[2024] KEHAT 166 (KLR)

NK v RM (Tribunal Case 012 of 2023) [2024] KEHAT 166 (KLR) (14 February 2024) (Judgment)

Neutral citation: [2024] KEHAT 166 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 012 of 2023

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

February 14, 2024

Between

NK

Claimant

and

RM

Respondent

Judgment

1. This was a Complaint filed by the Claimant vide a statement of Claim dated 7th June 2023 alleging that the Respondent had publicly disclosed her HIV status at her work place at [Particulars withheld] area Meru town.

2. The claimant avers that on 27th December, 2021 while she was going around working at her place of work, the Respondent abused her in front of her clients and customers by publicly stating that she was HIV positive thereby disclosing her HIV status to the public.

3. She averred that the Respondent publicly uttered, shouted and stated the following words;‘Uko na HIV Aids inakufanya ukonde hadi unapelekwa na upepo’

4. It is the Claimant’s case that this disclosure happened in broad day light in the presence of many people who had assembled to purchase products she was selling at her business premises.

5. According to the Claimant, this disclosure has affected her by members of the public discriminating against her especially her friends, customers and clients who used to frequent her place to buy her fast-food products as well as other members of the public. This, she says, has caused her great psychological harm as well as lowered her dignity and self-esteem.

6. Despite servicee, Claim was not defended by the Respondent.

7. This matter came up for hearing on the 18th January, 2024 where the Claimant adopted her witness statement dated 7th July, 2023 as her evidence in chief. On cross examination by this Tribunal whether she had witnesses who heard the Respondent disclose her HIV status, the Claimant stated that she did not have a witness as most of the witness’s moved town.

8. Having closed her case, the Claimant filed her written submissions dated 24th January, 2024 filed by the firm of SOW Advocates LLP urging this tribunal to find in her favour that the Respondent disclosed her HIV status in violation of her rights pursuant to section 27(a) ofHIV&AIDSPrevention and Control Act.

9. Firstly, we wish to point out that this Tribunal did not receive any Notice of Change of advocates from the law firm of Chris David & Co. Advocates the initial advocates for the Claimant who filed the statement of claim dated 7th June, 2023 to now SOW Advocates LLP that are now purportedly on record for the Claimant and filing written submissions dated 24th January, 2024. The Claimant should therefore regularize this position with this Tribunal’s secretariat.

10. Secondly, we have read the Claimant’s written submission in which she has dedicated a couple of paragraphs urging us to find in her favour despite her not calling any witness to corroborate her evidence in court. Being aware of this Tribunal’s previous judgments where this Tribunal has held that a single witness is not enough to prove disclosure, the Claimant has strongly urged us to find that her demeanor and conduct were clear and came out as truthful to enable this Tribunal to find in her favour. She relied on a criminal decision of the High Court in AHMvsRepublic [2022] KEHC 12773 (KLR) to buttress her point

11. Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act provides:“No person shall disclose any information concerning the result of a HIVtest or any related assessments to any other person except with the written consent of that person”

12. For a claim of unlawful disclosure to be allowed, the Claimant must show that the Respondent disclosed the Claimant’s status or any related assessments to other parties without the written consent of the Claimant. This Tribunal has previously held in the case ofMM v MNM & another[2020] eKLRAccording to Section 22(1) of HAPCAdisclosure 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.

13. We have held previously that for a Claimant to succeed with a claim of disclosure, the Claimant must call witnesses who heard, or were present when the disclosure happened. It is therefore not possible for this tribunal, as we have been called upon to by the claimant, to find that there was a disclosure without corroborative evidence of a live witness who witnessed the disclosure. To do so, we will be elevating street talk as adequate corroborating evidence before this Tribunal.

14. Interestingly, the Claimant pleaded and testified before us that the disclosure happened in the presence of her clients and customers. She further alleged that the clients, because of this disclosure, stopped coming to her business premises. We wonder why the Claimant found it impossible to call even one witness to corroborate her evidence.

15. Having said this, the mere fact of calling 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. It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 and 108 of the Evidence Act provide as follows:“(1)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 exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

16. In this instance, the Claimant did not call any witness to assist the Tribunal in piecing the Claimants’ narrative together. Nonetheless, we reiterate that the burden of proof herein lies on the Claimant, who, in this instance, has not discharged it to the required standard. Thus, we find that this case fails for lack of discharging the evidential burden of prove.

17. In conclusion, this Tribunal finds that the Claimant has not proved her case against the Respondent. The suit by the Claimant against the Respondent is hereby dismissed with no orders as to costs.Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF FEBRUARY, 2024. Delivered virtually in the presence of:HON. CAROLYNE MBOKU - (CHAIRPERSON) …………………………………………HON. WALTER.G. JAOKO (PROF.) - (MEMBER) ………………………………………HON. NELSON W. OSIEMO - (MEMBER) …………………………………………….HON. BRIAN.O. YOGO - (MEMBER) ………………………………………………….HON. SOLOMON .K. MUSANI (DR.) - (MEMBER) ………………………………….HON. JANE .N. NGOIRI - (MEMBER) …………………………………………….…HON. IRENE .N. MUKUI (DR) - (MEMBER) …………………………………………….……………………………………… Advocate for the Claimant.…………………………… for the RespondentYasmin Mohammed ……………… Court Assistant