[2023] KEHAT 397 (KLR)

PMM v EE (Tribunal Case E039 of 2022) [2023] KEHAT 397 (KLR) (4 August 2023) (Judgment)

Neutral citation: [2023] KEHAT 397 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case E039 of 2022

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

August 4, 2023

Between

PMM

Claimant

and

EE

Respondent

Judgment

Introduction 1. On August 5, 2022, the claimant herein filed his statement of claim dated August 3, 2022 in which he sought judgment against the respondent, for;i.an order against the respondent restraining her from disclosing the claimant’s status, discriminating, stigmatizing and/or harassing the claimant;ii.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;iii.Damage for the impairment of dignity, emotional, physical and psychological suffering;iv.Special damages of Kshs 3,000/- for counsellingv.Costs of the suit.

2. From the records of this honourable tribunal, despite being served with the statement of claim, the respondent did not file any statement of defence to counter the allegations made against her. This honourable tribunal directed that this claim be heard on the June 2, 2023 and that the respondent be served with the hearing notice.

3. On June 2, 2023, this tribunal was convinced that proper service had been done upon the respondent and directed that the matter proceeds, the absence of the respondent notwithstanding.

B. Claimant’s Case 4. The claimant, in support of his claim, filed witness statements dated August 3, 2023 and bundle of documents also dated August 3, 2023.

5. It was the testimony of the claimant that at all the material time he was a member of the same social media platform called “[particulars withheld] Youths Forum” with the respondent, which is a WhatsApp group of around 344 members. He testified that the group membership is drawn from relatives, friends, neighbors and acquittances who come from [particulars withheld] Sub-County in Kakamega County. The respondent is therefore someone well known to him.

6. Claimant testified that during the group’s discussion on July 6, 2022 and out of nowhere, the respondent publicly posted a comment on the said WhatsApp group alleging that he was HIV positive. He produced the alleged screenshot from the WhatsApp conversation as his evidence before the tribunal. He testified that he confronted the respondent and asked her to stop insulting him for which the respondent apologized.

7. He stated that because of that insult, he faced discrimination in the group and other groups where other people have also resorted to mocking him and talking about his health status. He testified that he feels rejected by his social peers and has faced many challenges ranging from social to psychological because of which he was counselled at Amani Counselling Centre and training institute. He produced as evidence a receipt of Kenya Shillings three thousand one hundred (Kshs 3,100/=) from Amani Counselling Centre in aid of his case.

8. The claimant further testified that his status was disclosed without his consent and as a result of the said disclosure, the claimant has faced stigma. He confirmed that according to him, the respondent disclosed his status when the respondent posted the following message on the WhatsApp group;“akufe polepole.”“Nilisikia myf akitusiwa mbu he is HIV +”“akufe polepole”

9. In support of his claim, the claimant produced a screenshot of the respondent’s contact number as used in the WhatsApp platform together with a screenshot of M-pesa message sent to the respondent to confirm the number used in the WhatsApp platform is indeed the respondent’s.

C: Respondents’ Case 10. The respondent having been served with the statement of claim and the hearing notice did not participate in these proceedings and as such, this tribunal did not benefit from hearing the respondent’s response to the claim.

D: Issues for Determination 11. After analyzing the pleadings, evidence, testimony of the claimant together with the written submissions as filed, these are the issues for determination by this tribunal;i.Whether there was unlawful disclosure of the claimants’ HIV status to third parties by the respondent;ii.Whether there was an impact on the claimants as a result of the actions of the respondents; andiii.Whether the claimants are entitled to the reliefs sought.

E: Legal Analysis 12. This tribunal having listened to the testimony of the claimant and read the pleadings filed herein, will now proceed to analyze each issue singularly.

(i) Whether there was unlawful disclosure of the claimants’ HIV status to third parties by the respondents 13. The claimant relied on the provisions of section 22 of the HIV and AIDS Prevention and Control Act (hereinafter ‘HAPCA’). Indubitably, to prove disclosure, one must tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the said on a platform or a forum that could be easily accessed by a third party. For a claimant to succeed in a claim for disclosure as provided under section 22 ofHAPCA, the claimant must provide a witness to corroborate the evidence of disclosure in order to discharge that burden in respect of disclosure.

14. In the context, the right to privacy and confidentiality in relation to one’s HIV status is provided under section 22 of the HIV and AIDS Prevention and Control Act, 2006, which provides as follows;"(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;"

15. The said section of HAPCA emphasizes on the right to privacy as regards a person’s HIV status and, prohibits against disclosure of any information concerning one’s HIV status to any other person, except in certain circumstances and particularly if written consent has been granted.

16. The gist of these words as enunciated in our decision in S M –vs- E N O, HAT no 18 of 2018 is that a claimant must call a witness to confirm that, indeed, there was disclosure of the claimant’s status to third parties, including the witness. This witness is a crucial key to the puzzle and assists the Tribunal in piecing together a claimant’s averments and painting the picture of the circumstances under which the disclosure occurred. The witness’s account complements and corroborates that of the claimant.

17. 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.”

18. We rely on the case of Muriungi Kanoru Jeremiah v Stephen Ungu M’mwarabua[2015] eKLR where the court held as follows with regard to the burden of proof:“....As I have already stated, in law, the burden of proving the claim was the appellant’s including the allegation that the respondent did not pay the sum claimed as agreed; i.e. into the account provided.....The trial magistrate was absolutely correct in so holding and did not shift any legal burden to the appellant.....The appellant was obliged in law to prove that allegation; after the legal adage that he who asserts or alleges must prove.... In the circumstances of this case, the respondent bore no burden of proof whatsoever in relation to the debt claimed. By way of speaking, the shifting of burden of proof would have arisen had the trial court magistrate held that the respondent bore burden to prove that he deposited the sum of Kshs. 98,200/= the debt being claimed herein.”

19. We also refer to theHalsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”(16)The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence?”

20. Justice Mativo in Hellen Wangechi v Carumera Muthini Gathua [2005] eKLR, quoted with approval Lord Brandon in Rheir Shpping Co SA v Edmunds [1955] IWLR 948 at 955 as follows:“No judge likes to decide case on the burden of proof if he can legitimately avoid having to do so. There are cases, however in which owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just cause to take.”Justice Mativo, in the above decision, went on to state as follows:“Whether one likes it or not, the legal burden of proof is consciously, or unconsciously the………..test applied when coming to a decision in any particular case. The fact was succinctly put forth by Rajah JA in Britestone PTE Ltd v Smith & Associates Far East Ltd [2007] 4SLR (R) 855 at 59: ‘The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”Justice Mativo went further to state in Hellen Wangechi (supra) as follows;“It is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. As observed above, the Appellant made allegation in the plaint, hence she was under an obligation to support the allegation. For example, since there was a denial in the defence, it was necessary to adduce evidence to show how the amount of Kshs 316,000/- was arrived at.”

21. Flowing from the above, the principle is that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of fact which he asserts, must prove that those facts exist. From the pleadings and testimony of the claimant, we are unable to see how the word, ‘“Nilisikia myf akitusiwa mbuhe is HIV +” can be interpreted as disclosing one’s status to third parties. What we get from the word is that the respondent, if at all it was the respondent, to be informing the group that she heard the claimant being abused as such. In arriving at this decision, this tribunal has considered the fact that there was no corroborative evidence to support such alleged disclosure and further that the words as posted does not disclose any status of the claimant to third parties.

22. 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, this limb of the claim fails.

(ii) Whether there was an impact on the claimants as a result of the actions of the respondent 23. The claimant submitted that his status in society changed as a result of the unlawful disclosure of his status, resulting in rejection and stigma. It was the claimant’s testimony that he was rejected by his social peers to the extent that he does not have the freedom to freely express his views in the social forums to which he belongs to.

24. As discussed above, for one to claim that a certain act or omission has had a negative impact on them, one needs to provide the evidence in support of this assertion. It would be fair to assume that it is difficult to provide evidence of the effects of stigma on one’s life, or of emotional and psychological suffering as a result of unlawful disclosure. However, having found that there was no unlawful disclosure of the claimants’ status, it stands to reason that this limb of their claim, too, must fail.

(iii) Whether the claimants are entitled to the reliefs soughtThe first two limbs of the claim having failed, then this limb, too, must fail.

F:Determination_ 25. 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 standard and hence, failed to discharge his burden of proof.This cause is, therefore, dismissed. Given the nature of the proceedings herein, we direct that each party shall bear their own costs.Orders accordingly.

DATED AT NAIROBI THIS 4TH DAY OF AUGUST, 2023. DELIVERED AT NAIROBI THIS 4TH 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)DELIVERED virtually in the presence of:Ms. Mugo h/b for Phillip Wambugu for the ClaimantNo appearance for the RespondentKerinah OwuochahLawrence Teku………………………Court Assistants.