[2019] KEHAT 18 (KLR)

REPUBLIC OF KENYA

IN THE HIV AND AIDS TRIBUNAL AT NAIROBI

HAT CASE NO. 015 OF 2018

MCM..............................................................................CLAIMANT

VERSUS

BOO...........................................................................RESPONDENT

JUDGEMENT

The Pleadings

The Claimant MCM filed this claim on 6th July 2011. It is the Claimant’s contention that she was employed at [Particulars Withheld] Group as an Assistant Operation Manager where the Respondent was the Managing Director. That sometimes around 26th April, 2015, the Respondent Raped the Claimant and continued to force the Claimant to have sex with her with threats and intimidation of terminating her employment if the Claimant did not give in to the sexual advances.

1. The Claimant also claimed that on 18th July, 2015 the Respondent summoned the Claimant to his premises and compelled the Claimant to undergo a HIV test, contrary to the provisions of section 13 and 14 of the HIV and Aids Prevention and Control Act (hereinafter referred to as HAPCA) and further recorded the negative result of the Claimant and kept the same as part of his statistics, contrary to the provisions of section 20 (2) of HAPCA.

2. The Claimant also contended that sometime in the month of December 2015, the Claimant realized that she was pregnant and went to Nairobi Women’s Hospital for antenatal care where preliminary tests were conducted on her where the Claimant was informed that she was HIV positive.

3. The Claimant avers that she informed the Respondent of her HIV status who dismissed the same as non-issue and claimed that what was of paramount importance was the issue of pregnancy, which according to the Respondent was to be terminated with urgency.

4. The Claimant further averred that the Respondent disclosed her HIV status to several persons who included the Respondent’s wife, one GN, and CM, the General Manager of [Particulars Withheld] Group of Companies on 16th September, 2016 and as a result, the news of the HIV status of the Claimant spread to other top officials of[Particulars Withheld]Group of Companies. The Respondent, according to the Claimant, also disclosed her status on 27th September, 2017, while being in the company of his wife, to the CID Officers at Kisii Police Station. On 6th October, 2017, the Respondent, according to the Claimant, also disclosed the Claimant’s HIV status to Police Officials at Railway Police Station.

5. The Respondent also caused the Claimant to be arrested and locked up in the cells for no justifiable reason. It was thus the Claimant’s assertion that the verbal disclosure of the Claimant’s HIV status without her consent by the Respondent was contrary to Section 22 of HAPCA and as a result, the Claimant has been a victim of derogatory and abusive comments as well as discriminatory acts and practices. It was also the Claimant’s assertion that the disclosure of her HIV status was in contravention of section 3 (b) (ii) of HAPCA.

6. The Claimant’s case was that the Respondent’s actions had affected her socially, emotionally and psychologically for the reason that the Claimant remains traumatized in that the Claimant cannot conduct her affairs freely for the reason that she cannot endure the stigmatization and rejection from her colleagues, friends and the community at large. It was also the Claimant’s case that as a result of the Respondent’s acts of forceful and compulsory testing, recording and stunning her HIV negative status as well as deliberate transmission of HIV coupled with the disclosure was liable to pay the Claimant’s damages as a result of impairment of dignity, emotional and psychological suffering occasioned by the wrongful deed.

7. In the final analysis the Claimant prayed for judgement against the Respondent for;-

i. A declaration that the Claimant has suffered a violation and infringement of her rights as guaranteed and protected under the HIV & AIDS prevention and control act Cap 246A;

ii. A permanent injunction restraining the Respondent, his agents, representatives and or assignees from further threats, coercion, intimidation and unauthorized disclosure;

iii. Payment of Damages (general and punitive) in respect of impairment of dignity, pain and suffering and or emotional and psychological suffering as a result of the wrongful acts (forceful and compulsory testing without consent, recording and storing her then HIV negative status, deliberate transmission of HIV coupled with the disclosure after infection);

iv. Interest on (iii) above;

v. The Honourable Tribunal do issue such Orders and give such directions as it may deem fit to meet the ends of justice; and

vi. The Respondent to pay costs of this claim in any event.

8. The Respondent filed a Response to Claim on 8th August, 2018. In his Response to the Claim, the Respondent denied the Claimant’s Claim but admitted the fact that sometime in 2014, the Respondent and the Claimant were in a casual consensual sexual affair which did not last more than six (6) months after the Respondent rejected the marriage proposal and allusions that the Claimant was advancing.

Claimant’s Case

9. In support of the Claimant’s case, Sister SK (CW1) and the Claimant herself testified on 16th August, 2019. CW1 testified that she has a BSC in Medical Laboratory Science and works at[Particulars Withheld]Health Centre in Karen. CW1 testified that she was aware of the Order made by the Tribunal directing that a full confirmatory test be done on the Claimant and the Respondent. CW1 testified that the tests were done and in support of his assertion, CW1 presented the result to the Tribunal. CW1 testified that according to the results, the Claimant’s first determinance was positive, first Response was also positive. CW1 also testified that they did HIV antigen antibody test which was also positive.

10. CW 1 further testified that the same tests were also conducted on the Respondent. The Determinant was positive, the first Response test was negative. CW1 testified that according to the algorithm, this is inconclusive. CW1 further testified that they then did HIV Antibody Antigen test which was negative. On cross examination by Mr. Farrah for the Respondent, CW1 testified that she could not remember what NASCOP was in full but confirmed that NASCOP algorithm was the standard test in the country since according to CW1 it guides the management of HIV in the country. According to CW1, from the Report the Claimant is HIV positive whereas the Respondent is HIV negative as per 23rd January 2019 when the test was carried out. CW1 was of the opinion that this does not include the window period.

11. The Claimant adopted her statement sworn on 5th July, 2018. The Claimant testified that she knows the Respondent in the matter who was her former boss at Topline Marketing Limited. The Claimant confirmed that she no longer worked at the said company. The Claimant testified that she first tested positive in mid-2015 (between June or July) and specifically July, 2015. It was the Claimant’s evidence that as at July 2015 she was not in a relationship with the Respondent. The Claimant testified that she joined[Particulars Withheld]Marketing Limited in 2014 and at that time the Claimant was HIV negative. It was the Claimant’s evidence that when she tested HIV positive, she notified the Respondent because according to the Claimant, she was pregnant for the Respondent and as a result of the pregnancy, the Claimant had gone for anti-natal tests at Nairobi Women’s Hospital and it was then that according to the Claimant, she was informed of her HIV status. The Claimant testified that she did inform the Respondent about her status and according to the Claimant, the Respondent thought she was lying about her status.

12. The Claimant further testified that once she notified the Respondent of her HIV status, the relationship continued but with two (2) conditions; firstly, the Claimant was not to disclose her status to anyone and secondly that the Claimant was not to be close to any of her colleagues at her workplace.

13. The Claimant testified that the relationship with the Respondent was on and off until August, 2017 when they terminated the same. It was the claimant’s testimony that she tried on several occasions to resign but the same was rejected. It was the Claimant’s opinion that she was aware that transmission of HIV is not a criminal offence. It was the Claimant’s testimony that the Respondent had invited her to his house following her dismissal from employment and on the second visit, the Claimant testified that the Respondent forced her to take a HIV test and according to the claimant’s evidence she saw her result after.

14. On cross examination by Mr. Farrah, Counsel for the Respondent, the Claimant testified that the Respondent had forcefully tested her for HIV in mid-2015 by pricking her finger and that the Respondent had a kit with him. It was the Claimant’s testimony that at the time she was HIV negative since she saw the results. The Claimant confirmed that she had no evidence of this.

15. The Claimant testified that since first tested HIV positive in December, 2016 the same time that relationship with the Respondent also terminated. The Claimant confirmed that she had not produced those results before the Tribunal. It was also the evidence of the Claimant that she had not produced before the Tribunal any results save the ones from Kiambu and Nyumbani. The Claimant also confirmed that the card from Nairobi Women’s Hospital was not dated. The Claimant further confirmed that she did not report the issue of willful transmission of HIV and in evidence she produced the letter dated 14th February, 2018 in support of this assertion. It was also the Claimant’s evidence that the Respondent had sex without her permission and that the Respondent subdued her. Despite the fact that the Claimant screamed no one came to her rescue. The Claimant confirmed that she did not report this incidence.

16. The Claimant also testified that as regards the termination of the two pregnancies she had no evidence of the same save for the second termination as evidence of the Claimant that as at 18th January, 2017 the Claimant confirmed that she had no evidence that the Respondent forced the Claimant to administer family planning services though she too did not have evidence of the same. The Claimant testified that the Respondent constantly nagged him and refused her to resign. In return he constantly promoted her so that she could not tell anyone. Through all this, the Claimant never told/shared with her other colleagues as she had been warned that talking about HIV and HIV infection and who infected the Claimant was a huge criminal offense. The Claimant further testified that she was at[Particulars Withheld]Marketing Limited until August, 2017 and that as at 1st September, 2016, the Claimant was still in a relationship with the Respondent. It was the Claimant’s evidence that she could not remember when the relationship with the Respondent permanently terminated.

17. It was the Claimant’s position that she intended to challenge the results from[Particulars Withheld]Diagnostics. The reason for the challenging of the results according to the Claimant was because it was difficult for the Claimant and the Respondent to have a joint testing and also the fact that the Tribunal had ordered the Claimant and the Respondent to go back and test. It was also the evidence of the Claimant that the result of[Particulars Withheld]Diagnostics was not accurate for the reason that the personnel at[Particulars Withheld]Diagnostics had informed the Claimant and the Respondent that the hospital had a ran out of reagents. The Claimant confirmed that the result from Kiambu Hospital dated 2nd May, 2018 confirmed that she was HIV positive.

18. On re-examination, the Claimant testified that it was on December, 2015 when she realized that she was pregnant and that at this time the Claimant did not anticipate to file the suit and as regards the termination of the pregnancy is what is contained in the Report of Doctor Onenga. The Claimant confirmed that it was on 18th July, 2015 when she was forced to take the test by the Respondent. The Claimant did not however have the results of the test because according to the Claimant, she had not been given the same by the Respondent. It was the Claimant’s evidence that she had presented all the documents in her possession.

19. The Tribunal sought clarification from the Claimant. The Claimant informed the Tribunal that the test that was conducted on her on 18th July, 2015 was done by the Respondent because according to the Respondent, he had a family that he wanted to protect. It was the Claimant’s evidence that she did agree to the testing to the testing because she was not afraid of the testing. The Claimant further testified that she waited for the results which the Respondent gave to the Claimant. This marked the close of the Claimant’s case.

The Respondent’s Case

20. The Respondent called two (2) witnesses to testify on his behalf. DW1 one PN stated that she is a Lab Technologist at[Particulars Withheld]Hospital and has a degree in Medical Laboratory Services and is a registered member of the Kenya Medical Laboratory Technicians and Technologists Board (KMLTTB). DW1 testified that she had a report dated 26th August, 2018 which was a report that related to the testing of the Respondent’s HIV status. According to DW1 the results were Negative and the method she used to test was Elizer method. According to DW1, the Respondent was HIV Negative as at 26th August, 2018. DW1 further testified that the Report was accurate for the reason that at that date the Hospital had carried out quality control measures.

21. On cross examination by Mr. Onenga, Counsel for the Claimant, DW1 testified that she has been at[Particulars Withheld]Hospital for a period of seven (7) years and that in a month she handles close to 600 samples. DW1 further testified that she did not have any relationship with the Respondent nor did she meet the Respondent prior or after the test for the reason that DW1 only received samples for testing from someone else who collected the samples.

22. DW1 also testified that she used Elisa test which according to DW1 was a standard test that was used. The standard turnaround time once the samples are received according to DW1 was two (2) hours and that if the results turned out Negative, it would take shorter whereas if the results turned out Positive, the results would take longer and in DW1’s evidence, it would take like four (4) hours. In this particular case, DW1 testified that she received the samples at 1429 Hours and the results were ready at 1540 Hours.

23. DW1 confirmed that the Report carried out several tests. It was DW1’s evidence that she would not know about self-tests requests because according to DW1, her work was to receive samples and conduct tests on the samples that she had received. If the tests come out positive, DW1 testified that she would put the result in an envelope and give the results to the Doctor who would interpret the results.DW1 confirmed that she was aware of home based HIV tests and that at the time of conducting the test, the Respondent was 39 years and 11 months old.

24. On re-examination, DW1 testified that the Report had other tests for the reason that several tests had been requested and the results of those other tests are recorded on the Report. DW1 further testified that HIV test was negative and according to DW1, it would not be possible for the patient to have infected any person prior to this date.

25. The Tribunal sought some clarifications from DW1. According to DW1 the test that was used was sandwich and that sensitivity of the test is above 95% and that the test detects from 4 weeks of the Window Period. It was the evidence of DW1 that there no false Negative experience in this test and that the only confirmatory test was PCR. DW1 testified that she did not need to double check the results because the same were negative. DW1 confirmed that Mater Hospital does not carry out the PCR test which according to DW1 is referred to Lancet Laboratory. The PCR and Elizar tests according to DW1 test different things. DW1 concluded by testifying that Mater Hospital is accredited and approved as a center for HIV testing.

26. The Respondent testified that he is a businessman who runs two (2) marketing firms and that he resides at Nairobi West. The Respondent confirmed that he was aware of the case and that he had signed a witness statement dated 28th August, 2018 which he would wish to adopt the same as evidence as well as a bundle of documents dated 27th August, 2018 containing nine (9) documents which the Respondent produced as part of his evidence. The Respondent also confirmed that he had filed a further list of Documents pursuant to a letter dated 24th January, 2019 and wished to also rely on the four (4) documents therein as his evidence.

27. The Respondent further testified that the Claimant and himself had a sexual relationship which began sometime early 2015 and specifically between January and April and that towards 2016, the relationship ended. The Respondent testified that he had never raped anyone including the Claimant herein. It was the Respondent’s evidence that the first time he heard of the allegations of Rape was when he was summoned to Railways Police Station. The Respondent also testified that the first time he heard anything to do with HIV testing was when he went to Mater Hospital and Nairobi Hospital in August, 2018 coupled with when the Tribunal referred the Claimant and the Respondent to Nyumbani Diagnostic Centre. It was the Respondent’s evidence that he did go to the said facilities in response to the allegations of his HIV status.

28. It was the Respondent testimony that the first time he became aware of the Claimant’s HIV status was at Railways Police Station by a Corporal Marker who took me aside and in company of another Policeman called BM in 2017. The Respondent testified that he had no knowledge of the Claimant’s HIV status and as such he could not have disclosed the same.

29. The Respondent further testified that going by the accusations in which the Claimant had levied upon him, the Claimant’s intention was to malign his name. The Respondent referred to an order that he had obtained in Milimani CMCC No. 9233 of 2017 dated 10th January, 2018 which was an order barring the Claimant from threatening the Respondent as a result of posts posted on Facebook. The order was at page 32 and 33 of the Respondent’s Bundle of Documents.

30. It was the Respondent’s position that in the Demand letter that the Claimant had sent to him on 15th November, 2017, there was no claim of forceful, Rape or transmission of HIV and it was only on 2nd April, 2018 when he received another demand letter from the Claimant for willful transmission of HIV.

31. The Respondent informed the Tribunal that the claims made by the Claimant are unjust for the reasons that he did not know how to test and that the claim by the Claimant that the Respondent had injected the Claimant was not possible and according to the Respondent, this was the Claimant’s story against his.

32. The Respondent further told the Tribunal that the allegations of the pregnancies are untrue and that when he was summoned to the DCI, the Respondent was dealing with allegations of seven (7) pregnancies. The Respondent further denied helping the Claimant to terminate the pregnancies and also in sending the Claimant the messages.

33. On cross examination by Mr. Onenga, Counsel for the Claimant, the Respondent confirmed that he had received the Statement of Claim from the Claimant and the phone number appearing at page 4 was a number that the Respondent initially used until about May – June 2018. The Respondent confirmed that the screenshots from the Claimant were dated July 2018.

34. It was the evidence of the Respondent that the Claimant was employed in November 2014 and the relationship between the Claimant and the Respondent began between Jan – March 2015. The Respondent testified that he did not at any point consider himself to be HIV negative and he had not stated as much in his Response. The Respondent used protection but eventually stopped using protection after five (5) interactions/encounters with the Claimant. The Respondent further testified that he erred for the welfare of his family because he did not go for any tests before engaging in unprotected sex with the Claimant. According to the Respondent, the relationship yielded zero pregnancies.

35. The Respondent further testified that the Claimant last resigned the week of 9th – 14th August, 2017 and that in 2017 the Respondent’s wife had the Claimant arrested and that it was also a week later that the Respondent was called to the same Police Station that the Claimant had been arrested. It was the evidence of the Respondent that he was not aware whether the Respondent’s wife had informed the Claimant of his status.

36. The Respondent informed the Tribunal that the Claimant had visited his home in Kisii and according to the Respondent, the Claimant went there to cause mayhem. It was the Respondent’s testimony that he called one C to intervene so as to avoid further conflict. According to the Respondent Caleb was aware that the Claimant had resigned from work. The Respondent confirmed that he did not include the OB number in the bundle of documents.

37. The Respondent further testified that he did not threaten the Claimant not to discuss about her status because according to the Respondent, he was not aware of the Claimant’s status. The Respondent confirmed that the three reports were his results from the various institutions. It was the Respondent’s testimony that at Nyumbani the samples were drawn from the Claimant and himself. According to the Respondent, the first time they visited Nyumbani, there were no reagents and they were requested to go back. The Respondent testified that he did receive the results on 23rd January, 2019 the blood having been drawn on 22nd January, 2019. The Respondent confirmed that at Nyumbani Diagnostic Centre, the Claimant collected her results first and that the laboratory technician explained to the Respondent the tests that were being conducted on him. It was the Respondent evidence that the tests at Nairobi Hospital and matter hospital were conducted at the same day. That his age at Nairobi Hospital was indicated as 40 years while at Matter Hospital it was indicated as 39 years and 7 months and Nyumbani 39 years and 7 months. The Respondent also testified that he did believe that the three tests proved his innocence and he did not want a forth one unless it was necessary.

38. On re-examination, the Respondent confirmed that he was aware of the claims before the Tribunal and stated that the Tribunal could not resolve the disagreements between the Complainant and himself during their relationship and that the meeting that was held in Kisii was in regard to the relationship. It was the Respondent’s testimony that the “issues” that the Claimant was referring to was not before the Tribunal. He further testified that his sexual encounter with the Claimant started in 2015 and that the last sexual encounter was in 2016. The Respondent further testified that the documents which he had not produced due not address the issues before the Tribunal and that he had no reservations over results from the three (3) Tribunals because according to the Respondent they are institutions of repute.

39. The parties were directed to file Written Submissions which the Claimant filed hers on 11th September, 2019 while the Respondent filed his on 17th October, 2019. Having analyzed the evidence by the parties and the submissions filed, the issues that fall for determination before the Tribunal are as follows;

(a) Whether the tribunal can adjudicate on claims of Rape and forceful abortion by the Respondent upon the Claimant.

(b) Whether the Respondent willfully and intentionally transmitted HIV virus to the Claimant.

(c) Whether the Respondent is guilty of disclosure of the Claimant’s HIV status contrary to section 22 of HAPCA.

(d) Whether the Respondent forcefully tested the Claimant of HIV contrary to Section 13 and 14 of HAPCA.

(e) Whether the Respondent contravened the provisions of section 21 of HAPCA in as far as handling of the Claimant’s HIV records are concerned.

Issue 1

40. The Claimant avers at paragraph 4 of the Statement of Claim that the Respondent invited the Claimant to his premises and raped her and further continued demanding sex and out of desperation the Claimant obliged. During cross-examination by Mr. Farah, Counsel for the Respondent, the Claimant testified that the Respondent had sex without her permission and despite the fact that the Claimant screamed, no one came to the Claimant’s rescue. The Claimant further confirmed that she did not report this incidence. The v denied having raped the Claimant and further testified that the first time the Respondent heard of the allegations was when he was summoned to Railways Police Station. The Respondent also denied helping the Claimant to terminate the pregnancies.

41. None of the parties herein addressed the Tribunal in respect to the above issue. The Jurisdiction of this Tribunal is found under Section 26 of the HIV and AIDS Prevention and Control Act (HAPCA) and the Jurisdiction of the Tribunal pursuant to section 26 (2) of HAPCA excludes criminal jurisdiction. Rape is an offense under Section 3 of the Sexual Offences Act whereas abortion is an offence against the right to life as provided under Article 26 of the Constitution of Kenya, 2010 and therefore charged under section 203 as read together with section 204 of the Penal Code. These are offences of Criminal nature and these punishments are prescribed by law. These offences are therefore of criminal nature.

42. It has been held time without number that jurisdiction is everything and where a tribunal does not have one, it has to down its tools. In the case of owners of Motor Vessel “Lillian S.” –v- Caltex Oil (Kenya) Ltd (1989) eKLR, the Court of Appeal held that;

“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no Jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that its without jurisdiction.”

43. It is therefore the finding of this tribunal that its Jurisdiction does not extend to criminal Jurisdiction and as such cannot adjudicate on issues relating to rape of the Claimant by the Respondent and the forceful termination of the pregnancies.

Issue 2

44. The Claimant in her statement of claim pleaded that Respondent failed to disclose and deliberately transmitted HIV to the Respondent in contravention to section 24 of HAPCA. On Cross-examination the Claimant testified that at the time the Respondent forcefully tested her for HIV, the Claimant was HIV negative since according to the Claimant she did see the results. It was also the Claimant’s evidence that she first tested HIV positive in December, 2016, the same time that the relationship with the Respondent was also terminating. According to the Respondent, he was not aware of his HIV status when he had a sexual relationship with the Claimant and that he became aware of the issue of willful transmission of HIV to the Claimant when he was at Central Police Station. It was further the Respondent’s evidence that in the initial days of their sexual encounter with the Claimant, they used protection but eventually stopped.

45. On the issue of willful transmission, the Claimant has submitted that it could not be the Respondent’s position that having tested negative he could not have transmitted the HIV virus to the Claimant. It was further submitted by the Claimant that the three (3) reports belong to three (3) different individuals and as such were all “tailor-made” to suit this particular case.

46. The Respondent, on the other hand, submits that section 24 of HAPCA was declared unconstitutional by a three Judge bench in Aids Law Project –vs- Attorney General & 3 others [2015] eKLR. The Respondent also submitted that from the medical report adduced in evidence, the reports had proved that the Respondent was HIV negative and as such it was not possible to have transmitted the HIV virus to the Claimant.

47. Section 24 of HAPCA provides as follows;

24. Prevention of transmission

(1) A person who is and is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus shall—

(a) take all reasonable measures and precautions to prevent the transmission of HIV to others; and

(b) inform, in advance, any sexual contact or person with whom needles are shared of that fact.

(2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected.

(3) A person who contravenes the provisions of subsection (1) or (2) commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding seven years, or to both such fine and imprisonment.

(4) A person referred to insubsection (1)or (2) may request any medical practitioner or any person approved by the Minister undersection 16to inform and counsel a sexual contact of the HIV status of that person.

(5) A request under subsection (4) shall be in the prescribed form.

(6) On receipt of a request made under subsection (4), the medical practitioner or approved person shall, whenever possible, comply with that request in person.

(7) A medical practitioner who is responsible for the treatment of a person and who becomes aware that the person has not, after reasonable opportunity to do so—

(a) complied with subsection (1) or (2); or

(b) made a request under subsection (4),may inform any sexual contact of that person of the HIV status of that person.

(8) Any medical practitioner or approved person who informs a sexual contact as provided under subsection (6) or (7) shall not, by reason only of that action, be in breach of the provisions of this Act.

48. The High court in the case of Aids Law Project –vs- Attorney General & 3 Others [2015] eKLR held as follows;

“Section 24 of HAPCA does not meet the principle of legality which is component of the rule of law. The said section is vague and overbroad and lacks certainty especially with respect to the term “sexual contact”. It fails to meet the legal requirement that an offence must be clearly defined in law as one cannot know from the wording of the section what acts and omissions will make him or her liable. To retain that provision in the statute books would lead to an undesirable situation of the retention of legislation that provides for vague criminal offences which leave it to the court’s subjective assessment whether a defendant is to be convicted or acquitted….”

“In the result we find that section 24 of the HIV and AIDS Prevention and Control Act no 14 of 2006 is unconstitutional for being vague and lacking in certainty. The same is also overboard and is likely to violate the rights to privacy as enshrined under article 31 of the Constitution.”

49. From the above decision of the High Court it is therefore not in contention that section 24 of HAPCA was declared unconstitutional. We have been urged by the Claimant that the evidence submitted by the Respondent does not support the pleadings and in particular paragraph 9 of the statement of claim. It is instructive to reproduce the said paragraph 9.

“9. The claimant contends that the failure to disclose and deliberate transmission of HIV by the Respondent was in contravention of section 24 of the HIV and AIDS Prevention and Control Act.”

50. As clearly stated above section 24 of HAPCA has been declared unconstitutional. The question to answer at this juncture is; what is the effect of a law that has been declared unconstitutional? Is the same still good law? According to the online Free Dictionary, an unconstitutional law is a law that is against the Constitution. In Kenya a law that is against the Constitution is void as provided for under Article 2 (4) of the Constitution of Kenya, 2010 that;

“Any law, including customary law that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid.”

51. The High Court has also in the case of Law Society of Kenya vs Kenya Authority & Another [2017] eKLR dealt with the effect of a law being declared unconstitutional. Mativo J, held that;

“It is trite that an unconstitutional law is not law and actions taken pursuant to the unconstitutional law would out rightly be illegal. It follows that once a law has been declared unconstitutional it has no business remaining in the law books.”

52. This Tribunal is established under Article 169 (1) (d) of the Constitution of Kenya as a subordinate Court and by the doctrine of stare decisis, the decision of the High Court is binding upon this Tribunal. The invitation by the Claimant to adjudicate on a law that is no longer in our statute would tantamount to inviting this Tribunal to proceed on an illegality which we are reluctant to engage in.

53. It is, therefore, the finding of this Tribunal that section 24 of HAPCA having been declared unconstitutional, the Tribunal has no jurisdiction to determine whether the Respondent intentionally and willfully transmitted HIV to the Claimant as at the time the Claimant filed the Statement of Claim on 8th July, 2018, the said offence was no longer an offense known 6in law, the said section having been declared unconstitutional on 18th March, 2015 by a three Judge Bench of the High Court.

Issue 3

54. The Claimant pleaded that in the month of December, 2015 she realized that she was HIV positive when she went to Nairobi Women’s Hospital for antenatal care. The Claimant also produced results of the tests that had been conducted on her at Kiambu Medical Centre and Mater Hospital in which the Claimant had tested positive. On 2nd November, 2018 the Tribunal ordered the Claimant and the Respondent to go for a confirmatory test at Nyumbani Diagnostic Laboratories (Landmark Plaza), Karen. On 16th August, 2019 the results from Nyumbani Diagnostic Laboratories were presented before the Tribunal and confirmed that the Claimant was indeed HIV positive. The question that is left for the Tribunal is whether the Respondent disclosed the said status of the Claimant.

55. Section 22 of HAPCA provides that;

(22). Disclosure of information

(1) No person shall disclose any information concerning the result of an HIV test or any related assessments to any other person except—

(a) with the written consent of that person;

(b) if that person has died, with the written consent of that person’s partner, personal representative, administrator or executor;

(c) if that person is a child with the written consent of a parent or legal guardian of that child:

Provided that any child who is pregnant, married, a parent or is engaged in behaviour which puts other persons at risk of contracting HIV may in writing directly consent to such disclosure;

(d) if that person is unable to give written consent, with the oral consent of the person or with the written consent of the person with power of attorney for that person;

(e) if, in the opinion of the medical practitioner who undertook the HIV test, that person has a disability by reason of which the person appears incapable of giving consent, with the written consent, in order, of—

(i) a guardian of that person;

(ii) a partner of that person;

(iii) a parent of that person; or

(iv) an adult offspring of that person;

(f) to a person, being a person approved by the Minister undersection 16, who is directly involved in the treatment or counselling of that person;

(g) for the purpose of an epidemiological study or research authorized by the Minister;

(h) to a court where the information contained in medical records is directly relevant to the proceedings before the court or tribunal;

(i) if the person to whom the information relates dies, to the Registrar of Births and Deaths pursuant tosection 18of the Births and Deaths Registration Act (Cap. 149); or

(j) if authorized or required to do so under this Act or under any other written law.

(2) Subsection (1) shall not apply to a disclosure of statistical or other information that could not reasonably be expected to lead to the identification of the person to whom it relates. [Act No. 6 of 2009].

56. A clear reading of the above provision of the law shows that for one to disclose HIV status of an individual, one must acquire written consentto disclose such information. “Consent” is defined under section 2 of HAPCA as follows:-

“Consent” means consent given without any force, fraud or threat and with full knowledge and understanding of the medical and social consequences of the matter which the consent relates;

57. The Claimant pleaded that the Respondent disclosed her HIV status to several persons who included the Respondent’s wife one GN, CM, the General Manager of Topline Group of Companies and that the Respondent also on 27th September, 2017 to the CID officer at Kisii Police Station.

58. The Respondent denied disclosing the HIV status of the Claimant. The Respondent submitted that he came to know of the HIV status of the Claimant at Railways Police Station through a Corporal called Markero who took the Respondent aside and in the company of another Policeman called Brian Mose.

59. For a Claimant to succeed under section 22 of HAPCA, the Claimant must show that the Respondent disclosed the information to other persons other than the Respondent himself. The Claimant never called any of the persons she alleged that the Respondent disclosed the information to. The Respondent confirmed having heard of the Claimant’s HIV status at Railways Police Station through a Corporal called Markero and another one called Mose but denied having been the one who had informed them. It was incumbent upon the Claimant to call a witness to confirm that, indeed, they were aware of the Claimant’s HIV status and the said information was conveyed by the Respondent. Without this evidence, the Claimant would have not convinced this Tribunal that indeed the Respondent disclosed her HIV status to the said persons (see the case of BNN-vs- CMM (2019eKLR).

60. It is the finding of this Tribunal that the Claimant has not discharged the burden of proving that the Respondent indeed disclosed her status to other people as there was no evidence of a third party to collaborate the Claimant’s assertions. This claim must therefore fail.

Issue 4

61. The Claimant pleaded that on 18th July, 2015 the Respondent summoned the Claimant and compelled her to undergo a HIV test, in support of this assertion, the Claimant on cross examination confirmed that the Respondent had forcefully tested her for HIV by pricking her finger and that the Respondent had a kit. Thereafter, the Respondent availed the results to her which she never produced before the Tribunal. The Claimant clarified to the Tribunal that she did agree to the testing because according to the Claimant, “I was not afraid of the testing.” In further support of the claim for forceful testing, the Claimant produced at page 12 of the Claimant’s Bundle of Documents dated 11th July, 2018 the” Respondent’s sample of documents sent to the Claimant” which were photographs of a person flashing a pistol.

62. The Respondent denied the allegations of forceful testing and maintained that he did not know how to test and as such the allegations of forceful testing was “one of his words against the Claimant.”

63. Section 13(1) of HAPCA provides that;

“Subject to this Act, no person shall compel another to undergo an HIV test.”

64. In addition section 14 of HAPCA further provides that;

“Subject to sub section (2) no person shall undertake an HIV test in respect of another person expect with the informed consent of that other person.”

65. It is evident that section 13 of HAPCA prohibits compulsory testing of HIV. The operative word in this section is compeland according to the Black’s Law Dictionary, the word compelmeans “to induce, oblige, or coerce someone to do something.” In this case, the Claimant was allegedly tested by the Respondent because according to the Claimant, the Respondent had a family that he wanted to protect. The Claimant also testified that she waited for the results which the Respondent gave her. In thecircumstances, was the Claimant compelled to undergo HIV testing contrary to the provisions of Section 13 of HAPCA?

66. The Claimant herein knew that the Respondent was going to undertake a HIV test against her since the Claimant on cross-examination confirmed that the Respondent had a kit with him, waited for the results and according to the Claimant “was not afraid of testing”. The force that the Respondent used upon the Claimant was evidenced by photographs of the Respondent holding a gun. This was not controverted by the Respondent as not being the one. However the photos just show the Respondent with a gun and nothing more. The Claimant testified that the photographs were sent by the Respondent to her phone.

67. The question is “was this time during the testing or after?” This was not stated by the Claimant and mere photographs of the Respondent holding a gun cannot be evidence of violence. The same has to be contextualized. It is therefore the finding of this Tribunal that the Claimant has not established on a balance of probability that the Respondent “induced, obliged or coerced” the Claimant into taking the HIV test.

68. Furthermore, the Claimant testified that after the testing, the results of the test were given to her by the Respondent. The Claimant never produced the said results before the Tribunal. The Respondent denied having tested the Claimant for HIV. The question that then begs is whether the Claimant was really tested. It was incumbent upon the Claimant to produce the said test results that the Respondent had given to her. Without the results, it would be difficult for the Tribunal to hold that indeed a test was conduct on the Claimant. One wonders why the Claimant failed to produce the results and yet she had according to her own testimony been given by the Respondent. The Claimant has not discharged the burden to proof that a test was carried out.

69. This section provides that no HIV testing cannot be done without the informed consentof the person who is being tested. Informed consent means that a consent that is given while someone is aware of the risks involved, the consequences and the alternatives available. In the instant case, the Claimant has claimed that the forceful testing conducted on her by the Respondent on 18th July, 2015 contravened section 14 of HAPCA. On clarification by the Tribunal the Claimant stated that;

“She did agree to the testing because according to the Claimant, she was not afraid of the testing.”

70. From the admission by the Claimant as to why she agreed to testing, it means that she had informed consent. She was aware of the risks as evidence from her testimony that she had nothing to fear. This fact coupled with the holding that the Claimant had not discharged the burden of whether a test was conducted on her leads this Tribunal to the holding that this claim also fails.

Issue 5

71. The Claimant pleaded that the Respondent on 18th July, 2015 recorded the negative result of the Claimant together with other assessments that the Respondent had done on the Claimant as part of his statistics and thus contravened the provisions of section 20 (2) of HAPCA.

72. Save for pleading the same in the Statement of Claim, the Claimant never adduced any evidence in that regard. Section 20 (2) obligates a person not to record, collect, transmit or store records, information or forms in respect of HIV tests or related medical assessments of another person except in accordance with the privacy guidelines prescribed under section 20 (1). It is worth noting that no Privacy Guidelines have been developed under section 20 (1) of HAPCA. It should also be noted that Section 22 of HAPCA does not only prohibit the disclosure of HIV test of a person but also any related assessments to any other person.

73. The Claimant has pleaded that the Respondent recorded the results together with other assessments as part of his statistics. In her testimony, the Claimant never pursued this claim further. The Respondent never commented on the issue of statistics but denied having tested the Claimant. The same seemed to have been abandoned. Be it as it may,

74. the Tribunal has found that the Claimant had not discharged the burden of whether a test was conducted on her leads us to the finding that the provisions of section 20 (2) cannot be contravened without first proving that a test was indeed carried out. This claim, therefore, fails.

Determination

75. Having considered all the pleadings, the evidence on the record and having analyzed all the issues, it is the finding of this Tribunal that the Claimant has not proved her claim to the reasonable standards and hence failed to discharge her burden of proof, and as such, the Claim must fail.

76. We, therefore, dismiss this cause and noting the circumstances of this cause, each party shall bear his/her own costs. It is so ordered.

77. Before concluding, it is important to make an observation. The absence of Privacy Guidelines as contemplated by section 20 of HAPCA gravely undermines the objectives of HAPCA as provided for under section 3 because in the absence of the said guidelines, recording, collecting, transmitting or storing records or any other information of HIV results or status of a person will be difficult, especially in this era of technological use, without violating section 18 and 20 of HAPCA, while at the same time appreciating the fact that in some circumstances it would be necessary to share such information. We, therefore, recommend that the Cabinet Secretary in charge of Health do hasten the development the said guidelines as contemplated under section 20 of HAPCA.

Dated and Signed at Nairobi this 29th day of November, 2019.

Delivered at Nairobi this 29th day of November, 2019.

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HELENE NAMISI (CHAIRPERSON)

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MELISSA NGANIA

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TUSMO JAMA

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J.T. TOROINET SOMOIRE

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DR. MARYANNE NDONGA

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ABDULLAHI DIRIYE

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DOROTHY JEMATOR