[2024] KEHAT 171 (KLR)

JAO v CM (Tribunal Case 026 of 2022) [2024] KEHAT 171 (KLR) (14 February 2024) (Judgment)

Neutral citation: [2024] KEHAT 171 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 026 of 2022

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

February 14, 2024

Between

JAO

Claimant

and

CM

Respondent

Judgment

1. On 17th August 2023, the Claimant filed before this Tribunal a statement of claim seeking the following orders from the Respondent;i.A permanent injunction restraining the Respondent from sharing, discussing, announcing, commenting on or disclosing the HIV status of the claimant or insulting or abusing the Claimant;ii.A declaration that the Respondent’s actions constituted offences under the HIV and AIDS Prevention and Control Act;iii.General damages for causing the Claimant immense emotional distress and psychological anguish;iv.General damages in compensation for breach of the Claimant’s privacy and confidentiality;v.Exemplary damages for harassing, stigmatizing and degrading the Claimant;vi.Costs of the suit;vii.Interest on the above at court rates until payment in full

2. The claim was served on the Respondent. The Respondent filed his memorandum of response on the 31st October, 2023 where he denied the allegations as contained in the statement of claim only stating that the dispute is propagated by a land tussle and boundary dispute between the Claimant’s family and himself.

3. This matter was set down for hearing during the Tribunal’s service week where the Claimant proceeded and called one witness. However, the Respondent nor his advocate did not attend the hearing of the matter despite proper service having been effected on him.

4. The Claimant adopted his witness statement dated 10th November, 2023 as his evidence in chief. He testified that the Respondent on the morning of 10th November, 2021 came to his parcel of land and started cutting down the trees thereon. That when he confronted the Respondent on his action, the Respondent retorted back by telling him that he was paralyzed due to his HIV status. The Respondent further told him to stop misappropriating funds meant for people living with HIV.

5. The Claimant testified that the Respondent further abused him claiming that he secured his employment based only on his HIV status and that as a result, he suffered immense humiliation, emotional distress and psychological pain as a result of the Respondent action. He asked this Tribunal to find that the Respondent violated his right to privacy by disclosing his HIV status without consent.

6. The Claimant called his sister Sarah as his witness in this case. Sarah adopted her witness statement dated 13th November, 2023 as her evidence in chief and testified that she heard the Respondent abuse the claimant as pleaded. She confirmed that the Claimant has suffered great humiliation and mental anguish as a result of the unlawful disclosure of his HIV status as everyone now talks about his HIV status.

7. In his filed written submission, the Claimant has urged the Tribunal on the authority of the following decisions to find that the Respondent had disclosed his HIV status without his consent. He relied on GGOO v MOA [2021] eKLR and SNW v Asha Gulam [2019] eKLR on the court’s interpretation of section 22 of the HIV & AIDS Prevention and Control Act on disclosure of one’s HIV status without informed consent.

8. The Claimant also relied on the Tribunal’s decision in BAO v China Henan International Co-operation Group Co. Ltd [2021] eKLR and RAO v Mediheal Group of Hospitals & 2 others [2021] eKLR on the awards of general damages.

9. We have considered the pleadings filed before us, the evidence on record, the testimony of the witnesses that appeared before us, the filed written submission and the cited authorities in support of the Claimant’s case, and have identified the following as issues for determination in this matter:i.Whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without the Claimant’s consent;ii.Whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination; andiii.Whether the Claimant is entitled to the reliefs sought

10. The term Disclosure is not defined in the HIV and AIDS Prevention and Control Act. However, the same is defined in the Black’s Law Dictionary as follows:“To make known, a revelation or the uncovering of a thing that is kept hidden.”

11. To contextualize this term Section 22 (1)(a) 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”HIV test results or related assessment are therefore private and should not be released to third parties without the written consent of the person. Failure to respect this privacy is a violation of the person’s right to privacy.

12. 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.

13. It was the holding of this Tribunal in the case of GGOO v MOA [2021] eKLR that;“34. On the definition of disclosure, the Respondent submitted that the term means ‘to make known, a revelation or the uncovering of a thing that is kept hidden’. He contended that the evidence tendered by the Claimant was an alleged conversation between the Claimant and the Respondent, which entailed innuendo of the Claimant’s status. According to the Respondent, the question, therefore, is whether by informing the Claimant of his HIV status, the Respondent’s conduct amounted to disclosure.35. On the one hand, we concur with the Respondent’s submissions with regard to definition of disclosure. On the other hand, we disagree that the alleged conversation was between the Claimant and Respondent only, and, therefore, cannot be construed to be disclosure. The evidence before the Tribunal clearly shows that there were at least 2 messages posted by the Respondent in a group, which alluded to the Claimant’s status, whether real of perceived. Without a doubt, the WhatsApp group did not compromise of the Claimant and the Respondent only, it had other members. In our view, this evidence tendered herein by the Claimant, which has not been countered by the Respondent, clearly indicates that there was publication of the Claimant’s status, real or perceived, to a group which group contained a large number of people.37. Borrowing the words of the Learned Judge, the provisions of section 2 of HAPCA protect against unnecessary and unwarranted revelation of one’s status, which is a private affair. HIV status is a private affair whose disclosure can and will cause mental distress and injury to a person, hence the need to keep this information confidential. Having said this, it is clear that the Respondent violated the provisions of section 22 of HAPCA by unlawfully disclosing the Claimant’s status, real or perceived, to third parties without the Claimant’s consent.”

14. Going by the evidence tendered before the Tribunal as highlighted herein above, and also in keeping with this Tribunal’s holdings in previous similar matters, it is our finding that the Respondent’s actions amounted to a violation of the provisions of section 22 of HAPCA, and that he unlawfully and without consent of the Claimant, disclosed the Claimant’s status, real or perceived, to third parties, as has been collaborated in this matter by Sarah.

15. 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.

16. Having found that there was unlawful disclosure, the question then becomes, whether the Claimant suffered stigmatization and/or discrimination as a result as pleaded.

17. The Claimant testified that as a result of the disclosure, he has lost friends and people no longer visit his home or associate with him, while others speak behind his back. On the other hand, his witness, Sarah, testified that the disclosure has affected the Claimant in that everyone talks about his status.

18. This Tribunal has previously defined HIV stigma as referring to irrational or negative attitudes, behavior and judgement towards people living with or at risk of HIV. Taking into consideration the testimony of the Claimant and his witness, the evidence tendered in support of his claim, and the unfeasibility of quantifying stigma, we do find that the Claimant herein suffered emotional distress, stigma and psychological anguish.

19. Having answered the first two issues to the affirmative, what is left for determination is the quantum of damages payable to the Claimant for the Respondent having unlawfully disclosed the Claimant’s HIV status to third parties and damages payable for the Respondent having caused the Claimant to suffer stigmatization and/or discrimination.

20. The Claimant placed reliance in SNW v Asha Gulam [2019] eKLR where the Tribunal held that disclosure of the Claimant’s HIV status by the Respondent was wrongful and unlawful and amounts to violation of provisions of section 22 of the Act and awarded the Claimant the sum of Kshs. 250,000/= as general damages.

21. On the first issue as to whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without the Claimant’s consent, we find that the Respondent’s actions amounted to a breach of the provisions of section 22 of HAPCA and consequently award damages of Kshs.500,000/= under this ambit of the claim, as we have considered the passage of time and the changing economic environment since Asha Gulam case was decided.

22. On the second issue as to whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination, we find to the affirmative and thus make an award of damages of Kshs.150,000/= under this ambit of the claim.

23. The Claimant is hereby awarded costs of this claim.

24. The Claimant is hereby awarded interest on Judgement items 21), and 22) above at court rates from the date of this Judgement until payment in full.

DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF FEBRUARY, 2024. DELIVERED AT NAIROBI THIS 14TH DAY OF FEBRUARY, 2024. DELIVERED VIRTUALLY IN THE PRESENCE OF;.................... for the Claimant..................... for the RespondentHON. CAROLYNE MBOKU (CHAIRPERSON)HON. B. O. YOGO (MEMBER)HON. N. W. OSIEMO (MEMBER)HON. W. G. JAOKO (PROF.) (MEMBER)HON. J. N. NGOIRI (MEMBER)HON. S. K. MUSANI (DR) (MEMBER)HON. I. MUKUI (DR) MEMBERYasmin Mohammed : Court Assistant.