[2024] KEHAT 1177 (KLR)

LNM v DNO (Tribunal Case E003 of 2023) [2024] KEHAT 1177 (KLR) (14 August 2024) (Judgment)

Neutral citation: [2024] KEHAT 1177 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case E003 of 2023

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

August 14, 2024

Between

LNM

Claimant

and

DNO

Respondent

Judgment

1. This is a claim involving a husband and wife on disclosure of HIV status to third parties who happen to be close relatives of the parties. This Tribunal previously stated in HAT 60 OF 2022 EKM V MMM. That the family is the corner stone of the society. Article 45(1) of the Constitution of Kenya states that the family is a fundamental unit of the society that needs the recognition and protection of the State. The Judiciary recognizes this fact and encourages Alternative dispute resolution mechanisms including Mediation to solve family disputes so as to maintain family relations.

2. In view of the above sentiments, the parties herein were given a chance to attempt out of court settlement but the Claimant was not willing to negotiate. Both parties must submit themselves willingly to the mediation process for it to be a success. The matter therefore proceeded for hearing on 16th May 2024.

The Claimant’s case 3. The Claimant adopted her witness statement dated 20th October 2023 and testified that the Respondent and herself were husband and wife undergoing the divorce process. The Claimant and Respondent have lived as a discordant couple since the Claimant tested HIV positive in 2003. The Claimant avers that the Respondent kept her HIV status secret until the marriage broke down sometime in June 2023 and on 1st September 2023, while attending a funeral, the Respondent informed CW-2 who is the Claimant’s cousin and was the best lady in the Claimant and Respondent’s wedding that he knew that the Claimant was HIV positive since 2010. On 28th September 2023, he further called CW-2 on her phone and informed her that the Claimant was HIV positive and had convinced him to marry her which was a waste of his time. She further claimed that the Respondent also disclosed her HIV status to her sister CW-3 on 2nd September 2023 while attending another relative’s burial. It was her testimony that as a result of the disclosure, she has suffered loss of privacy resulting into emotional distress and loss of dignity.

4. On cross examination, the Claimant confirmed that she has 2 adult children but could not say whether the Respondent has ever disclosed her HIV status to them. She further disputed that this claim was filed after the Respondent filed and served her with the divorce papers and a land dispute involving their children. She further confirmed that she did not witness the disclosure.

5. To prove her Case, she called 2 witnesses. Her cousin testified as CW-2 and averred that she met and briefly talked to the Respondent on 1st September 2023 where he informed her that the Claimant had been HIV positive since 2010 and further received a call from the Respondent on 28th September 2023 where he repeated the allegations. On cross examination, she testified that she informed the Claimant a few days later as she was still grieving.

6. CW-3 the Claimant’s sister adopted her witness statement and testified that she met the Respondent at a burial on 2nd September 2023 and he informed her that the Claimant had been HIV positive since 2010. However, on cross examination she stated that the Respondent did not disclose the Claimant’s HIV status to her during the burial but that he called her a few days later and informed her of the same.

The Respondent’s Case 7. The Respondent adopted his witness statement and testified that the Claimant filed this claim as a reaction to a land Case and divorce CASE that had been initiated by the Respondent. It was his testimony that he knew the Claimant’s HIV status in 2003 and they have lived as a discordant couple without him disclosing the Claimant’s HIV status to their children or any third parties.

8. He denied informing CW-1 and CW-2 of the Claimant’s HIV status. He admitted to have met and consoled with them in the 2 funerals but insisted that the meetings were too brief and they did not discuss the Claimant.

Issues for Determination 9. The Tribunal having considered the pleadings filed, the evidence adduced by the parties and the witnesses, considers the following as the issues to be determined:-1. Whether there was unlawful disclosure of the Claimant’s HIV status to third parties by the Respondent?2. Whether the Claimant suffered loss of privacy resulting into emotional distress and loss of dignity?3. Whether the Claimant is entitled to the reliefs sought?

Whether there was unlawful disclosure of the Claimants’ HIV status to third parties by the Respondent? 10. A person’s HIV status is confidential and should not be revealed to third parties without their consent as provided for under Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act reads:“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”

11. Disclosure of a person’s HIV status without their consent tantamount to violation of the right to privacy. This Tribunal has previously held that for one to prove disclosure, he/she must show that the disclosure was made to a third party without the Claimant’s consent and tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the said statement on a platform or a forum that could be easily accessed by a third party.

12. In SM v ENO[2018]eKLR we held that a Claimant must call a witness to confirm that indeed, there was disclosure of the claimant’s status to third parties, including the witness. This witness is a crucial key to the puzzle and assists the Tribunal in piecing together a Claimant’s averments and painting the picture of the circumstances under which the disclosure occurred. The witness’s account complements and corroborates that of the Claimant.

13. The Claimant testified that the CW-2 and CW-3 informed her that the Respondent disclosed her HIV status to them on separate occasions and called them as witnesses to prove disclosure to third parties. On cross examination, both CW2 and CW-3 confirmed that the disclosure was made to them orally and through phone and there was no recording of the same or an independent witness who over heard the conversation.

14. The Respondent in his submissions challenged the evidence of the Claimant and her witnesses regarding the dates the disclosure was made and how the disclosure was made and stated that the mere calling of a witness does not discharge a claimant’s burden of proving on a balance of probabilities that the events that the Claimant avers are likely to have taken place.

15. In view of the above, we agree with the Respondent’s sentiments that this is a classic case of hearsay and the mere calling of a witness does not discharge a Claimant’s burden of proving on a balance of probabilities that the events that the Claimant avers are likely to have taken place. The Claimant relied on hearsay evidence. She ought to have called independent witnesses who heard the Respondent disclose her alleged HIV status to CW-2 and CW-3 so as to meet the threshold set for proof of disclosure of HIV status to third parties. This claim therefore fails.

Whether the Claimant suffered loss of privacy resulting into emotional distress and loss of dignity? 16. The Claimant allege that as a result of the Respondent disclosing her HIV status to third parties she has suffered loss of privacy resulting into emotional distress and loss of dignity. In MKK v CWN [2016] eKLR the High court set the threshold in establishing psychological suffering as follows:“The plaintiff must prove, and the Court or Tribunal must be satisfied, that the injuries were actually suffered and were proximately caused by the defendants.”

17. This is supported by the case of David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177), where he stated that:[The] Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying, ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.

18. The Claimant failed to lead evidence to prove that she suffered loss of privacy resulting into emotional distress and loss of dignity. She did not give the details of suffering or produce documentary evidence in terms of counseling receipts to prove this fact and as such, this claim fails.

Whether the Claimant is entitled to the reliefs sought? 19. 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 her claim to the requisite standards.

20. This cause is, therefore, dismissed. This being a family dispute, Parties are to bear their own costs.Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST, 2024. ………………………………………………CAROLYNE MBOKU - CHAIRPERSONDELIVERED VIRTUALLY in the presence of:HON. B. O. YOGO - MEMBERHON. W. G. JAOKO (Prof.) - MEMBERHON. J. N. NGOIRI - MEMBERHON. S. K. MUSANI - MEMBERBOB OMONDI FOR THE CLAIMANTSILVIA MUHAYA FOR THE RESPONDENTYASMIN, COURT ASSISTANT.