[2023] KEHAT 401 (KLR)

PMM v FO (Tribunal Case E037 of 2022) [2023] KEHAT 401 (KLR) (11 August 2023) (Judgment)

Neutral citation: [2023] KEHAT 401 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case E037 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

FO

Respondent

Judgment

A. INTRODUCTION 1. Vide a Statement of Claim dated August 3, 2022 and filed on August 5, 2022, the Claimant herein moved the Tribunal seeking the following reliefs from the Respondent herein: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 Kshs 3,000/= for counseling;e.Costs of this suit.

2. On the same date, the Claimant filed a list of witnesses enlisting himself as the only witness, his witness statement and a list of documents alongside a bundle of the enumerated documents.

3. The Respondent never entered appearance nor filed a response to the Claim. The Tribunal examined the Certificate of Service sworn on October 28, 2022 in proof of service of the Summons to Enter Appearance and the Statement of Claim upon the Respondent and the service was satisfactory to this Tribunal. In the quest for being the hermitage of the rules of natural justice and fair trial, on May 5, 2023, this Tribunal directed that the Respondent be served with a Hearing Notice. Again, a Certificate of Service sworn on May 15, 2023 and filed on May 24, 2023 was examined and the Tribunal was satisfied with the service of the Hearing Notice upon the Respondent. With no entry of appearance, the matter inevitably proceeded for hearing ex parte on June 2, 2023.

B. The Claimant’s Case 4. The Claimant avers that at all material times, the Claimant and the Respondent were members of the same social media platform called, 'ODM TEAM MATUNGU SUBCOUNTY,' which is a WhatsApp group of not less than 170 members. That on July 3, 2022, the Claimant was engaged in a political discussion on the said WhatsApp group, where he posted a comment that was divergent from the Respondent’s view of the likely person to win as the Member of Parliament, Matungu Constituency. In retaliation, the Respondent publicly posted a comment on the said WhatsApp group that alleged that the Claimant was HIV positive. That the post was done in the presence of all members in the group and has caused the Claimant to suffer stigma and loss of dignity.

5. Thereafter, the Claimant opted to send a private message to the Respondent requesting him to stop insulting him and posting in various political WhatsApp groups false allegations of his HIV status, but the Respondent was unapologetic for his actions.

6. The Claimant avers that he also faced discrimination in the group and other groups where other people have also resorted to mockery and talking about the Claimant’s status. The Claimant further avers that he feels rejected by his social peers to the extent that he does not have freedom to freely express his views in the social forums to which he belongs.

7. It is the Claimant’s averment that he has faced many challenges ranging from social to psychological, as a result of the Respondent’s remarks and the Claimant is currently undergoing counseling. Further, the Claimant avers that the Respondent’s conduct and actions towards the Claimant are very discriminatory, stigmatizing and are in breach of the Claimant’s statutory rights, hence resulting in pain and suffering, physical, emotional and psychologically.

8. In evidence, the Claimant adopted his witness statement, which albeit not dated, was filed on August 5, 2022 alongside the Statement of Claim, as part of his testimony. The Claimant then proceeded to testify that he is a procurement consultant residing in Ruai in Nairobi, though that his rural home is in Matungu – Kakamega County. The Claimant testified that he is in a WhatsApp group with other members called 'ODM Team Matungu Subcounty' and that in the course of discussions in the group, one of the members FO – the Respondent, posted that the Claimant was HIV positive. The Claimant testified that he asked the Respondent privately in his WhatsApp to stop and the Respondent responded that it was nonsense.

9. It was the Claimant’s testimony that as a result he has been discriminated, stigmatized, traumatized and had to undergo counseling. When the Claimant was asked by the Tribunal to elaborate on the stigmatization that he faced, it was the Claimant’s testimony that word got to his wife who in turn moved from their matrimonial bed and started sleeping in a separate bedroom. The Claimant further testified that in his local church, some people avoid sitting next to him, talk behind his back and avoid him.

C. Issues For Determination 10. This Tribunal having read through the pleadings filed, having heard the evidence of the Claimant alongside his adopted witness statement, and having read through the submissions filed by the Claimant dated June 20, 2023, has identified the following as issues for determination in this matter:i.Whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without the Claimant’s consent;ii.Whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination; andiii.Whether the Claimant is entitled to the reliefs sought.

D. Legal Analysis 11. This Tribunal will now analyze the issues identified above singularly as follows.

i. Whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without the Claimant’s consent 12. In submitting under this issue, the Claimant relied on the provisions of section 22(1) of the HIV and AIDS Prevention and Control Act, No 14 of 2006 (hereinafter ‘HAPCA’) which enacts that;'No person shall disclose any information concerning the result of an HIV test or any related assessments to any other person.'

13. The Claimant also relied on the authority in the case of Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 Others -vs- Cabinet Secretary Ministry of Health & 4 Others [2006] eKLR wherein Hon Justice Lenaola (as he then was) expounded on the issue of the right to privacy.

14. This Tribunal has examined the evidence provided alongside the testimony of the Claimant, and specifically: CExb2, being a screenshot of the group information of the WhatsApp group 'ODM Team Matungu Subcounty' that indicates that the group has 178 participants (as at the time and date of the screenshot); CExb4, being a screenshot of the message from a member of the WhatsApp group going by the user name ‘~Drogba’ of cellphone number +254 719XXX, which message reads;‘Naskia uko na ukimwi, si umeze tu madawa juu ya kujinyonga’

15. The above message can be loosely translated to 'I hear you have HIV, just take medicine for suicide'; and, CExb6, being a screenshot of the mobile money transfer service provider, Mpesa, transaction confirmation message showing that the cellphone number 0719XXX277 was registered to F.O the Respondent herein.

16. This tribunal has previously held that a person’s HIV status is a private affair and should not be disclosed to third parties without his/her consent as enacted in section 22 of HAPCA. This HIV status as covered by the aforementioned provision is both real or perceived, and so it matters not that the person disclosing the said status is unaware of the actual status of the person being offended.

17. It was the holding of this Tribunal in the case of GGOO -vs- MOA [2021] eKLR that;'34. On the definition of disclosure, the Respondent submitted that the term means ‘to make known, a revelation or the uncovering of a thing that is kept hidden’. He contended that the evidence tendered by the Claimant was an alleged conversation between the Claimant and the Respondent, which entailed innuendo of the Claimant’s status. According to the Respondent, the question, therefore, is whether by informing the Claimant of his HIV status, the Respondent’s conduct amounted to disclosure.35. On the one hand, we concur with the Respondent’s submissions with regard to definition of disclosure. On the other hand, we disagree that the alleged conversation was between the Claimant and Respondent only, and, therefore, cannot be construed to be disclosure. The evidence before the Tribunal clearly shows that there were at least 2 messages posted by the Respondent in a group, which alluded to the Claimant’s status, whether real or perceived. Without a doubt, the WhatsApp group did not compromise of the Claimant and the Respondent only, it had other members. In our view, this evidence tendered herein by the Claimant, which has not been countered by the Respondent, clearly indicates that there was publication of the Claimant’s status, real or perceived, to a group which group contained a large number of people.37. Borrowing the words of the Learned Judge, the provisions of section 2 of HAPCA protect against unnecessary and unwarranted revelation of one’s status, which is a private affair. HIV status is a private affair whose disclosure can and will cause mental distress and injury to a person, hence the need to keep this information confidential. Having said this, it is clear that the Respondent violated the provisions of section 22 of HAPCA by unlawfully disclosing the Claimant’s status, real or perceived, to third parties without the Claimant’s consent.'

18. Considering paragraph 35 of the above cited case, it then becomes important that this Tribunal points out that for a party to successfully plead disclosure, they ought to either corroborate the said disclosure by the evidence of an independent witness, or prove that there was publication in a forum accessible by third parties.

19. This Tribunal also considered its previous Judgement delivered in HAT Cause No E039 of 2022, PMM -VS- EE (unreported) where it held that the Claimant did not prove unlawful disclosure of his HIV status following a publication in a WhatsApp group by the Respondent therein. The Respondent therein allegedly posted, 'niliskia myf akitusiwa mbu he is HIV +' which was held as not being an unlawful disclosure of the Claimant’s status as there was no corroborating evidence presented to buttress the Claimant’s allegations. Unlike in the case herein, no evidence was presented to show that the said message had been specifically directed to the Claimant therein and as such, minus corroboration, the claim failed.

20. Going by the evidence tendered before the Tribunal as highlighted herein above, and also in keeping with this Tribunal’s holdings in previous similar matters, it is our finding that the Respondent’s actions amounted to a violation of the provisions of section 22 of HAPCA, and that he unlawfully and without consent of the Claimant, disclosed the Claimant’s status, real or perceived, to third parties, being the members of the aforementioned WhatsApp group.

ii. Whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination; and 21. Having found that there was unlawful disclosure, the question then becomes, whether the Claimant suffered stigmatization and/or discrimination as a result.

22. Before delving into the above question, this Tribunal would like to reproduce the words of the author Jim Wooten, who in his book, ‘We Are All the Same: A Story of a Boy’s Courage and a Mother’s Love.’ wherein he wrote the extraordinary story of Nkosi Johnson, the South African boy born with HIV. Wooten writes,' I am a Jew.Hath not a Jew eyes?Hath not a Jew hands, organs, dimensions, sense, affections, passions?If you prick us, do we not bleed?If you tickle us, do we not laugh?If you poison us, do we not die?The kid was speaking not for the Jews, of course, but rather for that exponentially expanding family he had not asked to join but of which he was nevertheless a part of: the millions of Africans who carried a deadly virus in their bodies, an infection that had not only doomed them but damned them as well, had made of them social pariahs, punished by their countries and cultures and communities simply because they were ill, stigmatized as the new lepers of the new millennium.'The kid was speaking of them_We are all the same._and for himself_We are all the same._and, in a way, for all the maligned and marginalized if the earth.

23. The Claimant testified that after the Respondent had made the subject allegations against him in the WhatsApp group, the Claimant proceeded to the Respondent’s inbox and privately asked the Respondent to stop the infringement. In CExb5, the screenshot for the apology request, the Claimant texted the Respondent,'I kindly request you to stop insulting me on various Matungu political WhatsApp groups. To the best of my knowledge I have Never insulted you and I see no reason why you keep on insulting me. Your insults some like false allegations that I have ukimwi cause me psychological problems. I kindly request you to stop the insults.'

24. 'Nonesense' [sic] was all that the Respondent texted in response to the Claimant.

25. It was the Claimant’s testimony that word on his alleged HIV status got to his wife who in turn moved from their matrimonial bed and started sleeping in a separate bedroom. That in his local church, some people avoid sitting next to the Claimant, talk behind his back and avoid him. It was also the Claimant’s testimony that he needed counselling following the incident and in evidence he produced CExb7, a receipt from Amani Counselling Centre & Training Institute.

26. Section 3(b)(ii) & (iii) of HAPCA provides that, 'The object and purpose of this Act is to extend to every person suspected or known to be infected with HIV and AIDS full protection of his human rights and civil liberties by guaranteeing the right to privacy of the individual and outlawing discrimination in all its forms and subtleties against persons with or persons perceived or suspected of having HIV and AIDS.'

27. The impute of the above provision is that stigmatization and/or discrimination of a person living with or perceived to be living with HIV and AIDS shall not be permitted under the law. This Tribunal has previously defined HIV stigma as referring to irrational or negative attitudes, behavior and judgement towards people living with or at risk of HIV. Taking into consideration the testimony of the Claimant and the evidence tendered in support of his claim, and the unfeasibility of quantifying stigma, we do find that the Claimant herein suffered discrimination and/or stigmatization.

iii. Whether the Claimant is entitled to the reliefs sought. 28. The Claimant seeks the following reliefs: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 Kshs 3,000/= for counselling; and,e.Costs of this suit.

29. Having answered the first two issues to the affirmative, what is left for determination is the quantum of damages payable to the Claimant for the Respondent having unlawfully disclosed the Claimant’s HIV status to third parties and damages payable for the Respondent having caused the Claimant to suffer stigmatization and/or discrimination.

30. In his submissions, the Claimant relied on the case of BAO -vs- China Henan International Group Co Ltd [2021] eKLR where this Tribunal awarded the Claimant Kshs 500,000/= as damages for unlawful disclosure of his HIV status to third parties and Kshs 850,000/= being damages for emotional and psychological distress as a result of the stigma.

31. The Claimant also placed reliance in RAO -vs- Mediheal Group of Hospitals & 2 Others [2021] eKLR where on Appeal the High Court set aside the Tribunal’s award and substituted it with an award of Kshs 500,000/= for unlawful disclosure of the Appellant’s HIV status and an award of Kshs 850,000/= for the emotional and psychological distress as a result of the stigma.

32. Whilst this Tribunal appreciates the above authorities, it is important to point that the circumstances surrounding the material case herein are slightly different as such rendering the above awards as being inordinately high in the current situation. This Tribunal finds that GGOO -vs- MOA [supra] raises a more realistic comparison to the material claim herein and thus we award Kshs 350,000/= for the unlawful disclosure of the Claimant’s status to third parties without his consent and Kshs 500,000/= for the discrimination and/or stigmatization suffered.

E. Determination 33. On the first issue as to whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without the Claimant’s consent, we find that the Respondent’s actions amounted to a breach of the provisions of section 22 of HAPCA and consequently award damages of Kshs 350,000/= under this ambit of the claim.

34. On the second issue as to whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination, we find to the affirmative and thus make an award of damages of Kshs 500,000/= under this ambit of the claim.

35. On special damages, the Claimant pleaded and prayed for Kshs 3,000/= and the same was proven vide CExb7 and thus the same is allowed.

36. In conclusion, this claim is determined as follows;a.An Order is hereby issued against the Respondent retraining the Respondent from disclosing the Claimant’s HIV status, discriminating, stigmatizing and/or harassing the Claimant.b.Judgement is hereby entered in favour of the Claimant as against the Respondent in the cumulative sum of Kshs 850,000/= by way of general damages.c.Judgement is hereby entered in favour of the Claimant as against the Respondent in the sum of Kshs 3,000/= as special damages.d.The Claimant is hereby awarded costs of this claim.e.The Claimant is hereby awarded interest on Judgement items b), c) and d) above at court rates from the date of this Judgement until payment in full.

Dated And Signed At Nairobi This 11Th Day August, 2023. DELIVERED 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)DELIVERED virtually in the presence of;Phillip Wambugu for the ClaimantNo appearance for the RespondentJudy ChepngenohLawrence Teku………………………… Court Assistants.