[2022] KEHC 13986 (KLR)

LAO & another v AO (Civil Appeal E519 of 2021) [2022] KEHC 13986 (KLR) (Civ) (11 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13986 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E519 of 2021

CW Meoli, J

October 11, 2022

Between

LAO

1st Appellant

MA

2nd Appellant

and

AO

Respondent

(Being an appeal from the judgment and decree of the HIV &AIDS Tribunal at Nairobi) Delivered on 23rd July 2021 in HAT No. 013 of 2020)

Judgment

1. This appeal emanates from the judgment delivered by the HIV & AIDS Tribunal on July 23, 2021 in HAT No 013 of 2020. The proceedings before the tribunal were commenced by way of a statement of claim filed on December 18, 2020 by AO the Claimant before the tribunal (hereafter the Respondent) against LAO and MA, the Respondents before the tribunal (hereafter the 1st & 2nd Appellant/Appellants). The Claimant sought a declaration that he had suffered infringement of his rights as guaranteed and protected under law; a permanent injunction restraining the Respondents, their representatives and or assignees from further unauthorized disclosure and discrimination; and general damages in respect of violation of his dignity, for pain and suffering and /or emotional and psychological suffering as a result of wrongful disclosure and discrimination.

2. It was averred in the claim that the Respondent had been involved in a romantic relationship with the 1st Appellant, a relative to the 2nd Appellant. That on or about March 29, 2019 the Respondent was diagnosed with the Human Immunodeficiency Virus (HIV) and duly informed the 1st Appellant who terminated their relationship shortly after and informing the 2nd Appellant of the Respondent’s health condition without color of right or consent of the Respondent. It was further averred that after the termination of the relationship the 1st Appellant severally disclosed the Respondent’s status to third parties without his consent. That consequent to the emotional toll arising from the disclosures, the Respondent’s studies had been adversely affected and he had been unable to perform effectively and satisfactorily at his place of work on account and he had faced stigmatization and become a victim of derogatory remarks from the public. As a result, his dignity and self-esteem had been lowered. He averred that the Appellants’ actions had occasioned him loss and damage.

3. The 1st Appellant filed statement of defence on March 26, 2021 in which she admitted having been involved in a romantic relationship with the Respondent however denying other key averments in the statement of claim. The 2nd Respondent on her part filed a statement of defence on March 29, 2021 denying the key averments in the plaint. The Respondent in his reply to the 1st and 2nd Appellant statements of defence reiterated the averments in his statement of claim and denied the averments with respect to the statements of defence. The matter proceeded to full hearing during which the parties adduced evidence in support of their respective cases. In its judgment, the tribunal found in favour of the Respondent and entered judgment awarding damages payable by the 1st Respondent for unlawful disclosure of the Respondent’s HIV status to third parties without the Respondent’s consent and by the 2nd Appellant for the emotional and psychological distress occasioned to the Respondent, respectively made up as follows:Kshs 350,000/- against the 1st Appellant.Kshs 400,000/- against the 2nd Appellant.

4. Aggrieved with the outcome, the Appellants preferred this appeal which is based on the following grounds: -“1. The honorable tribunal erred in finding that the evidence of the witness “CW2” was uncontroverted.2. The honorable tribunal erred in law and fact by ignoring the Appellants’ submissions and pertinent issues raised therein.3. The honorable tribunal erred in law and fact by shifting the burden of proof to the Appellants.4. The honorable tribunal erred in law and fact in finding that the Appellants are liable against the weight of evidence.5. The honorable tribunal erred in law and fact in finding that the Respondent had successfully proven that there was unlawful disclosure of the Respondent’s status by the 1st Appellant to the 2nd Appellant without tendering any evidential material in reference to the said assertion.6. The honorable tribunal went beyond the scope and meaning of the words “sick” as used by the 2nd Appellant by drawing an inference that the same meant “HIV status”.7. The honorable tribunal ignored a cardinal principle of a trial, the principle that he who alleges must prove, by finding that the Appellants had disclosed the HIV status of the Respondent to third parties.8. The honorable tribunal erred in law and in fact in allowing the Respondent’s claim and awarding damages.” (sic)

5. The appeal was canvassed by way of written submissions. Counsel for the Appellants condensed his grounds of appeal into four issues for this court’s determination. Addressing the court on whether the Respondent discharged his legal and evidential burden in proving his case, counsel cited the provisions of Section 107, 108 & 109 of the Evidence Act, Halsbury Laws of England 4th Edition Volume 17 at Para 13 & 14, several decisions including Selle –Vs- Associated Motor Boat Co [1968] EA 123, Gitobu Imanyara & 2 Others v Attorney General[2016] eKLR,East Produce (K) Limited v Christopher Astiado Osiro – Civil Appeal No 43 of 2001 and Kiema Mutuku v Kenya Cargo Hauling Services Ltd 1991 to argue that the Respondent was tasked with the evidential burden in producing material evidence linking the 1st Appellant to the unlawful disclosure to the 2nd Appellant. That the Respondent tender any evidence to corroborate his suspicion or claim that it is the 1st Appellant who had disclosed his status and therefore failed to prove his case. Concerning the evidence of the Respondent’s witness SOO who testified as CW2 it was submitted that the Respondent had the onus of proving communication between CW2 and the 1st Appellant. That the 1st Appellant having denied the said communication it cannot be said that his evidence was uncontroverted.

6. Concerning whether the 1st Appellant disclosed the Respondent’s status to the 2nd Appellant, the court was referred to the record of proceedings before the tribunal and invited to find that the alleged disclosure was not proved by the Respondent. That the tribunal erred when it made a finding on the issue contrary to the evidence on record. Lastly as to the tribunal’s construction of the word “sick” to mean HIV AIDS, counsel asserted that the ordinary meaning and application of the word implies being affected by physical and mental illness. That, the tribunal attributed to the word a meaning beyond its ordinary meaning and contrary to the 2nd Appellant’s intent. Counsel concluded by submitting that the Respondent is using the court case to settle scores and urged the court address itself on the judicial issues before it. It was counsel’s view that the tribunal arrived at its finding in blatant disregard of elementary principle in civil cases, that he who alleges must prove and as such the decision ought to be set aside.

7. The Respondent naturally defended the tribunal’s findings. Counsel argued that the Respondent did discharge his evidentiary burden through evidence comprising documents, video clips and WhatsApp conversations as well as the testimony of a witness who prior to the unlawful disclosure by the 1st Appellant did not know the Respondent’s HIV status. Relying on the decisions in MCM v BOO [2019] eKLR and BNN v CMM[2019] eKLR it was further argued that in a claim of disclosure it is imperative to call a witness in proof that the information was disclosed to another and that it was upon the Appellants to controvert the Respondent’s evidence. Addressing the Appellants’ submissions on CW2’s and the 1st Appellant’s evidence it was contended that the tribunal fully recorded the witnesses’ testimony and considered it in the judgment.

8. Counsel asserted that it was immaterial whether the 1st Appellant disclosed the Respondent’s status to one or two people, and that the Respondent had established the unlawful disclosure made by the 1st Appellant to the 2nd Appellant which adversely affected him. Counsel defended the tribunal’s understanding of the word “sick” contending that insulting messages sent by the 2nd Appellant were indeed in reference to the Respondent’s HIV status. Calling to aid the decisions is Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 Others v Cabinet Secretary Ministry of Health & 4 Others [2016] eKLR, MM v MNM & Another[2020] eKLR, RN v ROO[2019] eKLR, GGOO v MOA [2021] eKLR, Francis Xavier Ole Kaparo v Standard Ltd & 3 Others [2010] eKLR and the provisions of Section 22 of the HIV & AIDS Prevention and Control Act(HAPCA) it was submitted that a person’s HIV status is a private affair and the Appellants’ willful disclosure without the consent of the Respondent did in fact cause him financial, psychological, physical and mental distress. That associated stigma whether experienced or perceived often leads to low self-esteem, isolation, depression, and feelings of hopelessness which hinders the treatment of persons living with HIV. In conclusion counsel cited the decision in EOD v OC [2020] eKLR to urge the court to uphold the tribunal’s award and dismiss the appeal.

9. The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –Vs- Associated Motor Boat Co [1968] EA 123 in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

10. It is settled that an appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278. Thus, upon reviewing the memorandum of appeal and submissions by the respective parties, it is the court’s view the appeal turns on one issue, namely, whether the tribunal’s finding of liability was well founded.

11. In Wareham t/a AF Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” (Emphasis added).

12. The key challenge raised by the Appellants on this appeal was whether the Respondent proved on a balance of probabilities that the Appellants unlawfully and without authority disclosed his HIV status in contravention of the provisions of the HIV and AIDS Prevention and Control Act (HAPCA). The tribunal after restating the evidence on record found that the 1st Appellant had disclosed the Respondent’s HIV status to the 2nd Respondent and to the witness CW2.

13. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. The Court of Appeal in Mumbi M'Nabea v David M Wachira [2016] eKLR discussed the standard of proof in civil liability claims in our jurisdiction and had this to say:“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.” The above provision provides for the legal burden of proof.However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v Blue Shield Insurance Company Limited-Civil Appeal No 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”See also Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another[2015] eKLR.

14. The Respondent’s case before the tribunal was chiefly anchored on communication by way of text messages exchanged between him and the Appellants. He particularly relied on text messages between him and the 2nd Appellant to make the case that from the latter’s messages, he deduced that the 1st Respondent had disclosed to the said 2nd Respondent his HIV status. On her part, the 2nd Appellant relied on Police Occurrence Book (OB) extracts and text messages with the Respondent to make the case that the Respondent had been bitter and threatened her after the rapture of his relationship with the 1st Appellant and that the Appellants made formal complaints to police at Kariobangi Police Station. It was her case that until then, she did not know about the Respondent’s HIV status and only learned of it at the police station when the Respondent disclosed the matter in a meeting with police concerning the Appellants’ complaints.

15. The Court having reviewed the entire Record of Appeal and the original record of the tribunal was concerned by the state of the two records. First, while referring in his evidence at the trial to several documents filed through his initial list of documents dated December 16, 2020 and the supplementary list of documents dated April 26, 2021, the Respondent did not produce any of these documents in his testimony. This includes six unmarked compact discs (CDs) possibly comprising the item referred to as no. 4 in the Respondent’s supplementary Record of Appeal dated April 26, 2021. The said discs were apparently filed on the record of this appeal separately after the Record of Appeal had been filed, by the Appellants, which action is highly irregular.

16. Thus, not having been produced before the tribunal as exhibits, none of the documents and material in the Respondent’s two lists could be considered to be part of the Respondent’s evidence. The rules of evidence are applicable in proceedings before the tribunal and with the exception made in Section 27(3) of HAPCA with regard to otherwise inadmissible evidence, the tribunal is obligated to apply the Evidence Act in its proceedings. Under the Act, it is not enough for a party to orally assert reliance on documents or other material evidence presented or identified by him before the Court; the same must be produced as exhibits in order to become part of the evidence.

17. In the same vein, I have already adverted to the fact that the witness statement of CW2, adopted as his evidence-in-chief at the trial cannot be traced on both the original record and Record of Appeal. Therefore, it is impossible to tell the exact contents of his evidence-in-chief. Not to mention that the witness did not offer any credible proof of his alleged telephone conversation with the 1st Appellant.

18. Similarly, the 2nd Appellant had apparently filed a mere list of documents dated March 26, 2021 indicating her intention to file at a later stage the Police Occurrence Book (OB) extracts and text messages and which going by her testimony, were produced and during her evidence as Exh 1 and 2 respectively. While these two sets of documents, albeit not formally marked as exhibits as is custom at production, are housed in the Record of Appeal, the original record does not contain these documents. Which begs the question whether indeed they were produced at the trial as asserted in the evidence of the 2nd Appellant.

19. That said, the burden of proof lay with the Respondent to demonstrate the alleged disclosures and stigmatization. As the Appellants have correctly pointed out, there was no direct evidence to demonstrate unauthorized disclosure by the 1st Appellant to the 2nd Appellant of the Respondent’s medical condition. The Respondent all but appeared to admit that his assertion was based on circumstantial facts, the most cogent being the text messages he had received from the 2nd Appellant concerning his status. That is why the said messages allegedly exchanged between him and the 2nd Appellant were critical for his case, and his failure to produce them before the tribunal meant that his oral evidence was uncorroborated, and his case therefore collapsed. He was represented by counsel and must take responsibility for the lapse. Equally, the 2nd Appellant ought to have filed her documents prior to the hearing but it was the duty of the tribunal to ensure that documents purportedly produced by her at the hearing were on record and marked as exhibits upon production.

20. This Court finds it surprising that the tribunal did not notice these lapses and had proceeded to give judgment as if the parties’ purported exhibits and testimony (in respect of CW2) were on record. Regarding the evidence of CW2 the Court also finds merit in the Appellants’ complaint that the tribunal shifted the burden of proof upon the 1st Respondent in asserting her alleged failure to controvert the evidence of CW2, and for literally putting words in the mouth of the 1st Appellant regarding her alleged disclosures to the 2nd Appellant.

21. Concerning CW2, the Court has already adverted to the missing evidence-in-chief contained in his witness statement from the record, and to the paucity of the remainder of his evidence on the record. The witness did not tender any evidence to firm up claims of a telephone conversation with the 1st Appellant, who disputed such an occurrence. He could have tendered call logs or such other evidence in that regard. Moreover, he did not give evidence showing prior close interaction with the 1st Appellant alone or with the Respondent. The tribunal erred in holding that the evidence of CW2 was credible; it was not, and there was no duty cast upon the 1st Appellant to rebut what was patently an incredible and incomplete piece of evidence.

22. In Karugi & Another v Kabiya & 3 Others(1987) KLR 347 the Court of Appeal stated that;-“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

23. The tribunal stated concerning alleged disclosure to the 2nd Appellant that:“As regards disclosure to the 2nd Respondent, the 1st Respondent testified that she never told the 2nd Respondent of the Claimant’s status though she admitted during cross-examination by Ms. Wachira that, “M (2nd Appellant) came to know about the status of A (Respondent) when I narrated the story to her.” For this reason, we find that the 1st Respondent disclosed the Claimant’s status to CW2 and the 2nd Respondent without his consent and, therefore, contravenes Section 22 as read with Section 23 of HAPCA”.

24. First, the 1st Appellant had maintained in her defence statement and evidence-in-chief that she did not disclose the Respondent’s status to the 2nd Appellant and to CW2. She went on to explain that the said Respondent could have surmised the Respondent’s condition from two facts, namely that she knew that the 1st Appellant who lived with her and under her care was in a romantic relationship with the Respondent in the material period, and secondly, she must have seen the HIV pre-exposure prophylactics (commonly known as PreP or PEP) that the 1st Appellant was using. Indeed the 2nd Appellant in denying that the 1st Appellant had disclosed the Respondent’s status to her confirmed that having noted the changes in the 1st Appellant and the kind of drugs that she was using, she had suspected that the Respondent was HIV positive.

25. The tribunal’s trial record of what the 1st Appellant had stated during cross-examination by Ms Wachira mainly constituted a denial of disclosure to third parties and to the 2nd Appellant in particular. Her final answers containing the statement paraphrased by the tribunal in its judgment read as follows:“I know EM. She is a niece to the claimant. I do not know how the 2nd Respondent found out about the status. I narrated the story to her, 2nd respondent, about what took place”.

26. It was not open to the tribunal to paraphrase the 1st Appellant’s evidence above into the statement that “M (2nd Appellant) came to know about the status of A (Respondent) when I narrated the story to her.” thereby giving it a different purport, as it did in the judgment. The last statement by the said Appellant appears vague as to the nature of the “story” narrated to the 2nd Appellant by the 1st Appellant and the tribunal could not properly supplement it by its own version to assert an admission of disclosure by the 1st Appellant to the 2nd Appellant.

27. In its judgment, the tribunal was to its credit, alive to the object and purpose of HAPCA as spelt out in section 3, and subsections (b) (ii) and (iii) thereof with regard to the Respondent. However, in this matter as in all suits brought under the HAPCA to enforce claimants’ protections against alleged offending parties, the tribunal must apply the relevant substantive and procedural law. In this instance, the tribunal failed to address itself to glaring lapses in the record and to apply the correct standard and burden of proof. Had it done so, it would have come to the conclusion that the Respondent had failed to discharge his burden of proof.

28. Considering all the foregoing, this court is persuaded that the findings of the tribunal regarding liability were based on no evidence and/or on a misapprehension of the evidence before it. The findings cannot stand. The Court therefore will allow the appeal, set aside the judgment of the tribunal and substitute therefor an order dismissing the Respondent’s complaint before the tribunal. In view of the nature of the dispute and the relationship from which it arose, the Court will order that each party bears its own costs in the tribunal and on this appeal.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 11TH DAY OF OCTOBER 2022C.MEOLIJUDGEIn the presence of:For the Appellants: Mr. MungaiFor the Respondent: Ms. WachiraC/A: Carol