[2024] KEHAT 586 (KLR)

JOO v WHC & 2 others (Cause 043 of 2022) [2024] KEHAT 586 (KLR) (17 May 2024) (Judgment)

Neutral citation: [2024] KEHAT 586 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 043 of 2022

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

May 17, 2024

Between

JOO

Claimant

and

WHC

1st Respondent

CECH NC

2nd Respondent

CA NC

3rd Respondent

Judgment

1. Vide a Statement of Claim dated 24th August 2023, the Claimant herein moved the Tribunal seeking the following reliefs from the Respondents herein:a.A declaration that the Respondent infringed the rights of the Claimant under Section 19 and 36 of the HIVandAIDSPrevention and Control Act;b.Damages for denial of health care services 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 clinical services 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. It is the Claimant’s case that on 15th August 2022, he attended clinic at the 1st Respondent’s hospital to collect his Anti-Retroviral drugs and was made to wait from 9. 15am to 2. 00pm without being attended to and was advised to return the following day. On 16th August 2022, the Claimant returned to the facility at 9. 00am and waited until 2. 00pm but was not attended to. He testified that it takes more than 5 hours to be attended to at the 1st Respondent’s facility. The reason for the delay is never given.

4. The Claimant testified that the delay in refilling his ART was a denial of health services, was discriminatory based on his HIV status and caused him physical, emotional and psychological suffering.

5. On cross examination, he confirmed that he was diagnosed with HIV in 2021 and has been taking medication from the 1st Respondent’s facility without default.

The Respondent’s Case 6. 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, list of documents dated 6th October 2023 and further list of documents dated 26th October 2022 were all admitted in evidence.

7. The Respondents denied the allegation of discrimination and denial of clinical services and testified that the Claimant used to take ART from the 1st Respondent’s facility but failed to show up for 8 clinic visits out of the 12 scheduled for him during the period. However, the Claimant was always attended to whenever he attended the clinics.

8. She further admits that the Claimant visited the 1st Respondent’s facility on the day mentioned by the Claimant but he did not wait in line for his turn as there were other patients in line before him.

9. On cross examination, she testified that on the said date, the delay was caused by an emergency case that had to be attended to by medics present who also attend the Comprehensive Care Clinic, the clinic designated for offering treatment and care for HIV infected persons.

Issues For Determination 10. 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 in support of the Claimant’s case, 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.Whether the Claimant was discriminated upon on the basis of his HIV status

11. 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 36 which provides:“No person shall be denied access to healthcare services in any health institution or be charged a higher fee for any such services on the grounds only of the person ‘s actual, perceived or suspected HIV status.”

12. 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.”

13. For one to prove discrimination of clinical services or health care services on the basis of one’s HIV status, one must provea.That he attended a health service provider or health management organization or medical insurance provider and was denied clinical service or health care services solely because of his perceived or real HIV status orb.That he attended a health service provider and was charged a higher fee for clinical service solely because of his perceived or real HIV status.

14. To prove his case, the Claimant testified that he visited the 1st Respondent’s facility for clinical services on 2 consecutive days, i.e 15th and 16th of August 2022 but was not attended to on both days. It was his testimony that there were 3 Ddoctors and no explanation was given for the delay despite the Claimant waiting to be attended to from 9am to 2pm. Further, it was his testimony that the denial of clinical services was detrimental to his health as he needs to take his daily dose of medication at it’s scheduled time.

15. The Claimant’s counsel in his submissions has placed emphasis on section 19(1) of the HIV and AIDS Prevention and Control Act which provides inter alia:“every health institution, whether public or private, and every health management organization or medical insurance provider shall facilitate access to health care services to persons with HIV without discrimination on the basis of HIV status.

16. Both the oral evidence and submissions of the Claimant allude to the fact that the Claimant was denied clinical services and that the delay in providing the clinical services was not explained. However, none of them has led evidence or given a plausible explanation linking the denial and or /delay of the clinical services to the Claimant’s HIV status for the Tribunal to hold that indeed the delay and /or denial of the clinical services was solely based on the Claimant’s HIV status.

17. Much as the Respondents have admitted that the Claimant visited the 1st Respondent’s facility, they were not clear on whether he visited the facility on 15th or 16th August 2022 or both days and whether they had an emergency on both days that led to the delay in attending to him. We only have his records for the 16th September 2022 which indicate that he attended the clinic late.

18. Further, the Claimant did not call an independent witness to testify for him and confirm whether the 1st Respondent discriminates against the patients who attend Comprehensive Care Clinic and whether the perceived discrimination was present from 2021 when he started attending clinics in the facility. We find this to be unbelievable considering the fact that the 1st Respondent offers Anti-Retroviral Treatment services and has trained personnel in the management of HIV as per the list of participants for the training conducted in 2022 on HIV management guidelines produced by the Respondents. This notwithstanding, 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 19 and 36 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? 19. The Claimant claims that the actions of the 1st Respondents led to his physical, emotional and psychological suffering. This Tribunal takes judicial notice of the fact that Anti-Retroviral Treatment must be taken daily as prescribed since failure to do so puts the patient at risk of the virus developing resistance to the treatment leading to treatment failure and disease progression.

20. However, the Tribunal has noted that the Claimant has not been diligent in attending the clinics and taking his medication as proved by the schedule of clinical visitation records provided by the Respondent. It is trite law that he who comes to Court must come with clean hands.

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.

23. Parties to bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 17TH 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)