[2024] KEHAT 582 (KLR)

IWM v WHC & 2 others (Cause 042 of 2022) [2024] KEHAT 582 (KLR) (17 May 2024) (Judgment)

Neutral citation: [2024] KEHAT 582 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 042 of 2022

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

May 17, 2024

Between

IWM

Claimant

and

WHC

1st Respondent

CECH NC

2nd Respondent

CA N C

3rd Respondent

Judgment

1. The Claimant herein moved the Tribunal through the statement of Claim dated 24th August 2023 seeking the following reliefs from the Respondents:a.A declaration that the Respondent infringed the rights of the Claimant under Section 31 the HIV and AIDS Prevention and Control Act;b.Damages for discrimination by the 1st and 2nd Respondentsc.Damages for impairment of dignity, physical and psychological sufferingd.Costs of the suit.

2. The 1st Respondent is a health facility that allegedly denied the Claimant admission to the staff whatsapp group, facility staff meetings and access to stationery due to his HIV status. The 2nd Respondent is responsible for public health and it’s management and is sued in that capacity while the 3rd Respondent is sued as the legal advisor to the County Government where the 1st Respondent is situated.

Claimant’s Case 3. The Claimant is a peer educator employed by USAID and attached to the 1st Respondent’s facility where he supports HIV service delivery and has discharged this duty for 6 years.

4. It is the Claimant’s case that his he is a key staff member at the 1st Respondent’s facility but the facility has discriminated against him by denying him access to office stationery that are donated to the facility by USAID, facility staff meetings and the staff whatsapp group which acts hinder the discharge of his duties as he missed important information that was discussed in the whatsapp groups and staff meetings.

5. It was his testimony that the 1st Respondent’s actions are a breach of his rights and caused him to suffer physically, emotionally and psychologically and asked the Tribunal to find the Respondents responsible for discriminating and stigmatizing him based on his health status.

6. On cross examination, the Claimant confirmed that he was employed by USAID CHAK Jamii Tekelezi Project in conjunction with the County Government. He was therefore a staff member of the 1st Respondent due to the program. He further testified that he anonymously complained that he did not get stationery through the suggestion box.

The Respondent’s Case 7. The 1st, 2nd and 3rd Respondents filed a joint statement of Response dated 6th October 2024 and called MCK the in charge of the 1st Respondent’s facility as their only witness. Her witness statement dated 17th October 2023 and list of documents dated 6th October 2023 were all admitted in evidence.

8. The Respondents denied the allegation of discrimination and stigmatization and testified that the Claimant was an employee of USAID CHAK Jamii Tekelezi project attached to the 1st Respondent’s facility as a peer educator whose main duty is to educate people living with HIV on the importance of taking ARVs and assist in defaulter tracing of People living with HIV.

9. RW-1 the in-charge of the 1st Respondent facility testified that the Claimant is not a staff member of the facility and is only allowed to attend non-committee meetings based on the agenda being discussed as the Claimant is a community volunteer and not an employee of the 1st Respondent’s facility. The whatsapp group is only meant for medics and senior management staff. They discuss sensitive patient’s information that should not be shared with the public.

10. She further admitted that USAID provides stationery to make the HIV programme a success. However, the Claimant works under the direct supervison of the program office of the USAID CHAK Jamii Tekelezi project who is in charge of stationery. She testified that the Claimant has never raised the issue of stationery to the project officer or sub-county HIV and STI Coordinator who is the Count’s contact person.

11. On cross examination, she testified that the information shared in the whatapp group is sensitive and confidential including diagnosis and treatment of all patients. Where there is need to trace a default patient then the information is cascaded down to the Claimant.

Issues For Determination 12. This Tribunal having read through the pleadings filed, having heard the evidence of the Claimant and having read through the submissions filed by the parties, and the cited authorities, has identified the following as issues for determination in this matter:1. Whether the Claimant was discriminated upon on the basis of his HIV status;2. Whether the Claimant suffered physically, emotionally and psychologically as a result of the delay and /or denial of clinical services.3. Whether the Claimant is entitled to the reliefs sought.4. Whether the Claimant was discriminated upon on the basis of his HIV status

13. Discrimination is defined in the Black’s Law Dictionary as: “the unjust or prejudicial treatment of different categories of people, especially on the grounds of ethnicity, age, health status, sex, or disability..” Discrimination is outlawed under various sections of the HIV and AIDS Prevention and Control Act including section 31 which provides:“..No person shall bea.denied access to any employment for which he is qualified for orb.transferred, denied promotion or have his employment terminated on the grounds only of his actual, perceived or suspected HIV status.

14. The effects of HIV stigma and discrimination are far-fetched. In the report, Confronting Discrimination: Overcoming HIV-related Stigma and Discrimination in Health-care settings and Beyond, launched by the Executive Director of UNAIDS in October 2017, it was noted that people living with HIV who experience high levels of HIV-related stigma are more than twice as likely to delay enrolment into care than people who do not perceive HIV-related stigma. The report states thus:“When people living with, or at risk of, HIV are discriminated against in health-care settings, they go underground. This seriously undermines our ability to reach people with HIV testing, treatment and prevention services. Stigma and discrimination is an affront to human rights and puts the lives of people living with HIV and key populations in danger.”

15. For one to prove discrimination at the work place on the basis of one’s HIV status, one must provea.That he was denied access to any employment for which he is qualified for orc.He was transferred, denied promotion or had his employment terminated on the grounds only of his actual, perceived or suspected HIV status.

16. To prove his case, the Claimant testified that he is a key staff member at the 1st Respondent’s facility but the facility has discriminated against him by denying him access to office stationery that are donated to the facility by USAID, facility staff meetings and the staff whatsapp group which acts hinder the discharge of his duties as he missed important information that was discussed in the whatsapp groups and staff meetings.

17. The issue of the Claimant being discriminated due to his perceived HIV status was never adduced either in the pleadings or during hearing. The same only appears under the prayers sought and the submissions filed by his Counsel.

18. The Respondent’s in denying the claim testified that the claimant was not it’s employee but a community volunteer through USAID and was therefore not entitled to be in the management whatsapp group created for serious discussions including diagnosis and treatment of the patients at the 1st Respondent’s facility. We agree with the Respondent’s submissions that not everyone who has duties in the facility ought to be included in the facility’s whatsapp group. This Tribunal takes judicial notice of the confidentiality that exists between doctors and the patients and the need to protect this confidentiality. We also know that medics are allowed to confer and consult each other on diagnosis and treatment of their patients without breaching this confidentiality. It therefore goes without saying that outsiders cannot be trusted with this information.

19. The Tribunal finds that the Claimant has not met the threshold captioned above for the proof of discrimination on his HIV status as provided for under sections 31 of the HIV and AIDS Prevention and Control Act. This claim therefore fails.Whether the Claimant suffered physically, emotionally and psychologically as a result of the delay and /or denial of clinical services?

20. The Claimant claims that the actions of the 1st Respondents led to his physical, emotional and psychological suffering but has not led evidence to proove this fact. 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.”

21. In any event, having found that the 1st Respondent did not discriminate against the Claimant based on his HIV status, this limb fails as there’s no nexus between the alleged discrimination and physical, emotional and physiological suffering of the Claimant.

Whether the Claimant is entitled to the reliefs sought. 22. 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 his claim to the requisite standards. This cause is therefore, dismissed. Parties to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MAY, 2024. HON. CAROLYNE MBOKU - (CHAIRPERSON)HON. BRIAN. O. YOGO - (MEMBER)HON. NELSON . W. OSIEMO - (MEMBER)HON. WALTER . G. JAOKO (PROF.) - (MEMBER)HON. JANE. N. NGOIRI - (MEMBER)HON. SOLOMON . K. MUSANI - (MEMBER)Delivered virtually in the presence of:………………………………………………for the claimant…………………………………………………for the respondent………………………………… court assistant