[2010] KEHC 155 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 81 OF 2008

J. N ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

=VERSUS=

DR. KIMAIYO

TOMEKO JOB BOIT AND

VERONIKA WANGARE ::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS

JUDGMENT

This is an appeal by J.N, the plaintiff in the original action, from the judgment and decree of the Senior Resident Magistrate (G.A. Mmasi) in Eldoret Chief Magistrate’s Court Civil Case Number 877 of 2007 (J. N –vrs- Dr. Kimaiyo, Tomeka, Job Boit and Veronika Wangare). The appellant made his claim for damages for breach of “doctor-patient confidentiality”.The appellant averred in his plaint that as a result of a disclosure made by the defendants of his HIV status, he had suffered public ridicule, spite, mental anguish and had been shunned by friends.

The respondents filed a joint statement of defence in which they substantially denied the appellant’s claim. They specifically, denied having disclosed the appellant’s HIV status.

At the trial, the appellant testified on his own behalf and called no witnesses. The substance of his testimony was that he had been attending a medical outfit called Ampath whereat his HIV status was known. The respondents worked for that outfit. In the course of his attendance, he learnt that the outfit could advance its clients’ loans for school fees. At the time, he had a daughter doing her fourth form and therefore applied for funding. He duly completed the relevant forms which he left with Ampath together with his clinic attendance card. Later he received back his medical card from his daughter who had been given the same by another child who obtained it from the 4th respondent – V. His daughter thereby came to know of his HIV status. The disclosure affected him mentally – hence the suit.

Only the 3rd respondent, Job Kibet Boit testified in his defence. He admitted working for Ampath of Moi Teaching and Referral Hospital at the material time where he had come to know the appellant. He further admitted obtaining a copy of the appellant’s treatment card and his application for sponsorship of his daughter. He also admitted returning all the documents including the treatment card through the 4th respondent. According to him, the 4th respondent was to deliver the documents in a sealed envelop. He denied making any disclosures about the appellant. He also exonerated the 1st and 2nd respondents.

On the basis of the testimony of the appellant and the 3rd respondent, the learned Senior Resident Magistrate found that the appellant had not proved his case on a balance of probabilities against the 1st 2nd and 3rd respondents. He however held that thecase against the 4th respondent had been proved and awarded to the appellant as against him Kshs 80,000/= being general damages for disclosing the appellant’s HIV status.

The appellant was not satisfied and has appealed to this court against the said judgment on seven (7) grounds, the substance of which is that the learned Senior Resident Magistrate erred in dismissing the case against the 1st, 2nd and 3rd respondents. In his view, the 1st, 2nd and 3rd respondents were guilty of actual, constructive and or implied disclosure of the appellant’s HIV status.

This is a first appeal. The Court is therefore mandated to reconsider the evidence which was adduced before the Lower Court and make its own evaluation and draw its own conclusions. In doing so, the court should bear in mind that it has not had the advantage of the trial court of seeing and hearing the witnesses testify. The court should therefore be slow to disturb findings of fact of the trial court. (See Peter –vrs Sunday, Post Limited [1958] EA 424). I must therefore examine with care whether the findings of fact were not based on evidence adduced before the learned trial magistrate or whether there was a misapprehension of the evidence or that the learned Senior Resident Magistrate acted on wrong principles in arriving at those findings of fact.

The appellant throughout his testimony did not state the role the 1st, 2nd and 3rd respondents played in disclosing his HIV status. He pleaded, in his plaint, that all the respondents had, on or about the 14th September, 2007, released his confidential medical information/report as regards his HIV status. At the trial however, he stated as follows:-

“On 14/09/2007, one V gave the card to anotherchild to take the card to my daughter who was a fourth former. I wrote a letter demanding for an apology. One Tomeka said he would not apologies, I filed this suit in court”

On that evidence, the learned Senior Resident Magistrate concluded that the appellant had not shown how the 1st, 2nd and 3rd respondents could be blamed. In her own words:-

“ The plaintiff had to demonstrate how each of the defendants disclosed his HIV status. In respect of the 1st and 2nd defendants from the evidence of the plaintiff, he did not on a balance of probability connect them with the disclosure of his HIV status ……. In respect of the 3rd defendant, he testified and averred that he did not authorize the disclosure of the plaintiff’s status. He averred that the documents relating to the plaintiff’s application for a loan and clinic attendance were given to the 4th defendant, with express instructions to forward them to the plaintiff. She was not allowed to give to a 3rd party ……Thence the court has found, that in respect of the 1st, 2nd and 3rd defendants, the case against them has not been proved on a balance of probabilities.”

After my independent evaluation of the evidence which was placed before the learned Senior Resident Magistrate, I do not think she can be faulted. The respondents were sued in their individual capacities and liability could only attach if the appellant had evidence against them individually. He did not. He only blamed the 4th respondent and led evidence against her. There was no material placed before the learned Senior Resident Magistrate to find that the 1st, 2nd and 3rd respondents had constructively or by implication disclosed the appellant’s HIV status.

In the end, I find no basis to differ with the learned Senior Resident Magistrate. This appeal fails and is according dismissed.

In the special circumstances of this appeal, and the appellant’s admitted circumstances, I order that each party bears his/her own costs of the appeal.

Orders accordingly.

DATED AND DELIVERED AT ELDORET THIS 18TH DAY OF JANUARY 2011.

…………………………………………………..

F.AZANGALALA

JUDGE

Read in the presence of:-

John Njuguna (the appellant in person) and

Mr. Mwinamo Advocate for the respondent.

..............................................................

F.AZANGALALA

JUDGE