[2023] KEHAT 1376 (KLR)

RNK & another v VA (Cause 03 of 2022) [2023] KEHAT 1376 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHAT 1376 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 03 of 2022

Carolyne Mboku, Chair, W.G Jaoko, NW Osiemo, B.O Yogo, S. Musani & IN Mukui, Members

November 10, 2023

Between

RNK

1st Claimant

EM

2nd Claimant

and

VA

Respondent

Ruling

1. This Ruling is on the Notice of Preliminary Objection dated 15th September 2023 by the Respondent filed in response to the Claim dated 2nd December 2021 filed on 2nd February 2022 seeking the following orders: -a.Damages for unlawful disclosure of the Claimants’ statusb.Damages for breach of confidentiality, impairment of dignity, emotional and psychological sufferingc.Costs of the suitd.Any other relief that this Honourable tribunal shall deem fit to grant

2. The Respondent entered appearance and filed a Statement of Response on 7th July 2023 and a Notice of Preliminary Objection on 15th September 2023 stating THAT:a.The Claim is defective as the same is time barred in contravention of section 4 of the Limitation Act.

3. The Tribunal gave directions that the Notice of Preliminary Objection be canvassed by way of written submissions. The Respondent filed submissions on 26th September 2023 while the Claimants filed theirs on 6th October 2023.

4. The Respondent in support of the Notice of Preliminary Objection submits that the course of action occurred on 16th December 2005 yet the Claim was filed on 2nd February 2022. The Respondent further submits that the course of action is based on tort and ought to have been brought before the Tribunal within 3 years and relied on the authority of Alfred Mutua V CFC Stanbic Bank (K) Ltd [2019] eKLR

5. The Claimants in opposing the Notice of Preliminary objection submit that the actions of the Respondent are consistent with human rights violations and that the said violations do not amount to tortious acts.

6. The Tribunal having considered the Notice of Preliminary Objection and issues identified by parties considers the following as the issues to be determined:-a.Whether the Claimants’ Claim is time barred?b.Whether this Honourable Tribunal has jurisdiction to entertain the Claim.

Determination Whether the Claimants’ Claim is time barred? 7. The principles that govern the determination of merits or otherwise of a Preliminary Objection are well settled and the articulations of Law JA and Sir Charles Newbold P. in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd [1969] EA 696 are commonly cited. According to Law JA,“… A Preliminary Objection consists of a point of law which has been preceded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

8. It is not in dispute that the course of action occurred on 16th December 2005. The Respondent claims that the Claim ought to have been brought within 3 years of the occurrence, while the Claimants claim that the cause of action is not a tort but a violation of rights guaranteed under the HIV & AIDS Prevention and Control Act and does not have a time limit within which to file the Claim.

9. Tort is defined as a Civil wrong which gives rise to an action at Common law for un-liquidated damages. The duty is created either by Common law or statute.

10. Although the Claimants sought for general damages, interest and other reliefs that the Tribunal may deem fit to grant, the juridical basis of the Claim was not indicated. However, owing to the provisions of the Constitution of Kenya and HIV & AIDS Prevention and Control Act, the Claim could be grounded in any of the following juridical bases:a.Common law tort of interference with the Claimant’s privacyb.Common law tort of breach of statutory duty imposed under section 3 and 22 HIV & AIDS Prevention and Control Act.c.Common law tort of defamation.d.Duty to uphold Constitutionally guaranteed right to dignity, privacy and reputation.

11. The Claimants’ case neatly falls into 2 juridical bases of Common law tort of interference with the Claimants’ privacy and Common law tort of breach of statutory duty imposed under section 3 and 22 of the HIV & AIDS Prevention and Control Act. This Tribunal is dressed with power to handle Claims falling under Common law tort of interference with the Claimant’s privacy and Common law tort of breach of statutory duty imposed under section 3 and 22 of the HIV & AIDS Prevention and Control Act and lacks jurisdiction to handle cases of Common law tort of defamation and Constitutional provisions under the Bill of Rights.

12. The Claimants submit that the actions of the Respondent are not tortuous acts but human rights violations. These 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 Attorney General & 6 Others [2015] EKLR where justice Mumbi Ngugi Held:a.I hereby declare that only the High Court and courts of similar status currently have jurisdiction to hear and determine matters of violation of fundamental rights and freedoms in the Bill of Rights.b.I hereby declare that in the absence of legislation enacted by Parliament to give subordinate courts original jurisdiction to hear and determine matters of denial, violation and infringement of right or fundamental freedom in the Bill of Rights, subordinate courts and tribunals, including, the 2nd respondent, do not have jurisdiction to hear and determine matters arising from the Bill of Rights.

13. The HIV & AIDS Prevention and Control Act is silent on the time frame within which a Claim should be brought and as such, no time frame can be imposed upon a Claimant. However, where a Claim is filed after a long period of time, it is incumbent upon the Claimant to explain the delay as was observed by the Court of Appeal in the case of Daniel Toroitich Arap Moi V Mwangi Stephen Muriithi & Another [2014] eKLR“--- where it is alleged [a] petitioner has taken his sweet time in preferring a claim, the burden of convincing the court that he had a good reason for moving late, lies with him; and he must explain the delay and time taken with a view to convincing the court that he could not have moved earlier.”

14. The cause of action arose in December 2005 and this claim was filed on 2nd February 2022, 16 years later. The delay in seeking legal redress and filing the suit has not been explained save for a brief statement at paragraph 7 of the 3rd witness statement which reads:In 2017, we went to KELIN (Kenya Legal and Ethical Issues Network on HIV & AIDS) in Hurlingham which was working in collaboration with Network of PLWAS. The organization was of no help.

15. This Tribunal finds that there has been inordinate delay in filing this suit and no plausible reason has been given as to why the Claim could not be filed within a reasonable time.

Whether this Honourable Tribunal has jurisdiction to entertain the Claim. 16. Jurisdiction of a Tribunal is derived from the Constitution or statute or both. In the celebrated case of The Owners of Motor Vessel Lillian “S” vs Caltex Oil Kenya Limited 1989 KLR 1653 the Court of Appeal held as follows:“Jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it has no jurisdiction”

17. The cause of action occurred in December 2005 while HIV & AIDS Prevention and Control Act, came into effect on 30th March, 2009. However, section 22 of HIV & AIDS Prevention and Control Act which provisions the Claimants intend to rely on came into effect on 1st December 2010. The law does not act retrospectively. The Respondent cannot be condemned to comply with a law that was not effective at the time the cause of action occurred. Similarly, the Tribunal cannot assume jurisdiction over matters that took place before the Act that established it was passed. We are guided by the authority of Resolution Insurance Limited & Another V Ema [2020] EKLR, where Justice Ndung’u while handling an Appeal whose cause of action arose prior to the enactment of HIV & AIDS Prevention and Control Act held:In our instant suit the claim on breach of confidentiality by the Appellants could not be possibly established against them when anchored on non-existent Law at the time of the alleged breach.

18. In conclusion and in view of all the above observations and findings, the Respondent’s Notice of Preliminary Objection is allowed. The effect of this ruling is therefore to strike out the Suit herein in its entirety for lack of Jurisdiction and for being time barred. Parties to bear their own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10THDAY OF NOVEMBER 2023Delivered Virtually In The Presence Of:HON. CAROLYNE MBOKU - (CHAIRPERSON)HON. WALTER G. JAOKO (PROF.) - (MEMBER)HON. NELSON W. OSIEMO - (MEMBER)HON. BRIAN O. YOGO - (MEMBER)HON. SOLOMON K. MUSANI (DR.) - (MEMBER)HON. JANE N. NGOIRI - (MEMBER)HON. IRENE N. MUKUI (DR.) - (MEMBER)…. Advocate for the Claimant... Advocate for the Respondent..Court Assistant