERYONE; HIV persons as well as HIV negative persons equally, without any discrimination. Section 35 (2) if HAPCA, therefore, guarantees the HIV infected person’s right to access medical insurance as well as his right to privacy and confidentiality without sacrificing and/or jeopardizing the economic rights of the medical insurance provider who is, therefore, enabled to protect himself against the risk of loss on account of HIV infection, without limiting or constraining the HIV infected person’s rights to privacy and confidentiality.[ Emphasis ours]

29. That is the same case here. The Claimant cannot seek to circumvent her contractual obligations by using the Tribunal as in doing so, the 2nd Respondent would be jeopardized in that it would be sacrificing its economic rights.

(ii) Whether the Claimant suffered any damage as a result of the Respondent’s actions

30. The Claimant has pleaded at paragraph 13 of the Statement of Claim that as a result of the Respondents actions she has suffered emotional and psychological distress and as a result, the Claimant pleads for an award of general damages.

31. The Claimant in her testimony testified that when she reached out to the 1st Respondent for the reinstatement of the policy, the 1st Respondent gave her two options. To either pay the arrears or undergo a medical test. The Claimant further pleaded that the did not have the money to pay for the arrears. In as far as going for the medical test is concerned, the Claimant sent a message to the 1st Respondent as well as testified before the Tribunal that she did not have a problem of taking a HIV test. Despite the fact that the Claimant informed the 1st Respondent that she did not have a problem with undergoing the HIV test, she never went for the same and neither did she pay for the arrears. In the circumstances, we find it difficult to agree with the Claimant that she has suffered any damage as a result of the non-failure by the Respondents to reinstate her policy. This is because the reinstatement of the policy necessitated some conditions to be fulfilled by the Claimant. The Claimant did not discharge her burden and as a result, the Respondents cannot be faulted.

32. From the foregoing therefore, we hold that the Claimant has not proved its case on a balance of probability.

(iii) Whether the Claimant is entitled to the reliefs sought

33. Having found that the Claimant has not proved her case on a balance of probability, we hold that the Claimant is not entitled to the reliefs sought.

34. As regards costs, costs follow the event. We hereby dismissed with costs to the Respondents.

It is so Ordered

Dated at Nairobi this 14th day of January 2022

Delivered at Nairobi this _____14th__________ day of _____January __ 2022

Delivered virtually in the presence of:

Helene Namisi

(Chairperson)

………DISSENTING…….

Melissa Ng’ania

………………………….......

Tusmo Jama

………………………………..

Dr. Maryanne Ndonga

………………………............

Justus T. Somoire

……………………………

Dorothy Kimengech

………………………………..