[2020] KEHAT 91 (KLR)

REPUBLIC OF KENYA

IN THE HIV AND AIDS TRIBUNAL AT NAIROBI

HAT CAUSE NO.21 OF 2018

MM........................................................................................CLAIMANT

VERSUS

MNM...........................................................................1ST RESONDENT

NM...........................................................................2ND RESPONDENT

JUDGMENT

1. The Claimant has filed a Statement of Claim dated 9th March 2020 against the 1st and 2nd Respondents seeking, inter alia:-

a). Compensation in form of damages for breach and violation of his rights to health, privacy and confidential information

b). Compensation in form of damages for psychological and emotional pain and stigma

c). Compensation for unlawful and illegal disclosure of his HIV status by the Respondents without his consent

d).Cost of this suit

e). Any other or further relief that this tribunal may deem right and just to grant.

2. In Response to the Statement of Claim, the Respondents filed their Statement of Defence on 9th June, 2020.

3. Parties to this matter presented their respective cases and evidence vide an oral hearing held on 18th June 2020 as well as written submissions filed on 28th June 2020 and 10th July 2020 for the Claimant and the Respondents, respectively.

The Claimant’s Case

4. The Claimant is a [particulars withheld] and is living and working in his employer’s house in Runda. He alleged that he filed the present suit because someone revealed his HIV status. He averred that sometime in August 2018, in the evening, after his dayshift, the 2nd Respondent visited him in his house and informed him that while he was at work, some people gained entry into his house and stole the sum of Kshs.80,000/= or thereabout.

5. The Claimant stated that the 2nd Respondent further informed him that the 1st Respondent told him that the Claimant was taking ARVs. The Claimant was shocked by the 2nd Respondent’s statement and he asked him to confirm if the information he had disclosed was true. The 2nd Respondent confirmed it was true. He further stated that the 1st Respondent had laughed at him for being robbed and it is at that point that she disclosed that the Claimant was taking ARVs.

6. The Claimant further averred that he was alone in his house when the 2nd Respondent informed him that his money amounting to Kshs.80,000 or thereabout had been stolen and that the 2nd Respondent had reported the matter to the Police Station.

7. The following evening, the Claimant avers to have left for work and upon returning in the morning he found the 1st Respondent at the common tap within their compound where all the parties herein were residing. He proceeded to ask the 1st Respondent why she had disclosed his HIV status to the 2nd Respondent. The Claimant stated that the 1st Respondent responded by saying that the information about the Claimant’s HIV status came from outside their compound and that everyone was aware of his HIV status.

8. The Claimant further stated that the 1st Respondent was a caretaker of the said premises where there lived around 9 to 10 people. He had himself lived there for over two (2) years and that he never had any disputes with any of the tenants during the said tenancy period.

9. The Claimant averred that he was informed of his HIV status back in the year 1998 and had never disclosed it to anyone other than his family members.

10. The Claimant stated that the disclosure caused him emotional distress that forced him to go for counselling. He further confirmed that he filed this suit because he wanted to kill himself. He further stated that he has been following up on this case since 2018 to ensure that justice was served.

11. On cross-examination, the Claimant further indicated that when he approached the 1st Respondent on whether she had told the 2nd Respondent about his status, she stated that taking ARVs was not a bad thing. The Claimant inquired from the 1st Respondent where she got the information about his status and she said “ Hio maneno imetoka nje”.

12. The Claimant further stated that two days thereafter, the 1st Respondent threatened to evict the Claimant of the rented premises but he was not evicted.

13. The Claimant further stated that he noticed his neighbours started giving him an odd look and one week later, he decided to move out the rented premises.

14. Upon re-examination, he maintained that he was alone when the 2nd Respondent came to his house and as such he could not bring any witnesses to corroborate his evidence.

1st Respondent’s case.

15. The 1st Respondent stated that she sells clothes for a living. She confirmed that she knows the Claimant as one of their tenants and further that they used to live in the same compound.

16. She denied that she ever disclosed the HIV status of the Claimant to anyone. She further stated that she did not know that the Claimant was taking ARVs. She further stated that she is not close to the 2nd Respondent and further that she did not disclose the Claimants status to the 2nd Respondent.

17. The 1st Respondent stated that she has never discussed anything with the Claimant and further that she did not have any knowledge of the Claimant’s status prior to being served with Pleadings pertaining this matter.

18. She stated that she was not the caretaker of the aforementioned premises and that her role was to link potential tenants to the Landlord. As a result of this, she indicated as having no authority to evict tenants from the said premises.

19. The 1st Respondent indicated that she never had any disputes with the Claimant and she further denied having any knowledge on what either happened to the Claimant or his money. She confirmed that there existed common areas which were shared by all the tenants which included toilets and showers.

2nd Respondent’s case

20. The 2nd Respondent confirmed that he resided in the same compound as the Claimant and the 2nd Respondent testified that he lived in the same plot with the Claimant where the 1st Respondent was a caretaker.

21. He confirmed that it was true that the sum of Kshs. 82,000 was stolen by some unknown persons and that he reported the matter to the police and the suspects were arrested and charged by the police. He however insisted that he did not tell anyone of this incidence.

22. He denied ever having any discussion with the 1st Respondent. He further denied that he met the Claimant in his house. He denied disclosing the Claimant’s status. He confirmed the existence of common areas within the compound which included the toilets and the bathroom.

Issues for Determination

23. From the parties submissions the issues for determination are as follows:

a) Whether the Respondents disclosed the Claimant’s HIV status.

b) Whether there was breach of confidentiality from the unlawful disclosure of the Claimant’s HIV status by the Respondents.

c) Whether the Claimant is entitled to compensation for emotional and psychological distress.

d) Who shall bear the cost of the suit.

a) Whether the Respondents disclosed the Claimant’s HIV Status.

24. The Claimant submitted that he met with the 2nd Respondent who informed him that some unknown persons stole the sum of Kshs.80,000/=from his house. In his testimony, the 2nd Respondent admitted that indeed it was true that some unknown persons gained entry into his house and stole the total sum of Kshs.82,000/-.

25. In his cross examination the 2nd Respondent maintains that no one knew about the loss of the money as he did not tell anyone about the incident. He further states that he had never had a dispute with the Claimant.

26. From the foregoing, the following questions come to the fore:- How did the Claimant know the 2nd Respondent’s money was stolen? How did the Claimant know the exact sum of money that was stolen?

27. The Tribunal is cognizant of Section 6 of the Evidence Act which stipulates the facts which though are not in issue are so connected as to form part of the transaction. The fact that the monies stolen is not in issue but it was admitted by the 2nd Respondent to have been stolen from him confirms that there was a conversation between the Claimant and 2nd Respondent. This Tribunal, therefore, infers from the said conversation that the Claimant’s HIV status formed part of the discussion by the 2nd Respondent and the Claimant. Section 6 of the Evidence Act states as follows:

“Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time and place or at different times and places.

28. Based on our evaluation and the evidence tendered by the parties on this issue and having had the benefit of studying each witness, we conclude that the 2nd Respondent met with the Claimant and gave him the information pertaining to the stolen money. In ordinary, practical and reasonable circumstances, it is almost impossible that the Claimant formulated a story that matches exactly what happened to the 2nd Respondent more so about the exact amount of money stolen. It is evident that the 2nd Respondent met with the Claimant and had a discussion.

29. Having therefore found that indeed the Claimant proved that there was a conversation between himself and the 2nd Respondent, the burden of proof shifted to the Respondents to prove that indeed they did not disclose the Claimant’s status.

30. This will now bring us to the second limb which is to establish whether the 1st Respondent disclosed the Claimant’s status to the 2nd Respondent and whether the 2nd Respondent’s conversation with the Claimant amounted to disclosure.

31. Therefore, before we proceed, it is prudent to first expound on what disclosure entails. The Black’s Law Dictionary defines the term disclosure as follows:

“To make known, a revelation or the uncovering of a thing that is kept hidden.”

32. To contextualize this term Section 22 of the HIV and AIDS Prevention and Control Act, 2006, (hereinafter referred to as HAPCA) is of relevance. It provides as follows.

“ (1) No person shall disclose any information concerning the result of an HIVtest 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) ……………….”Emphasis ours

33. The Tribunal has established that indeed there was a conversation between the Claimant and the 2nd Respondent. That conversation entailed a discussion of the Claimant’s HIV status. The question, therefore, is whether by informing the Claimant of his HIV status, the 2nd Respondent’s conduct amounted to disclosure.

34. According to Section 22(1) of HAPCA disclosure would crystallize if the revelation is made to any other person without the consent of the concerned individual. In our considered view, any other person under Section 22 of the HAPCA does not include the person whose status is said to have been disclosed.

35. Therefore, since the Claimant’s status was already known to him and further because he is not any other person under Section 22 of HAPCA, the 2nd Respondent’s conduct did not amount to disclosure in so far as Section 22 of HAPCA is concerned.

36. As regards the 1st Respondent, the Claimant stated the 2nd Respondent informed him that indeed it was the 1st Respondent who told him that the Claimant was taking HIV medication. The Claimant also approached the 1st Respondent and she did not deny that she was aware of his HIV status and infact she retorted that “hio imetoka nje”meaning that the information had come from outside their shared compound.

37. Furthermore, from the evidence tendered, the 2nd Respondent did not harbor any resentment against the 1st Respondent or the Claimant. It is therefore difficult to fathom that the 2nd Respondent would maliciously accuse the 1st Respondent of disclosing the Claimant’s status.

38. The 1st Respondent denied all the allegations presented before her and failed to take into account that the burden of proof had shifted to her. She did not discharge this burden and as such the tribunal finds that mere denials did not aide her defense.

39. Having found that the Claimant had proved his case and that the Respondents did not discharge their burden of proof, we find that the 1st Respondent’s action of informing the 2nd Respondent about the Claimants health status amounted to disclosure. The 2nd Respondent was not aware of the Claimants status prior to being informed by the 1st Respondent who thus acted in contravention with the Section 22 of HAPCA.

b) Whether there was breach of confidentiality from the unlawful disclosure of the Claimant’s HIV status by the 1st Respondent.

40. The Claimant contends that the disclosure of his HIV status by the Respondents violates his rights to privacy and confidentiality under Section 22 of the HIV and AIDS Prevention and Control Act, 2006.

41. The Courts and this Tribunal have further expounded the application of Section 22 of the HAPCA. In the case of SNW v Asha Gulam [2019] eKLR,this Tribunal quoted the Constitutional Court case ofNM and Others v Smith and another (2007) ZACC 6, where the Court held that;

“… it was imperative and necessary that all private and confidential medical information be protected against unauthorized disclosure…”

The Tribunal then stated as follows:

“We agree with the exposition of the law above and add that Section 22 of HAPCA must be understood in this context – it protects against the unnecessary revelation of information relating to the HIV status of a person. Such information forms part of a person’s private affairs, which disclosure can potentially cause mental distress and injury to a person and there is thus need to keep such information confidential.”

42. The right to privacy in relation to a person’s HIV status protects the individual from the risk of stigmatization, discrimination and rejection by family, friends and the community which in the end potentially causes mental distress considering that HIV infection is associated with sexual and drug related activities. The disclosure of information concerning a person’s HIV status or any information that directly identifies a person to whom HIV test/status relates is therefore prohibited and violates the person’s confidentiality as stipulated under Section 22 of HAPCA.

43. In the case of SNW v Asha Gulam [2019] eKLRthe court held that disclosure of the Claimant’s HIV status by the Respondent was wrongful and unlawful and amounts to violation of provisions of Section 22 of the HIV and AIDS Prevention Control Act. In doing so, the court stated as follows:

“…Section 22 of the Act has endeavored to protect the disclosure of a person’s HIV status or any other related information in the aforesaid manner and the Respondent’s unwarranted disclosure of the same therefore very clearly violates the Claimant’s right to privacy.”

44. From our findings in relation to disclosure, and the evidence adduced before the tribunal, indeed the 1st Respondent disclosed the Claimant’s HIV status. The act of disclosing the Claimant’s status amounted to a breach of his confidentiality as stipulated in Section 22 of HAPCA.

c) Whether the Claimant is entitled to compensation for emotional and psychological distress.

45. Having established that there was breach of confidentiality of the Claimant’s health status, the Claimant is entitled to compensation. In the aforestated case of SNW v Asha Gulam [2019] eKLR,upon establishing unwarranted disclosure of the Claimant’s HIV status violated the provisions ofSection 22 of the HIV and AIDS Prevention and Control Act, 2006, the court awarded damages of upto Kshs.250,000 to the Claimant.

46. In order for a Claimant to establish a prima facie case of emotional distress, he or she must prove that the Respondent owed a duty of care which was breached and as a result of which, he or she suffered emotional distress.

47. In the case of MKK v CWN [2016] eKLR the court noted the threshold in establishing psychological suffering and stated 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.”

48. The court further appreciated the challenge faced by courts and tribunals as follows:

“Recovery of damages for mental or psychological anguish however present numerous challenges to courts and tribunals: The difficulties associated with proof of causal relationships between the alleged mental distress and the defendant’s actions; the ease with which claimants can feign mental distress or anguish; concerns over the potentials for spurious or vexatious litigations, and the hesitancy to punish defendants for indirect and possibly unintended, consequences of their actions”

49. The Claimant herein indicated that were it not for the option to file a suit out of the disclosure, he would have killed himself because of the psychological and emotional harm caused to him. He infact had to seek counseling services as a result of the action by the Respondents. He further testified that he moved out of the shared compound because he was worried he would be evicted by the 1st Respondent and further because his status was now known by other tenants.

50. The 1st Respondent confirmed that indeed the Claimant moved out of the shared premises without informing her. This is an indication that indeed the Claimant moved out due to the stigma associated with HIV. We further confirm that indeed the Claimant must have endured mental distress that prompted him to move out of the shared premises.

d) Who shall bear the cost of the suit.

It is trite law that costs follow the event. However, in the circumstances of this case, noting that all the parties herein were neighbours and friends, each party shall bear its own costs.

Determination

i) On the 1st issue of whether there was disclosure of the Claimant’s HIV status by the 2nd Respondent, we find that the 2nd Respondent did not disclose the Claimant’s status as per Section 22 of HAPCA. This notwithstanding, we find that there was unwarranted disclosure of the same by the 1st Respondent to the 2nd Respondent which violated the provisions of Section 22 of the HIV and AIDS Prevention and Control Act, 2006.

ii) On the 2nd issue as to whether there was breach of confidentiality from the unlawful disclosure of the Claimant’s HIV status by the 1st Respondent we find that there was breach of the Claimant`s confidentiality under Section 22 of HAPCA.

iii) On the 3rd issue of whether the Claimant is entitled to compensation for emotional and psychological distress, we find in favour of the Claimant. Judgment is, therefore, hereby entered for the Claimant against the 1st Respondent for a total sum of Kenya Shillings Two Hundred and Fifty Thousand (Kshs. 250,000/=)as compensation for emotional and psychological distress arising from the disclosure of his HIV status.

iv) Each party shall bear his/her own costs.

DELIVERED AT NAIROBI THIS 24TH DAY OF JULY 2020.

HELENE NAMISI (CHAIRPERSON) ……….…………………………..

MELISSA NG’ANIA …….………………………….......

TUSMO JAMA ……………………………………

J.T. TOROINET SOMOIRE ……………………………………

DR. MARYANNE NDONGA ……………………………………

ABDULLAHI DIRIYE ……………………………………

DOROTHY JEMATOR ……………………………………