[2024] KEHAT 560 (KLR)

JM (Suing On Behalf of A Minor MS) v Noor & another (Cause 028 of 2022) [2024] KEHAT 560 (KLR) (3 May 2024) (Judgment)

Neutral citation: [2024] KEHAT 560 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 028 of 2022

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

May 3, 2024

Between

JM (Suing On Behalf of A Minor MS)

Claimant

and

Mohamed Noor

1st Respondent

Board of Governors Najah Primary School

2nd Respondent

Judgment

A. INTRODUCTION 1. Vide a Statement of Claim dated 12th September 2023 and filed on 13th September 2023, the Claimant herein moved to the Tribunal seeking the following reliefs from the Respondent herein:i.A declaration that the Respondent infringed the rights of the Claimant under the HIV and AIDS Prevention and Control Act;ii.Damages for the impairment of dignity, emotional, physical and psychological suffering.iii.Costs of the suit

2. The Claimant filed enlisting herself as the only witness to testify on behalf of her minor child. The Claimant further filed only one document which was a certified copy of MPESA statement.

B. CLAIMANT’S CASE 3. The Claimant adopted her witness statement filed on 12th September 2023 as her evidence in chief before the Tribunal when she appeared for hearing on 7th December 2023.

4. It is the Claimant’s testimony that she enrolled her son for standard one (1) at the 2nd Respondent’s school sometimes in the year 2019. She avers that the school was a boarding school and therefore she devised ways to get the minor to take his ARV’s without disclosing his status to the school and other learners.

5. She in addition, tasked the minor’s elder brother, who was also in the same school, to ensure that his younger brother took his medication without fail and at the appointed time.

6. It was the Claimant’s case that as time went by, it was becoming challenging to administer the medication to the minor which necessitated the Claimant to engage with staff at Timau Clinic, their designated clinic, to accompany her to the school and inform the school administration of the challenge.

7. She avers that upon disclosing the minor’s status to the school management, the school began discriminating against the minor to the point that the 1st Respondent demanded that the Claimant transfers the minor away from the school. To achieve this, the Claimant testified, that the 1st Respondent promised the Claimant that they will facilitate the transfer by offering the Claimant the sum of Kshs 10,000/= to withdraw the minor from the school.

8. It is the Claimant’s evidence that the 1st Respondent only sent her the sum of Kshs 600/= on 21st January 2020 to facilitate the transfer of the minor from their school. She therefore alleges that the action of the Respondents were discriminatory, stigmatizing and are in breach of her statutory rights hence resulted in pain and suffering physically, emotionally and psychologically.

9. In cross examination by the Tribunal, the Claimant confirmed that the minor is 12 years old and was in class 2 during the occurrence of the incident. She further confirmed that the school manager, the 1st Respondent informed her on call that the minor be transferred from school. She therefore closed the Claimant’s case.

C. THE RESPONDENT’S CASE 10. Despite service the Respondents did not enter appearance nor did they defend this claim as brought against them.

D. ISSUES FOR DETERMINATION 11. This Tribunal having read through the pleadings filed, having heard the evidence of the Claimant and having read through the submissions filed by the Claimant dated 30th January 2024, and the cited authorities in support of the Claimant’s case, the Tribunal has identified the following as issues for determination in this matter:i.Whether the minor was discriminated upon on the basis of his HIV status;ii.Whether the Claimant is entitled to the reliefs sought.

E. LEGAL ANALYSIS 12. This Tribunal will now analyze the issues identified above singularly as follows.i.Whether the minor was discriminated upon on the basis of his HIV status

13. The term discrimination although not defined in the HIV and AIDS Prevention and Control Act. However, the same is defined in the Black’s Law Dictionary as follows:“the unjust or prejudicial treatment of different categories of people, especially on the grounds of ethnicity, age, health status, sex, or disability..”To contextualize this term Section 32 of the HIV and AIDS Prevention and Control Act (HAPCA) provides:“No educational institution shall deny admission or expel, discipline, segregate, deny participation in any event or activity, or deny any benefits or services to a person on the grounds only of the person’s actual, perceived or suspected HIV status.”

14. The Claimant’s major claim before us is that her son was discriminated upon by the Respondent, who upon learning of the minor’s status demanded that the minor be transferred from their school. As testified by the Claimant, the 1st Respondent even offered to give her Kshs 10,000/= to facilitate the transfer from school only to end up sending her Kshs 600/=. The Claimant produced the MPESA statement as evidence that indeed the 1st Respondent paid her the amount to facilitate the minor’s transfer from the school.

15. It is therefore our finding that for the Respondents to demand the minor to be transferred out of the school upon learning of the minor’s HIV status was indeed to discriminate against the minor clearly contravening Section 32 of the Act.

16. 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.”

17. HIV stigma refers to irrational or negative attitudes, behavior and judgement towards people living with or at risk of HIV. The unfortunate consequence of such stigma is that it discourages some individuals from learning their HIV status, accessing treatment or staying in care. This also leads to negative feelings or thoughts by such persons. Indeed, breaking down HIV stigma is a critical part of ending the HIV epidemic and, therefore, a crucial role of this Tribunal.

18. In the case herein, the Claimant testified that as a result of the Respondent’s action against the minor which were discriminatory and stigmatizing, the Claimant and the minor suffered physically, emotionally and psychologically and that the minor no longer goes to school as a result.

19. Section 3 of HAPCA provides that the object and purpose of the Act is, inter alia, to positively address and seek to eradicate conditions that aggravate the spread of HIV infection. This object is at the forefront of the Tribunal’s operations, which aims to address the issue of stigma within the society. It goes without saying that in a society where persons living with HIV are exposed to stigma daily, disclosure of one’s HIV status would undoubtedly undermine a person’s dignity.

20. It is quite unfortunate that a minor of 12 years old could be discriminated and stigmatized to the point of not going to school by the school administrators which in fact goes against the best interest of the minor. This Tribunal finds that the minor suffered stigmatization by the fact that the Respondent forced him to transfer from the school thereby separating him with his brother.ii.Whether the Claimant is entitled to the reliefs sought.

21. Having answered the first issue to the affirmative, what is left for determination is the quantum of damages payable to the Claimant having been discriminated against by the Respondent based on his health status and damages payable by the Respondent having caused the Claimant to suffer stigmatization.

22. The Claimant also placed reliance in EOD v OC & Another ]2020] eKLR where the Tribunal awarded the Claimant the sum of Kshs 350,000/= as general damages against the Respondents for emotional and psychological suffering as a result of disclosure of his HIV status without Claimant’s consent.

23. The Claimant also relied on GGOO v MOA ]2021] eKLR where the Claimant was awarded Kshs 500,000/= as damages for emotional and on the psychological distress as a result of stigma.

24. Whilst this Tribunal appreciates the above authorities, it is important to point that the circumstances surrounding the material case herein are slightly different as the case in EOD above dealt with disclosure of one’s HIV status and therefore not appropriate for comparison with this case which is purely on discrimination. It is also interesting that the Claimant in her written submissions introduced new evidence that were never pleaded and never came during trial to the effect that there was disclosure of the Claimant’s HIV status to the whole school necessitating the brother to be transferred from the school and suffering stigma.

25. Having regard to the claim before us and submissions of the Claimant, we thus award the sum of Kshs.400,000/= for the discriminating upon the Claimant based on his HIV status and Kshs.250,000/= for the stigmatization suffered.

26. We also award costs of this suit to the Claimant.

F. DETERMINATION 27. On the first issue as to whether the minor was discriminated based on his HIV status contrary to Section 32 of HIV and AIDS Prevention and Control Act, we find that the Respondent’s actions of demanding immediate transfer of the minor from the school upon learning of the claimant’s HIV status amounted to a breach of the provisions of Section 32 of HAPCA and consequently award damages of Kshs.400,000/= under this ambit of the claim.

28. On the second issue as to whether as a result of the discrimination, if any, the Claimant suffered stigmatization, we find to the affirmative and thus make an award of damages of Kshs.250,000/= under this ambit of the claim.

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

30. The Claimant is hereby awarded interest on Judgement items 27), and 28) above at court rates from the date of this Judgement until payment in full.

DATED and DELIVERED at NAIROBI this 3rd day of May, 2024. HON. 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 (Member) ………………………………………………DELIVERED virtually in the presence of;Ms. Katee for the ClaimantN/A for the RespondentYasmin Mohammed …….Court Assistant .1