[2024] KEHAT 990 (KLR)

PRJ v KDF (Tribunal Case 048 of 2022) [2024] KEHAT 990 (KLR) (26 July 2024) (Judgment)

Neutral citation: [2024] KEHAT 990 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 048 of 2022

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

July 26, 2024

Between

PRJ

Claimant

and

KDF

Respondent

Judgment

1. Before us for determination is the statement of Claim dated 3rd November 2022 seeking the following orders: -a.A declaration that Kenya Defence Forces (KDF) is not excluded from the operation of the HIV & AIDS Prevention and Control Act.b.An order ascertaining that the Claimant did suffer a violation and infringement of his rights as guaranteed and protected under the HIV & AIDS Prevention and Control Act.c.An order directing the discontinuation of discrimination against the Claimant on grounds of being HIV positive in respect of his enlistment in the KDFd.Awarding payment of damages (general and punitive) in respect of impairment of dignity, pain and suffering and/or emotional and psychological suffering as a result of the procedural testing and wrongful disclosure made to him by the Respondent.e.Directing KDF to review and update its regulations, procedures and/or practices for enlistment and/or recruitment informed by scientific developments in HIV treatment and management and in compliance with the provisions of the HIV & AIDS Prevention and Control Act and existing standards and guidelines.f.An order that KDF should undergo /embark on training of relevant employees on confidentiality, and on HIV counselling and testing procedures and provide evidence of the same before this Honourable Tribunal.g.Grant such further and/or alternative reliefs and give such orders and directions as it may deem fit to meet the ends of justice andh.Order the Respondents to pay costs of the claim.

2. The Respondent entered appearance and filed Notice of Preliminary objection dated 17th day of April 2023 and Amended on 22nd May 2023 which was determined and the Respondent subsequently filed a statement of Response dated 5th October 2023.

Claimant’s Case 3. It is the Claimant’s case that on or about November 2021, while still serving at the National Youth Service, he applied to serve in the Kenya Defence Forces and on 24th November 2021 he presented himself for an interview into the force and underwent a KDF enlistment medical examination at the National Youth Service headquarters which was a recruitment center. Among the tests conducted was a HIV test but he was not offered HIV pre-test or post-test counseling. He was given a calling letter from the Respondent indicating that he was successful in the recruitment interview into Kenya Defence Forces as a general duty recruit and he resigned from the National Youth Service.

4. The Claimant reported to the Respondent’s training school in Eldoret on 25th December 2021 as per the calling letter and was subjected to further medical tests on 26th December 2021 including HIV test but there was no pre-test or post-test counseling. He stayed in the Recruit Training School until 2nd January 2022 when he was informed in the presence of other recruits by a recruit officer that he was dismissed from the training because he was HIV positive and needed to go for treatment and was given Kes. 1,000 as transport to go back home.

5. The Claimant averred that the public disclosure of his HIV status humiliated him and caused him emotional and psychological torture as he was not aware of the said status since the results of the 2nd HIV test conducted on 26th December 2021 had not been disclosed to him and he had not been counselled. Further, he had to avoid going home as he was the sole bread winner and had just lost the job. He accused the Respondent of discrimination by terminating his recruitment solely on grounds of his HIV status.

6. On cross examination, he stated that he was not issued with a service number and that he did not have original copies of the calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper produced as the same were retained by the Respondent.

The Respondent’s Case 7. The Respondent filed a statement of Response dated 5th October 2023 and Witness Statement by Maj. EKM the records officer who testified that he did not have any records to show that the Claimant was an employee of the Respondent or among the recruits shortlisted by the Respondent in the 2021 recruitment exercise.

8. He further testified that though the Claimant’s calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper are similar to the calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper issued by the Respondent to successful recruits, the said documents do not originate from the Respondent since the Respondent’s recruitment officer collects them during the recruitment exercise due to their confidential nature and concluded that the Claimant might have been a victim of fraud.

9. On cross examination, he testified that his duties entailed keeping records of all serving and retired officers. He confirmed that a background check was conducted on the Claimant’s allegation but the same was not filed at the Tribunal. He confirmed that during the background check he did not call NYS which is a recruitment center to find out whether the Claimant was recruited from there.

10. He further stated that recruits with fake documents are reported to the police station and prosecuted but confirmed that no complaint was made against the Claimant at the police station because the Respondent did not have the Claimant’s documents as his file does not exist in their records as a serving officer.

11. He stated that the calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper in the Claimant’s possession are confidential documents issued to successful recruits but once filled are retained by the Respondent and filed away in their respective files. It was his testimony that the documents in the Claimant’s possession were forged because they ought not to be in his possession. Further, the calling letter did not bear the name of the personnel signing it, and the serial number did not exist in the Respondent’s records.

12. On further cross examination, he stated that recruits are sent to the Recruit Training School for training where they are issued with service numbers but the same is not issued on their arrival. He also stated that a recruit must pass all the preliminary tests before being sent to the Recruit Training School.

Issues For Determination 13. This Tribunal having read through the pleadings filed, heard the evidence of the parties and read through the submissions filed has identified the following as issues for determination in this matter:a.Whether the Claimant was recruited and subsequently terminated by the Respondent?b.Whether the Claimant gave informed consent and was offered HIV pre-test and post –test counseling?c.Whether the Claimant’s HIV status was disclosed to third parties?d.Whether the Claimant was discriminated against by the Respondent?e.Whether the Respondent is excluded from the operation of the HIV & AIDS Prevention and Control Act.f.Whether the Claimant is entitled to the reliefs sought?

Whether the Claimant was recruited and subsequently terminated by the Respondent 14. The Respondent filed Notice of Preliminary objection dated 17th day of April 2023 and Amended on 22nd May 2023 challenging the jurisdiction of this Tribunal to handle this matter stating that the issue between the Claimant and the Respondent is labour related and should be handled by the Labour and Relations Court in the Claim filed by the Claimant in ELDORET PET. E.028 OF 2022 PKJ V AG & 2 OTHERS. The Tribunal determined the Preliminary Objection on 28th July 2023 and found that it has jurisdiction to handle the matter but the same is limited to the issues of HIV raised in the claim in line with the provisions of the HIV and AIDS Prevention and Control Act.

15. In view of the foregoing, this Tribunal shall not go into details of the enlistment and termination of the Claimant by the Respondent save for the issue of HIV tests and alleged discrimination based on HIV status as guided by the evidence adduced and the calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper on record.

Whether the Claimant gave informed consent and was offered HIV pre-test and post –test counseling 16. The Claimant testified that on 24th November 2021 he presented himself for an interview to join the armed force and underwent a KDF enlistment medical examination at the National Youth Service headquarters which was a recruitment center. Among the tests to be conducted was HIV test. He signed a consent allowing the Respondent’s Doctor to conduct physical examination, hematological/serological profile and urinalysis. HIV test is indicated as no. 6 in the signed KDF enlistment medical examination form 2019 signed by both the Claimant and the Respondent’s alleged Doctor.

17. The Claimant averred that though he consented to have the HIV test, the Respondent’s Doctor did not offer him pre or post HIV test counseling as required by law. Section 17(1) of the HIV & AIDS Prevention and Control Act makes it mandatory for testing centers to provide HIV pre-test and post-test counseling to persons undergoing a HIV test to enable the person to give informed consent before testing and make informed decisions when the test results is disclosed. In the case of B.O V MERIDIAN EQUITORIAL HOSPITAL, CAUSE NO. 05 OF 2013, this Tribunal held;In our view, this provision of HIV and Aids Prevention and Control Act is extremely important especially in view of the socio-cultural implications of HIV and AIDS in our country. It serves a very useful purpose and must not be taken lightly by medical and other facilities that conduct HIV testing. Pre-test and post-test counseling are not mere cosmetic requirements. Many people have committed suicide in this Country on learning that they have tested HIV positive. Such unfortunate deaths are easily avoided through pre-test as well as post-test counseling. Moreover, post-test counseling is extremely important since persons who test positive are entitled to be counselled on how to live positively.

18. Section 13(1) of the HIV and AIDS Prevention and Control Act provides:Subject to subsection (2), no person shall undertake a HIV test in respect of another person except—(a) With the informed consent of that other person; (b) If that person is a child, with the written consent of a parent or legal guardian of the child:

19. Consent has been defined under Section 2 of the HIV and AIDS Prevention and Control Act to mean consent given without any force, fraud or threat and with full knowledge and understanding of the medical and social consequences of the matter to which the consent relates.

20. The Respondent in its defence denied the Claim in its entirety and stated that the documents in the Claimant’s possession were fake as they were not original or certified copies of the original as required under section 68 of the Evidence Act. Further, the said documents are confidential in nature and ought not to be in the Claimant’s possession as the same are usually retained by the recruiting officer. The Respondent further submitted at paragraph 11 of it’s submissions that the Claimant did not prove the source of the documents.

21. It is important to note that this Tribunal is not bound by rules of evidence as provided under Section 27(3) of the HIV Prevention and Control Act. Which provides:In determination of any matter, the Tribunal may take into consideration any evidence which it considers relevant to the subject matter before it, notwithstanding that the evidence would otherwise not be admissible under the Evidence Act.

22. The mere fact that the calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper are confidential and ought not to be in the Claimant’s possession do not in our opinion make them fake. We have seen the confidential note at the bottom of the calling letter which reads“… no photocopying or alterations is allowed on this document …”

23. Apart from the fact that the calling letter is confidential and no photocopying is allowed, the Respondent has not filed a case against the Claimant for fraud to give weight to this allegation or otherwise. For argument’s sake, the Claimant was not questioned during cross examination on why he had copies of confidential documents.

24. No reason was advanced why the list of recruits from NYS recruitment center could not be availed for scrutiny to confirm whether indeed the Claimant was recruited at the NYS recruitment center. Similarly, the Respondent did not call its Doctor or have RW-1 testify on whether or not HIV pre-test and post-test counseling is conducted on the recruits before HIV test is conducted considering that HIV test is among the tests to be conducted as per the medical form. In any event, the Respondent admitted that the documents in the Claimant’s possession are similar to the documents issued by the Respondent to successful recruits to be filled and submitted to the Recruiting officer for filing.

25. In view of the foregoing, based on the calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper provided, we find that the Respondent has failed to prove that the Claimant’s calling letter, medical report, notice paper, certificate of recruiting officer and the attestation paper were forged and hold that the Claimant did not give informed consent to be tested for HIV and was not offered HIV pre-test and post –test counseling by the Respondent.

Whether the Claimant’s HIV status was disclosed to third parties? 26. A person’s HIV status is confidential and should not be revealed to third parties without their consent as provided for under Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act reads:“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”.

27. This Tribunal has previously held in SM v ENO[2018]eKLR that for one to prove disclosure, he/she must show that the disclosure was made to a third party without the Claimant’s consent and tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the said statement on a platform or a forum that could be easily accessed by a third party.

28. The Claimant testified that he reported to the Respondent’s training school in Eldoret on 25th December 2022 as per the calling letter where he stayed until 2nd January 2022 when he and other recruits were publicly called out by a KDF Recruit Officer and informed in the presence of other recruits that he was dismissed from the training programme because of medical, academic and other issues.

29. Upon further inquiry from the Recruiting Officer on why he was discharged, the officer told him in the presence of other recruits “wewe uko na HIV. Ulikuwa unajua?.. sasa enda ukatibiwe” He was then given Kes. 1,000 as transport to go back home. He was surprised because the results of the 2nd test conducted at the Recruit Training School had not been disclosed to him. The public disclosure humiliated him and caused him emotional and psychological stress.

30. The Claimant testified that he could not call a witness to prove unlawful disclosure of HIV status to third parties as most of the recruits who heard the disclosure are currently serving in the force and have refused to testify for him. As stated above, for one to prove that there was unlawful disclosure of HIV status to third parties, a witness must be called to testify on the disclosure or a written document produced to prove the same. The Claimant failed to call a witness who was present when the disclosure was made. He has therefore not met the threshold required to prove disclosure of HIV status to third party. This prayer therefore fails.

Whether the Claimant was discriminated against by the Respondent? 31. The term discrimination although not defined in the HIV and AIDS Prevention and Control Act, is defined in the Black’s Law Dictionary as “the unjust or prejudicial treatment of different categories of people, especially on the grounds of ethnicity, age, health status, sex, or disability”.

32. Justice Mwita set the threshold to be met to prove discrimination under the HIV and AIDS prevention and control Act in the case of SOO & another v ESI (Suing on behalf of EJZ (Minor) (Civil Appeal 19 of 2018) [2020] KEHC 931 (KLR) (18 December 2020) (Judgment) by holding:When dealing with allegation of discrimination on any ground, including health status, the complainant must prove that were it not for the health status, he/she would not have been treated the way he/she was. In the respondent’s case, she had to prove to the satisfaction of the HIV and AIDS Tribunal, that the only reason why the minor was not admitted to the 2nd appellant was because of his health status. It must be shown prima facie that the minor’s health status was the motivating factor in denying him admission or that motivation could be inferred from the conduct of the person accused of discrimination.

33. Before us is a calling letter which the Respondent has failed to prove is fake that brings about the issue of some semblance of employment relationship between the Claimant and the Respondent. The Respondent testified that the Claimant was not it’s employee because he did not have a service number but on cross examination confirmed that the service numbers are not given on enlistment but are given at the Recruit Training School. He further testified the service number is not issued on the day of joining the Recruit Training School.

34. The Claimant testified that he was released from the Recruit Training School based on his HIV status which was revealed at the time of his dismissal and averred that this was discrimination based on his HIV status. Section 31 of the HIV and AIDS Prevention and control Act provides;… No person shall be—a.denied access to any employment for which he is qualified; orb.transferred, denied promotion or have his employment terminated, on the grounds only of his actual, perceived or suspected HIV status.

35. RW-1 testified that a candidate should be fit enough to sustain the vigorous training and should meet the relevant academic requirements and age. We have perused the KDF enlistment medical examination form 2019 signed by both the Claimant and the Respondent’s alleged Doctor and note that the recruits are to undergo a HIV test as part of the requirements for enlisting. RW-1 did not see it fit to testify on the allegations of discrimination choosing to stick to the defence relying on the allegation that the Claimant was a stranger to the Respondent and that no relationship existed between them. RW-1 ought to have testified on this issue since HIV test seems to be crucial in the medical forms. The only defence to violations under section 31 (1)a of the HIV and AIDS Prevention and Control Act is section 31(2) which provides that:Subsection (1) shall not apply in any case where an employer can prove, on application to the Tribunal that the requirements of the employment in question are that a person be in a particular state of health or medical or clinical condition.

36. The Respondent’s witness statement that KDF recruitment standards boarders medical fitness, physical fitness, spiritual fitness as well as moral fitness is an inference that a candidate who is not medically fit can not be recruited. This statement by itself is not sufficient proof as required under section 31 (2) of the HIV and AIDS Prevention and Control Act.

37. For an employee to rely on the exception provided under Section 31(2) of the HIV and AIDS Prevention and Control Act, the employer MUST make an application before this Tribunal for it to be exempted from the application of Section 31(1) of the HIV and AIDS Prevention and Control Act and prove that the requirements of the employment in question are that a person be in a particular state of health or medical or clinical condition.

38. In the report, Confronting Discrimination: Overcoming HIV-related Stigma and Discrimination in Health-care settings and Beyond, launched by the Executive Director of UNAIDS in October 2017, it was noted that people living with HIV who experience high levels of HIV-related stigma are more than twice as likely to delay enrolment into care than people who do not perceive HIV-related stigma. The report states thus that “Stigma and discrimination is an affront to human rights and puts the lives of people living with HIV and key populations in danger.”

39. Kenya is in the process of eradicating new HIV infection by 2027. Scientific advancements have been made in treatment with tremendous benefits to those infected with the virus. Anti-retroviral treatment (ART) not only reduces death among HIV-infected people, but also reduces frequencies of illness, and improves their quality of life leading to them living normal lives and able to work without interference. Furthermore, it is now also recognized that by reducing the virus in blood to undetectable levels, ART prevent HIV transmission, the so- called U=U (undetectable = untransmissible).

40. We find that the Respondent’s act of releasing the Claimant from the Recruit Training School solely based on his HIV status is discriminatory and a violation under Section 31 of the HIV and AIDS Prevention and Control Act.

Whether the Respondent is excluded from the operation of the HIV & AIDS Prevention and Control Act? 41. The Claimant at paragraph 13 of the claim pleaded that the Respondent’s HIV Test procedures which were subjected to the Claimant as part of the recruitment procedures are non-compliant with established standards and guidelines for HIV testing. He testified that he did not give informed consent to be tested for HIV and was not counselled by the Respondent’s doctor prior to and after the test. To prove this allegation, he relied on the KDF enlistment medical examination form 2019 signed by both the Claimant and the Respondent’s alleged Doctor where HIV test is indicated as no. 6 in the form.

42. The Respondent denied this allegation and stated that the Claimant has not proved where he took the test and the name of the Doctor who performed the test and submitted that it has a pool of medical experts who follow the procedures and regulations.

43. We have exhaustively discussed the issue of HIV pre-test and post test counseling above and found that the Respondent violated the provisions of Section 17(1) of the HIV & AIDS Prevention and Control Act which makes it mandatory for testing centers to provide HIV pre-test and post-test counseling to persons undergoing a HIV test.

44. This Tribunal has noted from the medical report that HIV test seems to be crucial in the medical forms as a pre-requisite to KDF enlistment not only in Kenya but in other Countries. Comparative legal study and jurisprudence shows that due to significant advancements in the diagnosis, treatment, and prevention of Human Immunodeficiency Virus (HIV), the United States of America Secretary of Defence in June 2022 updated DoD policy with respect to individuals who have been identified as HIV-positive by directing:“officers living with HIV will have no restrictions applied to their deployability or to their ability to commission while a Service member solely on the basis of their HIV-positive status. Nor will such individuals be discharged or separated solely on the basis of their HIV positive status..”

45. RW-1 testified that that KDF recruitment standards boarders medical fitness, physical fitness, spiritual fitness as well as moral fitness. However, persons living with be embraced and allowed to serve due to the advancement in HIV testing and treatment.

46. This Tribunal holds that the Respondent is not excluded from the operations of the HIV and AIDS prevention and Control Act and encourage the Respondent to train it’s personnel and uphold the provisions of the Act.

Whether the Claimant is entitled to the reliefs sought? 47. Having answered some issues in the affirmative, what is left for determination is the quantum of damages payable to the Claimant having been discriminated against by the Respondent based on his health status and damages payable by the Respondent for failing to conduct HIV pre-test and post -test counseling.

48. On the issue, whether the Claimant consented to be tested for HIV, we find that the Respondent did not obtain the Claimant’s informed consent thereby violating the provisions of section 14 of HIV and AIDS Prevention and Control and accordingly award the Claimant Kes. 400,000.

49. On the issue, whether the Claimant was offered HIV pre-test and post-test counseling, we find that the Claimant was not offered HIV pre-test and post- test counseling thereby violating section 17 of HIV and AIDS Prevention and Control Act and award the Claimant Kes. 250,000.

50. On the issue, whether the Claimant’s HIV status was disclosed to third party, we find that the Claimant did not prove this claim and proceed to dismiss it.

51. On the issue, whether the Claimant was discriminated against by the Respondent, this Tribunal finds that the Claimant was discriminated against by the Respondent by denying him access to employment for which he was qualified due to his perceived HIV status contrary to section 31 of the HIV and AIDS Prevention and Control Act and award the Claimant Kes. 400,000.

52. In conclusion, this claim is determined as follows:1. A declaration is hereby issued that KDF in Kenya is not excluded from the operation of the HIV & AIDS Prevention and Control Act.2. KDF is hereby directed to review and update it’s regulations, procedures and practices for enlistment and recruitment informed by scientific developments in HIV treatment and management and in compliance with the provisions of the HIV & AIDS Prevention and Control Act and existing standards and guidelines andprovide evidence of the same before this Tribunal within 90 days from the date of this judgment3. Judgement is hereby entered in favour of the Claimant against the Respondent for the sum of Kes. 1,050,000 by way of damages for lack of informed consent to test for HIV, failure to conduct HIV pre- and post test counseling and discrimination on the basis of HIV status.4. Costs are awarded to the Claimant.

DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF JULY 2024. ………………………………………………CAROLYNE MBOKU (CHAIRPERSON)DELIVERED VIRTUALLY in the presence of:HON. B. O. YOGO (MEMBER)HON. N. W. OSIEMO (MEMBER)HON. W. G. JAOKO (Prof.) (MEMBER)HON. J. N. NGOIRI (MEMBER)HON. S. K. MUSANI (MEMBER)Mrs. Katee h/b for Katindi Advocates, for the ClaimantTuitoik for the Respondent.Teku, Court Assistant.