[2024] KEHAT 1477 (KLR)

RM v NA (Tribunal Case 007 of 2023) [2024] KEHAT 1477 (KLR) (17 October 2024) (Judgment)

Neutral citation: [2024] KEHAT 1477 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 007 of 2023

Carolyne Mboku, Chair

October 17, 2024

Between

RM

Claimant

and

NA

Respondent

Judgment

The Claimant's Case 1. The Claimant and the Respondent live and work in the United Arab Emirates and are members of a Facebook page group called KID where the Respondent posted that he was travelling from Kenya to Dubai. The Claimant asked him to bring her a luggage from Kenya and paid him Kes.1,000 facilitation fees.

2. The Respondent lost the luggage but promised to replace it thus prompting the Claimant to divulge that the luggage had ARV drugs. The Respondent demanded for payment before he could deliver the drugs to the Claimant for which the Claimant refused to oblige. Subsequently, the Respondent threatened to expose and disclose the Claimant’s HIV status by posting the same to KID.

3. The Claimant relied on chats exchanged between herself and the Respondent on whatsapp. She testified that the Respondent’s threat to expose her HIV status is a violation of her right to privacy and confidentiality guaranteed by the HIV & AIDS Prevention And Control Act and a violation of her fundamental right and freedom as guaranteed by the Constitution of Kenya.

4. She further testified that she was afraid that the authorities at the United Arab Emirates would deport her if they found out about her HIV status through the expose.

5. The Respondent was served with summons to enter appearance and the statement of claim on 19th July 2023 through his phone number 07***9 as evidenced by the affidavit of service dated 3rd August 2023 sworn by Mirimo David Nyongesa the Claimant’s previous representative but he did not enter appearance and file a response.

6. The Tribunal gave directions for the case to be fixed for hearing during the service week on 8th November 2023 when the Claim proceeded un-opposed.

The Law 7. Disclosure according to Black’s Law Dictionary is To make known, a revelation or the uncovering of a thing that is kept hidden.” The disclosure of a person’s HIV status without their consent tantamount to violation of the right to privacy that is protected under section 22 (1) of the HIV & AIDS Prevention & Control Act which 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.”

8. In Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR, 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;1. whether the information was obtained in an intrusive manner,2. whether it was about intimate aspects of an applicant’s personal life;3. whether it involved data provided by an applicant for one purpose which was then used for another purpose and4. 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”.

9. Further to the above quoted guiding principles, this Tribunal has previously held 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 on a platform or a forum that could be easily accessed by a third party.

10. The Claimant testified as CW-1. She adopted her witness statement and did not call an independent witness. She relied on whatsapp screen shots of conversation between herself and the Respondent. The first chat is undated and has no time log.Respondent: naenda kuchukua na mawe, mfuta iko, pay her the cash then I get your things then weekend kujia ntakutumia location na number. If you don’t trust me kama ni ngumu apo sasa nimenawa mkono I will tell her to dispose then lets meet in kewaClaimant: Imagine hakuna pesa nitakupea hadi nishike dawa kwa mkono yangu. Last time uliniosha kwa mwosho mmoja nasitaki nirudie hiyo blunder tena. Chukua dawa weekend nakuja kwako, ukinipea na mimi nasambaza pesa kwa simu. Alileta chupa ngapi?Respondent : kwani mimi naeza kuwa nakudangamnya nichome mafuta and am trying to help you. So if you play with me utaloose coz I know whole of your story. Alileta 4 bottles and it costed me. I had to lie wallai you will pay for it. Ngoja..Claimant: …4 bottles hiyo ni sawa. I will pay when you give me. Hata hizo zingine I paid without seeing so I value my life more. Tell me weekend saa ngapi tu meet.Respondent : I have helped you to bring those medicines to you but unaona ni kama I won’t give you na weekend utakujia or nikuletee. Mwenye alileta kelele ndo mob so it’s upto you. Will tell her to throw them away then tupatane kewaClaimant … haha uataka kuwekwa kewa pia wewe? Fanyia mwengine vile unaeza taka kufanyiwaRespondent: you wont kill innocent people who came to hustle for their familiesClaimant: so kewa was your agenda all along?Respondent: .. No, it was not my agenda ni vile unanibeba and I told you last year nililipa excess mzigo za mtu then he ended up lyingClaimant: huyo ni huyo. Mimi I am trustworthy.Respondent: nilikuambia aje?Leo nakuanika sawa pamoja na ARV zakoYou will have to do as I say. Tired of empty promises na sina Ukimwi mimi.

11. The above quoted conversation was privately exchanged between the Claimant and the Respondent. For disclosure to crystalize as envisaged under section 22(1) of the HIV & AIDS Prevention And Control Act, one 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. In Hat Cause 60 Of 2022 EKM V MMM. This Tribunal held:The message was privately sent to the Claimant by the Respondent and not to the family WhatsApp group. It was therefore a private chat between the Claimant and the Respondent. The Respondent testified that she only meant to tell the Claimant to take her ARVs. This being a private chat between 2 people one of whom is being talked about does not meet the threshold of proof of disclosure of HIV status to third parties as envisioned under Section 22(1) of the HIV and AIDS Prevention and Control Act as the message was personally directed to the Claimant.

12. Section 22(1) of the HIV and AIDS Prevention and Control Act does not envision a situation where one threatens to disclose the HIV status of a person to third parties. However, Section 3 of the HIV and AIDS Prevention and Control Act provides:The object and purpose of this Act is to—a.promote public awareness about the causes, modes of transmission, consequences, means of prevention and control of HIV and AIDS;b.extend to every person suspected or known to be infected with HIV and AIDS full protection of his human rights and civil liberties by—i.Prohibiting compulsory HIV testing save as provided in this Act;ii.Guaranteeing the right to privacy of the individual;……

13. One’s HIV status is a private affair and should be treated as so. Even though a threat remains to be just a threat until acted upon, the Respondent has no right to disclose the Claimant’s HIV status to third parties without her written consent. It’s therefore imperative for this Tribunal to protect and guarantee the right to privacy of the Claimant.

14. In view of the foregoing this tribunal finds that the Claimant has not proved that the Respondent’s behaviour of threatening to disclose the Claimant’s HIV status amounts to violation of the Claimant’s right to privacy and confidentiality guaranteed by the HIV & AIDS Prevention And Control Act.

15. We have been invited to make a declaration that the Respondent’s behaviour of extorting money from the Claimant on the basis of her HIV status amounts to violation of her fundamental right and freedom as guaranteed by the Constitution of Kenya. The violations of human rights spelt out by the Applicants as supported by the provisions of Article 31 of the Constitution relied on by the Claimant in essence fall under the ambit of the Bill of Rights for which the Tribunal does not have capacity to determine. See the case of Royal Media Services Ltd V Ag & 2 Others where justice Mumbi Ngugi observed:“….I am unable to read in the provisions of article 23(2) or 7 of the sixth schedule to the constitution an intention to confer on the HIV Tribunal the jurisdiction to hear and determine questions on whether a right or fundamental freedom has been violated, infringed or threatened as provided under Article 22 of the constitution”

16. The Claimant has prayed for an injunction order against the Respondent from disclosing the Claimant’s HIV status on social media or any other platform. The conditions for grant of injunctions were set out in Giella Vs. Cassman Brown & CO., LTD. [1973] E.A. 358 where it was held:-“First, an applicant must show a prima facie case with a probability of success.Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages.Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience

17. The Claimant asserts that the Respondent’s threats to disclose her HIV status to third parties is a violation of her right to privacy as protected by the provisions of the HIV & AIDS Prevention and Control Act. She testified that she will be deported by the authorities of United Arab Emirates should they get to know of her HIV status through the expose thereby loosing her only source of livelihood.

18. This Tribunal while exercising it’s power to Guarantee the right to privacy of the individual finds that the Claimant has established a prima facie case with a probability of success and shall suffer irreparable damage. This prayer is therefore granted.

19. Having found that the Claimant has not proved that the Respondent disclosed her HIV status to third parties as per the provisions of Section 22(1) of the HIV & AIDS Prevention and Control Act, the prayer for General damages fails as the violation did not materialize.

20. Seeing that the claim partially succeeds, the Claimant is awarded half the costs of the Claim to be assessed by the Deputy Registrar.Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF OCTOBER, 2024. CAROLYNE MBOKU - (CHAIRPERSON)DELIVERED VIRTUALLY in the presence of:HON. NELSON. W. OSIEMO -(MEMBER)HON. BRIAN. O. YOGO - (MEMBER)HON. PROF.WALTER. G. JAOKO -(MEMBER)HON. JANE. N. NGOIRI -(MEMBER)HON. DR. SOLOMON. K. MUSANI - (MEMBER)HON. DR. IRENE. N. MUKUI -(MEMBER)Ms. Robi Advocate for the Claimant, present.No appearance for the Respondent.Yasmin, Court Assistant