[2023] KEHAT 399 (KLR)

PMM v BW (Tribunal Case 046 of 2022) [2023] KEHAT 399 (KLR) (11 August 2023) (Judgment)

Neutral citation: [2023] KEHAT 399 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 046 of 2022

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

August 11, 2023

Between

PMM

Claimant

and

BW

Respondent

Judgment

1. The claimant instituted this claim vide a statement of claim dated September 8, 2022 primarily seeking :a.An order against the respondent restraining him from disclosing the claimant’s status, discriminating, stigmatizing and/or harassing the claimant.b.A declaration that the respondent infringed the rights of the Claimant under section 22 and 23 of the HIV and AIDS Prevention and Control Act.c.Damages for the impairment of dignity, emotional, physical and psychological suffering.d.Special damages of Kes 3,000 for counselinge.Costs of the suit.

2. The respondent was served with summons to enter appearance and the statement of claim on September 15, 2022 as evidenced by the affidavit of service dated October 28, 2022 sworn by Loise Muthoni Nyoike but did not enter appearance.

3. The tribunal gave directions for the case to be listed for hearing on May 5, 2023. The respondent was also served with the hearing notice as per the affidavit of service dated April 28, 2023 sworn by Francis Omire but did not appear. The claim is therefore unopposed.

The Claimant’s case 4. Claimant adopted his statement dated September 8, 2022 in evidence and testified that he and the respondent are members of ODM Team Matungu Sub County which is a WhatsApp group with not less than 140 members. The claimant’s phone number is +2547xxx36 user name P.M while the respondent’s number is +2547xxx02 user name Bashir Wafula.

5. On August 28, 2022 the claimant and the respondent while engaged in a discussion had a disagreement and the respondent responded to the claimant’s comment on the WhatsApp group by stating:“Respect is a 2 way traffic, respect hon. Were too, I do respect you, I state that your character depicts HIV AIDS Victim, period. “On being told to apologize for making the statement, the respondent responded by stating“Apologize ya ujinga, respect your age, you behave as if your HIV AIDS, and soon to affirm”

6. The claimant testified that the above captioned statements allege that he has HIV and as a result of the comment, he has faced mockery, discrimination, psychological torture and has undergone counseling at Amani Counseling.

The Respondent’s case 7. The respondent was served with summons to enter appearance and the statement of claim on September 15, 2022 and was equally informed of the hearing date of May 5, 2023 as evidenced by the filed affidavit of service sworn by Loise Muthoni Nyoike and Francis Omire, respectively, but he failed to enter appearance and defend the Claim. The Claim is therefore unopposed and deemed admitted by the respondent in line with provisions of order 2 rule 11 of the Civil Procedure Rules which provides:Subject to sub rule (4), any allegation of fact made by a party in his pleading shall be deemed to be admitted by the opposing party unless it is traversed by that party in his pleading or a joinder of issue under rule 10 operates as a denial of it.Sub rule (4) thereof provides:Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be deemed to have been traversed unless specifically admitted.

8. Even though the claim is unopposed and deemed admitted by the Respondent, the claimant has pleaded damages for stigma and psychological trauma and as such, the claim has to go to trial and the claimant is expected to prove the allegations on a balance of probabilities. In the case of Kenya Power And Lighting Company LtdvNathan Karanja Gachoka &another [2016] eKLR, Justice Mulwa held:I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove his case too upon a balance of probability whether the evidence is challenged or not”

Issues for Determination 9. The tribunal having considered the statement of claim, the evidence adduced by the claimant and submissions filed considers the following as the issues to be determined:-1. Whether there was unlawful disclosure of the claimants’ HIV status to third parties by the respondent?2. Whether the claimant suffered stigmatization and/or discrimination as a result of the respondent’s statements?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. The term Disclosure is not defined in the HIV and AIDS Prevention and Control Act. However, the same is defined in the Black’s Law Dictionary as follows:“To make known, a revelation or the uncovering of a thing that is kept hidden.”To contextualize this term 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 HIV test or any related assessments to any other person except with the written consent of that person”HIV test results or related assessment are therefore private and should not be released to third parties without the written consent of the person. Failure to respect this privacy is a violation of the person’s right to privacy.

11. The test for determining whether there is a violation of the right to privacy was established in Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR, where Justice Lenaola quoted with approval the Constitutional Court of South Africa in the case of Mistry v Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC) where it was stated that:“In order to determine whether there is a violation of the right to privacy, the Court ought to take into account the fact;i.whether the information was obtained in an intrusive manner,ii.whether it was about intimate aspects of an applicants’ personal life;iii.whether it involved data provided by an applicant for one purpose which was then used for another purpose andiv.whether it was disseminated to the press or the general public or persons from whom an applicant could reasonably expect that such private information would be withheld”.

12. With these principles in mind, we move to determine whether there is a violation of the claimant’s right to privacy in the present instance. The claimant asserts that the phrase “Respect is a 2 way traffic, respect hon. Were too, I do respect you, I state that your character depicts HIV AIDS victim, period.“ implies that he has HIV and is therefore an unlawful disclosure of status.The meaning of Depict in the Oxford dictionary is “to describe something in words, or give an impression of something in words or with a picture.” The synonym for depict is represent, portray, show or describe. The phrase in its literal sense means that the character of the claimant represents that of a person living with HIV. We find that the same is not a disclosure of the HIV status of the claimant to third parties as the issue is character and not HIV test results of the claimant. The phrase does not out rightly disclose the status of the claimant but rather equate his character to that of a person living with HIV.We find the statement to be offensive as it is discriminatory against persons living with HIV. However, the sense in its strict sense does not disclose the HIV status of the Claimant or meet the principles enumerated above for the violation of right to privacy. This claim therefore fails.

Whether the Claimant suffered stigmatization and/or discrimination as a result of the Respondent’s statements? 13. People living with HIV have been subjected to systemic disadvantage and discrimination. The society has not fully embraced people living with HIV. Prejudices and stereotypes against people living with HIV still persist. Consequently, many of them opt to keep their HIV status secret for fear of prejudice. In many instances, those whose HIV status have been revealed are shunned from the society, denied social services and negatively discussed in their social circles leading to psychological suffering.

14. The claimant testified that the WhatsApp group comprised of his relatives, friends, neighbors and acquaintances that have resorted to mockery and talking behind his back in other WhatsApp groups as a result of which he cannot freely express himself in other social forums. Subsequently, he has suffered emotionally and psychologically and is currently undergoing counseling at Amani Counseling Center and Training Institute, and produced a receipt of Kes. 3,000.

15. 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.”

16. In view of the foregoing, the claimant having mistakenly believed that the WhatsApp statement was a disclosure of his HIV status must have undergone some psychological trauma and undergone counseling as evidenced by the receipt from Amani Counseling Center and Training Institute. The tribunal sympathizes with the claimant for his mistaken view. However, having found that the statement written in the WhatsApp group does not disclose the claimant’s HIV status to third parties, then this claim must fail too.

Whether the Claimant is entitled to the reliefs sought? 17. 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 his claim to the requisite standards.This cause is, therefore, dismissed.Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF AUGUST, 2023. CAROLYNE MBOKU (Chairperson)………………………………………………W.G. JAOKO (Prof.) (Member)………………………………………………N.W. OSIEMO (Member)………………………………………………B.O. YOGO (Member)………………………………………………J.N. NGOIRI (Member)………………………………………………S.K. MUSANI (Dr.) (Member)