[2023] KEHAT 373 (KLR)
The Tribunal found that the Respondent, by posting a message in a WhatsApp group of 344 members referencing the Claimant's HIV status, disclosed sensitive health information without the Claimant's consent, in direct contravention of sections 22 and 23 of the HIV and AIDS Prevention and Control Act. The evidence...
Source-derived case information.
- Citation
- [2023] KEHAT 373 (KLR)
- Parties
- Claimant: PMM; Respondent: EA
- Court
- HIV and AIDS Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 047 of 2022
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- claim allowed in full; judgment for the claimant
- Judges
- Carolyne Mboku, W.G Jaoko, NW Osiemo, B.O Yogo, S. Musani, J.N Ngoiri
- Legal Topics
- Hiv Status Disclosure, Privacy Rights, Psychological Harm, Damages for Discrimination
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
PMM
Claimant
EA
Respondent
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the Respondent unlawfully disclosed the Claimant's HIV status without consent in violation of the HIV and AIDS Prevention and Control Act.
- 2 Whether the Claimant is entitled to damages for impairment of dignity, emotional, physical and psychological suffering as a result of the disclosure.
- 3 Whether the Respondent should be restrained from further disclosure, discrimination, stigmatization or harassment of the Claimant.
Ratio Decidendi
The Tribunal found that the Respondent, by posting a message in a WhatsApp group of 344 members referencing the Claimant's HIV status, disclosed sensitive health information without the Claimant's consent, in direct contravention of sections 22 and 23 of the HIV and AIDS Prevention and Control Act. The evidence presented by the Claimant, including the WhatsApp message and proof of counseling expenses, was uncontroverted as the Respondent failed to file any response or appear in the proceedings. The Tribunal held that the disclosure led to mockery, discrimination, and psychological suffering for the Claimant, warranting both general and special damages. The Tribunal further found that the...
Court Disposition
claim allowed in full; judgment for the claimant
Orders
- Declaration that the Respondent disclosed the HIV status of the Claimant without consent contrary to Section 22 and 23 of the HIV and AIDS Prevention and Control Act.
- The Respondent is restrained from disclosing the Claimant’s status, discriminating, stigmatizing and/or harassing the Claimant.
Full Case Text
Judgment text and source record
27 paragraphs
PMM v EA (Tribunal Case 047 of 2022) [2023] KEHAT 373 (KLR) (Civ) (29 June 2023) (Judgment)
Neutral citation: [2023] KEHAT 373 (KLR)
Republic of Kenya
In the HIV and AIDS Tribunal
Civil
Tribunal Case 047 of 2022
Carolyne Mboku, Chair, W.G Jaoko, NW Osiemo, B.O Yogo, S. Musani & J.N Ngoiri, Members
June 29, 2023
Between
PMM
Claimant
and
EA
Respondent
Judgment
Introduction 1. The Claimant instituted this Claim vide a statement of claim dated 8th September 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 violated 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 sufferingd.Special damages of Kes. 3,000 for counselinge.Costs of the suit.
2. The Claimant adopted his statement in evidence and testified that he and the Respondent are members of [ParticularsWithheld] youth forum in Kakamega which has a whatsapp group with 344 members. The Claimant’s phone number is +2547xxxx user name PM while the Respondent’s number is +2547xxxx user name Hon. A.
3. On 12th August 2022 the claimant and the Respondent while engaged in a political discussion had a disagreement and the Respondent responded to the claimant’s comment on the whatsapp group by stating:“ukimwi yako inakaribia stage 4, the most lethal one, where your mental state is affected. Soon you will die. Kumeza ARV for 30 years si mchezo, you are remaining with at most 5 years fanya bidii ukuwe wakati nitakomboa mayoni. I’ll improve our health facilities in that you’ll be able to access free hi tech treatment for AIDS delivered at your door step ndio uwache kuenda kumeza dawa kiambu penye watu hawakujui”
4. The Claimant testified that as a result of the comment, he faced mockery, discrimination and psychological torture and has undergone counseling at Amani Counseling.
5. The Responded did not file a response denying the claimant’s claim despite being aware of the same. The Claimant filed an affidavit of service dated 28th October 2022 sworn by Loise Muthoni Nyoike a licensed process server who averred that she served the Respondent with the summons and claim on 15th September 2022. The Respondent was equally served with the hearing notice informing him that the case was scheduled for hearing on 5th May 2023 pursuant to the affidavit of service filed in court on 3rd May 2023. The claim is therefore un opposed and deemed admitted by the Respondent in line with provisions of Order 2 rule 11 of the Civil Procedure Rules.
Legal Analysis 6. Section 22 (1) (a) of HIV and AIDS prevention and control Act provides:No person shall disclose any information concerning the results of an HIV test or any related assessment to any other person except with the written consent of that person.
7. The tribunal has considered the pleadings and the evidence of the Claimant all of which are uncontroverted. The Claimant produced before the tribunal an attempted mpesa transaction showing that telephone number +2547xxxx belongs to the Respondent and a screen shot of the comment made by the Respondent touching on the Claimant’s status whether real or perceived. The whatsapp group was made up of 344 members who undoubtedly read the comment. The Claimant testified that he did not disclose his status to the Respondent or authorized him to disclose his status.
8. The Claimant further testified that as a result of the disclosure he faced mockery, discrimination and psychological torture and was undergoing counseling at Amani Counseling where he paid kes. 3,000.
9. The Claimant has proved his case on a balance of probabilities as is required in cases of civil nature and is therefore entitled to protection of his rights as envisaged under section 22 and section 23 of the HIV and AIDS Prevention and Control Act.
Reliefs 10. In the premises, the tribunal hereby grant the following orders:1. The Respondent disclosed the HIV status of the Claimant without his consent contrary to the provisions of Section 22 and 23 of the HIV and AIDS Prevention and Control Act.2. The Respondent be and is hereby restrained from disclosing the Claimant’s status, discriminating, stigmatizing and/or harassing the Claimant.3. Damages for unlawful disclosure of the Claimant’s HIV status at Kes. 350,0004. Damages for the impairment of dignity, emotional, physical and psychological suffering at kes.500,0005. Special damages of Kes. 3,0006. Costs of the suit.
11. Judgment accordingly.
DATED AND SIGNED AT KISUMU THIS 29TH DAY OF JUNE 2023. DELIVERED AT KISUMU THIS THIS 29TH DAY OF JUNE 2023. HON. CAROLYNE MBOKU (CHAIRPERSON) ...............HON. W.G JAOKO (MEMBER) .........................HON. N.W OSIEMO (MEMBER) ........................HON. B.O YOGO (MEMBER) ..........................HON. S. MUSANI (MEMBER) .........................HON. J.N NGOIRI (MEMBER) ........................Delivered virtually in the presence of :Mrs. Mugo h/b for Mr.Wambogo Advocate for claimant.N/A for the Respondent.