[2023] KEHAT 400 (KLR)

PMM v SM (Tribunal Case 038 of 2022) [2023] KEHAT 400 (KLR) (11 August 2023) (Judgment)

Neutral citation: [2023] KEHAT 400 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 038 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

SM

Respondent

Judgment

1. The Claimant instituted this Claim vide a statement of claim dated August 3, 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 August 22, 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 June 2, 2023. The Respondent was also served with the hearing notice as per the affidavit of service dated May 15, 2023 sworn by Francis Omire but did not appear. The claim is therefore un opposed.

The Claimant’s case 4. Claimant adopted his statement dated August 3, 2022 in evidence and testified that he and the Respondent are members of Matungu Opinion Leaders which is a whatsapp group with not less than 220 members. The Claimant’s phone number is +2547-36 user name P.M while the Respondent’s number is +2547-70 user name Xtashray.

5. On July 16, 2022 the members of Matungu Opinion Leaders were engaged in a political discussion on the said whatsapp group where the Respondent publicly posted on the group that the Claimant was HIV positive by stating:“kwani hana…PM ni mwathirika wa ukimwi. “

6. The Claimant testified that the above captioned statements allude 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 and was equally informed of the hearing date 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 un opposed 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 Powerand 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 message “kwani hana…PM ni mwathirika wa ukimwi. reveal that he has HIV and is therefore an unlawful disclosure of status.The Swahili message in it’s literal sense means that the Claimant has HIV. The Respondent put laugh emoji in the statement to indicate that it was laughable for one to think that the Claimant was not HIV positive “PM ni mwathirika wa ukimwi” is stated with confidence as a matter of fact. The said message was meant to dispel any doubt that the reader would have regarding the alleged HIV status of the Claimant.

13. The claimant produced in evidence a snap shot of the whatsapp group showing it has 221 participants. The participants in the group continued to chat after the message was posted in the group at 11. 42am as the same was not deleted. The claimant reacted to the message at 17. 40pm 6 hours after the message was posted in the group. There is no doubt that the message was read by the members of the group.

14. We find that the same was disclosure of the perceived HIV status of the Claimant to third parties. The message does meet the principles enumerated above for the violation of right to privacy.Whether the Claimant suffered stigmatization and/or discrimination as a result of the Respondent’s statements?

15. The 2017 UNAIDS report , Confronting Discrimination: Overcoming HIV-related Stigma and Discrimination in Health-care settings and Beyond states:“When people living with, or at risk of, HIV are discriminated against in health-care settings, they go underground. This seriously undermines our ability to reach people with HIV testing, treatment and prevention services. Stigma and discrimination is an affront to human rights and puts the lives of people living with HIV and key populations in danger.”

16. Despite scientific advancement in the Prevention, care and treatment of HIV and AIDS, People living with HIV still experience stigma and discrimination. This causes them to jealously guard the privacy relating to their HIV status. Disclosing one’s perceived status without their consent tantamount to violation of one’s right to privacy. The resultant effect is more often than not stigmatization and discrimination of the person in social spaces which may result into emotional and psychological trauma.

17. 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."

18. To prove this limb, the Claimant testified that the whatsapp group comprised of his relatives, friends, neighbors and acquaintances who 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 produced a receipt of Kes. 3,000. This tribunal takes judicial notice of the fact that the Claimant has filed several cases against members of various whatsapp groups for discussing and disclosing his alleged HIV status including HAT 037/22, HAT 039/22, HAT 046/22 and HAT 047/22.

19. The said suffering was proximately caused by the Respondent’s disclosure of the Claimant’s alleged HIV status. This claim therefore succeeds.

DeterminationWhether the Claimant is entitled to the reliefs sought? 20. Having considered the pleadings, evidence on record and analyzed all the issues, we have found that the unwarranted disclosure of the Claimant’s HIV status violated the provisions of Section 22 of the HIV and AIDS Prevention and Control Act and the Claim is determined in the following terms:1. A declaration be and is hereby issued that the disclosure of the Claimant’s HIV status by the Respondent was wrongful and unlawful and amounts to violation of provisions of Section 22 of the HIV andAIDSPrevention Control Act;2. The Respondent be and is hereby restrained from disclosing the Claimant’s status, discriminating, stigmatizing and/or harassing him.3. Damages in favour of the Claimant against the Respondent for unlawful disclosure of the Claimant’s HIV status for a sum of Kenya Shillings Three Hundred and Fifty Thousand (Kes. 350,000/=)4. Damages in favour of the Claimant for the impairment of dignity, emotional, physical and psychological suffering for a sum of Kenya Shillings Five hundred thousand (Kes. 500,000/=)5. Special damages of Kes. 3,0006. Costs of the suit.

Orders accordingly.

Dated and signed at NAIROBI this 11th day of August, 2023. Delivered at NAIROBI this 11thday 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.-6- HAT NO. 038 OF 2022