[2021] KEHAT 78 (KLR)

REPUBLIC OF KENYA

IN THE HIV AND AIDS TRIBUNAL AT NAIROBI

HAT CASE NO. 010 OF 2020

S. Y. S ……………………………………………………………1STCLAIMANT

K. N ……………………………………………..……………..2NDCLAIMANT

VERSUS

B. M. ……………………………………………………….. 1STRESPONDENT

S. A …………………………………………………………2NDRESPONDENT

JUDGEMENT

A INTRODUCTION

1. On 18th December 2020, the Claimants herein filed their Statement of Claim dated 16th December 2020 in which they seek judgement against the Respondents, jointly and severally, for;

i. A declaration that the Claimants have suffered a violation and infringement of their rights as guaranteed and protected under section 18,21 and 22 of HIV & AIDS Prevention and Control Act, Cap 246A;

ii. A permanent injunction restraining the Respondents, their representative or assignees from further unauthorized disclosure and stigmatization;

iii. Compensation in the nature of general damages in respect of impaired dignity, pain and suffering and /or emotional and psychological suffering as a result of wrongful disclosure;

iv. Interest on (iii) at Court’s rate;

v. Cost of the suit; and

vi. Any other relief that the Tribunal deems fit to award.

2. The 1st Respondent filed her Statement of Defence dated 8th February 2021 denying the Claimants’ allegations. During court attendance on 17th June 2021, the 2nd Respondent was granted leave to file her Defence. However, by the commencement of the hearing of the suit on 6th August 2021, the 2nd Respondent had not filed any document herein.

3. From the evidence tendered before this Tribunal, there are several undisputed facts. The Claimants and Respondents knew each other and are neighbours who previously enjoyed peaceful co-existence. Due to the good relations between the parties herein, the 2nd Claimant lent the 2nd Respondent some money, which according to the 2nd Claimant, the 2nd Respondent was yet to pay back. The said debt was the genesis of the altercation between the parties in this instance. This altercation eventually resulted in a criminal case, where the 2nd Respondent pleaded guilty and was fined. In addition to the criminal case, the Claimants pursued the case herein.

B. CLAIMANTS’ CASE

4. The Claimants, in support of their claim, filed witness statements dated 16th December 2021, Bundle of Documents dated 16th December 2020 and Further Documents filed herein on 1st February 2021.

5. It was the testimony of the 1st Claimant that at all the material time she was residing in Kibera and working as a hairdresser. The Respondents were well known to her since the 1st Respondent was a daughter to the Claimants’ neighbour, while 2nd Respondent was a friend to the 1st Respondent.

6. The 1st Claimant testified that she filed this Claim because she was insulted by the Respondents about her status. Additionally, the 1st Respondent told the Claimant to go and report wherever she wanted. It was the 1st Claimant’s testimony that she did not respond to the insults.

7. It was also the testimony of the 1st Claimant that due to the utterances by the Respondents, people have now come to know the status of the 1st Claimant and further, that rumours have now spread about her status. The 1st Claimant noted that there were people within the compound and others passing outside who overheard the utterances by the Respondents.

8. The 1st Claimant further testified that her status was disclosed without her consent and as a result of the said disclosure, the 1st Claimant has faced stigma. Additionally, her business as a hairdresser has been greatly affected.

9. On cross examination by the 1st Respondent, the 1st Claimant indicated that she was in the house when she heard the 1st Respondent insulting her and the 2nd Claimant, who is her daughter, but the 1st Claimant did not respond to the insults. The 1st Claimant remained in the house for a while, but went outside later. She overheard the 1st Respondent say “mwende mkunywe dawa zenu hile hamtaki kukunywa”.

10. On cross examination by the 2nd Respondent, the 1st Claimant testified that the 2nd Respondent also uttered insults towards the 1st Claimant.

11. The 2nd Claimant testified that she is a student in Meru where she attends vocational training. She confirmed that both Respondents are well known to her, the 1st Respondent being their neighbour while the 2nd Respondent was a friend to the 1st Respondent.

12. It was the testimony of the 2nd Claimant that the Respondents insulted her about her perceived status by uttering the words “wewe kwenda huko. Enda umeze dawa zako kama zimekushinda.” Further, the 2nd Claimant testified that the Respondents insinuated that the 2nd Claimant was infecting others with HIV.

13. It was also the testimony of the 2nd Claimant that Respondents disclosed her status without her consent and as a result of the said disclosure, the 2nd Claimant now gets funny looks from the neighbours and passers–by, all of whom overheard Respondents insulting the 2nd Claimant regarding her perceived status.

14. In narrating the happenings of the material day, the 2nd Claimant testified that she had gone to the 1st Respondent’s house in order to get her money from the 2nd Respondent. The 2nd Claimant was not aware that the 2nd Respondent was in the 1st Respondent’s house. Both Respondents came out of the house and began insulting the 2nd Claimant, making utterances about the 2nd Claimant’s status. It was the 2nd Claimant’s testimony that she did not respond to the insults but instead reported the matter to the area chief.

15. In support of her claim, the 2nd Claimant produced a Charge Sheet in respect of a criminal case between the parties herein. The 2nd Claimant testified that the criminal proceedings are as a result of a physical assault by the 2nd Respondent, who bit the 2nd Claimant’s breast during the commotion.

16. It was the 2nd Claimant’s testimony that the disclosure has affected her studies. Even when she attends classes virtually, the 2nd Claimant is unable to concentrate due to the thoughts running through her mind. Further, the 2nd Claimant has been subjected to stigma by the community and friends. All these have been highlighted in her witness statement.

17. On cross examination by the 1st Respondent, the 2nd Claimant admitted that when she went over to the 1st Respondent’s house that morning, she was upset. This was because of the unpleasant manner in which the 1st Respondent had spoken to her the previous day. The 2nd Claimant testified that she did not even enter the house of the 1st Respondent, but the Respondents came out of the house and began hurling insults at her.

18. On the issue of her studies, the 2nd Claimant testified that she was on attachment, but still undertaking online classes.

19. In support of their claim, the Claimants called CW, F.B, who is a Community Health Volunteer. CW3 testified that as a Community Health Volunteer, he regularly visits his constituents, one of whom is the 1st Claimant. On Friday, 2nd October 2020, CW3 went to visit the Claimants, where he found the Respondents embroiled in an altercation with the 2nd Claimant. It was CW3’s testimony that he heard the 2nd Respondent say that the 2nd Claimant was sleeping with men so as to get money to buy clothes, and that the 2nd Claimant is HIV positive and spreading the virus among the men. It was also CW3’s testimony that he heard the 1st Respondent say, “Kama dawa zako zimekushinda kumeza, wachana nayo. Na wewe hata uko nayo.”

20. CW3 testified that there were many people around during the altercation who heard the words spoken by the Respondents. As a result of the unlawful disclosure, the Claimants were negatively affected. It was CW3’s testimony that the 2nd Claimant now avoids going to the support group meetings, while the 1st Claimant does not attend to her salon as often as she used to. CW3 noted that the health and wellbeing of the Claimants have also been affected.

21. On cross examination by the 1st Respondent, CW3 stated that the altercation took place between 8am and 9am. He witnessed the 1st Respondent assaulting and insulting the 2nd Claimant. It was CW3’s testimony that he could not confirm whether or not the 2nd Claimant got injured following the altercation.

C: RESPONDENTS’ CASE

22. The Respondents called three witnesses to testify in their defence. The 1st Respondent, a student at a Hair and Beauty College, confirmed that the Claimants are her neighbors. It was the testimony of the 1st Respondent that on the material day, at about 7am, the 2nd Claimant woke up and began insulting people. The 1st Respondent testified that the 2nd Claimant was shouting about lending her things to people who don’t return them.

23. The 2nd Claimant came to the door of the 1st Respondent’s house, claiming some money from the 2nd Respondent. The 2nd Respondent, who was in the house, asked the 2nd Claimant to wait for her outside the house, since this was not her house.

24. It was the 1st Respondent’s testimony that the 2nd Claimant kept insisting that she wanted her things. The 2nd Claimant then insulted the 2nd Respondent about leaving her son at home all alone whilst she spent the night at the home of the 1st Respondent.

25. The 1st Respondent testified that she and the 2nd Respondent went back to bed, and when they woke up later that morning, the 2nd Claimant resumed her insults to the 2nd Respondent. It was at this juncture that the altercation ensued. It was the 1st Respondent’s testimony that the 2nd Claimant attacked the 2nd Respondent. The 1st Claimant, who was previously standing by the door, joined in the melee. The Claimants pulled at the 2nd Respondent’s hair. The 1st Respondent testified that she tried to intervene, but she was shoved away.

26. The 1st Respondent testified that later, the Claimants went to the chief to report the matter. The Claimants’ version to the chief was that they had gone to the 1st Respondent’s to collect their items when they were attacked by the Respondents. The 1st Respondent testified that the chief summoned the parties, made inquiries into the matter and sent them back home with a word of caution. 2 months later, the Claimants reported the matter at the Kilimani Police Station.

27. It was the 1st Respondent’s testimony that the first time she had of the alleged utterances by herself and the 2nd Respondent was in these proceedings.

28. On cross examination, the 1st Respondent denied making any utterances about the Claimants’ status. The 1st Respondent testified that she has never known the status of the Claimants, though she has lived next to them for a very long time. The 1st Respondent could not confirm whether or not the 2nd Claimant was injured during the altercation.

29. The 1st Respondent denied ever seeing CW3 on the material day.

30. In her testimony, the 2nd Respondent stated that she was asleep at about 7am, when the 2nd Claimant, who was outside washing dishes, began talking very loudly about claiming her debts. The Respondents did not wake up. But when the 2nd Claimant kept at the noise making, the 2nd Respondent then woke up to find out what was bothering the 2nd Claimant.

31. It was the 2nd Respondent’s testimony that the 2nd Claimant returned at about 8. 30am, making noise about some money owed to her by the 2nd Respondent. The 2nd Claimant began insulting the 2nd Respondent. The verbal exchange was quickly followed by a physical assault by the 2nd Claimant on the 2nd Respondent. The 1st Claimant, who was at the door, then joined in and together, the Claimants pulled out the 2nd Respondent’s hair and tore the 1st Respondent’s clothes. It was at this point that the 2nd Respondent bit the 2nd Claimant in self-defence. The 2nd Respondent confirmed that the 1st Respondent stepped in to try and stop the fight, but was shoved off by the Claimants.

32. The 2nd Respondent confirmed that the matter was reported to the chief, who sent them away with a word of caution. On cross examination, the 2nd Respondent stated that the chief did not mention anything about insults, but instead cautioned them about the fighting. The 2nd Respondent also stated that she was not aware of the Claimants’ status prior to the proceedings herein.

33. With regard to the criminal proceedings, the 2nd Respondent confirmed that the proceedings against her were concluded. The 2nd Respondent had pleaded guilty to the assault and had already been fined. However, the case against the 1st Respondent was still pending.

34. RW3 is the mother to the 1st Respondent. She testified that early that morning, she heard the 2nd Claimant talking loudly about people taking her things and insulting her. RW3 did not know that the 2nd Claimant was referring to the 2nd Respondent, who had spent the night at their home. Before long, RW3 heard a knock at the door. The 1st Respondent answered the door, only for the 2nd Claimant to begin yelling about people not returning her things.

35. It was RW3’s testimony that she found the Claimants attacking the 2nd Respondent, which resulted in the 1st Respondent’s torn clothes as she tried to separate them. RW3 confirmed that parties were summoned by the chief following the altercation, and the matter was resolved amicably. A month later, RW3 was surprised to see the Police arrest the 1st Respondent.

36. On cross examination, RW3 confirmed that she was present when the altercation between the Respondents and 2nd Claimant took place. She confirmed that the 2nd Claimant is the one who instigated the fight, but no words were exchanged between the Respondents and 2nd Claimant. Although she later heard that the 2nd Claimant had been bitten, RW3 did not see the same take place.

37. It was RW3’s testimony that there were no women present during the fight, other than the 1st Claimant and RW3. Only men witnessed the fight, and CW3 was not among those present.

D: ISSUES FOR DETERMINATION

38. After analysing the pleadings, evidence and the oral submissions by the Claimants and 1st Respondent, these are the issues for determination by this Tribunal;

i. Whether there was unlawful disclosure of the Claimants’ HIV status to third parties by the Respondents;

ii. Whether there was an impact on the Claimants as a result of the actions of the Respondents; and

iii. Whether the Claimants are entitled to the reliefs sought.

E: LEGAL ANALYSIS

39. Having listened to the testimonies of the witnesses and read the pleadings filed herein, this case paints itself clearly as one of the proverbial iceberg, where the tip represents a mere fraction of what lies underneath the surface. From the narrative presented by the Claimants, Respondents and their respective witnesses, the case can be summarised as follows; The 2nd Claimant sold some cosmetics or hair products to the 2nd Respondent, and some money was due and owing to the 2nd Claimant in this respect. On 2ND October 2020, fuelled by anger of not having been paid, the 2nd Claimant woke up and went to her neighbour’s house, the 1st Respondent, to claim her money, apparently unaware that the 2nd Respondent had spent the night at the 1st Respondent’s house. An altercation ensued between the 2nd Claimant and the Respondents, words were exchanged and the confrontation led to physical assault.

40. The matter found its way to the offices of the area chief, who summoned the parties, cautioned and counselled them to live harmoniously. Aggrieved by this outcome, the 2nd Claimant then pursued criminal charges against the Respondents, and the 2nd Respondent subsequently pleaded guilty. According to the 1st Respondent, the Claimants eventually dropped the case against her. Still, the criminal case was not enough. The Claimants then pursued the claim herein.

41. Noting that the parties herein are long-time neighbors, the 2nd Claimant and the 1st Respondent having known each other for a better part of their lives, the Tribunal implored the parties to seek an amicable solution outside of these proceedings. From our assessment, it would seem that the 1st Claimant herein and the 1st Respondent’s witness, her mother, were dragged into a squabble between their daughters and their friend. Definitely, leaving such an issue for determination through judicial proceedings in an adversarial system does not augur well for the longstanding relations between them. However, since the parties were not able to reach an amicable solution, it then falls to us to make a determination herein.

42. We will now proceed to analyse each issue singularly.

(i) Whether there was unlawful disclosure of the Claimants’ HIV status to third parties by the Respondents

43. The Claimants submitted that in addition to the Claimants’ testimonies, the Claimants called a witness, F.B, who was present on the material day, who provided corroborative evidence of the utterances by the Respondents against the Claimants. The Claimants relied on the provisions of section 22 of the HIV and AIDS Prevention and Control Act (hereinafter ‘HAPCA’) as well as the cases of E. O. D vs O. C & Another [2020] eKLR and MCM –vs- BOO [2019] eKLR in which the issue of discharging the burden of proof by the claimant was addressed. The Claimant also referred to the case of M.M –vs- MNM & Another [2020]eKLR, particularly at paragraph 42 on the issue of violation of the right to privacy.

44. In her submissions, the 1st Respondent noted that there were discrepancies between the testimonies of the Claimants and that of their witness, F.B. While the 2nd Claimant testified that the Respondents insulted the 2nd Claimant before assaulting her, the witness stated that the insults began after the physical assault.

45. The 1st Respondent observed that the 2nd Claimant testified to having gone to the 1st Respondent’s house to claim her money from the 2nd Respondent, yet the 2nd Claimant claimed that she did not know that the 2nd Respondent was in that house at the time. The 1st Respondent contended that this in itself raises eyebrows at the veracity of the claim by the 2nd Claimant.

46. Indubitably, to prove disclosure one must 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. For a claimant to succeed in a claim for disclosure as provided under section 22 of HAPCA, the claimant must provide a witness to corroborate the evidence of disclosure in order to discharge that burden in respect of disclosure.

47. The gist of these words as enunciated in our decision in S. M. –vs- E. N. O., HAT no. 18 of 2018 is that a claimant must call a witness to confirm that, indeed, there was disclosure of the claimant’s status to third parties, including the witness. This witness is a crucial key to the puzzle and assists the Tribunal in piecing together a claimant’s averments and painting the picture of the circumstances under which the disclosure occurred. The witness’s account complements and corroborates that of the claimant.

48. Having said this, the mere fact of calling a witness does not discharge a claimant’s burden of proving, on a balance of probabilities, that the events that the claimant avers are likely to have taken place. In the case of D.T.

Dobie & Company (K) Ltd –vs- Wanyonyi Wafula Chebukati [2014] eKLR,the court cited with approval the decision of Denning J., in Miller –vs-Minister of Pensions [1947], where it was held that:

“The degree is well settled. It must carry a reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say; we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case which the tribunal cannot decide one way or the other which evidence to accept, where both parties explanations are equally unconvincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” (emphasis ours)

49. In this instance, the Claimants’ witness’ account of the events lends itself to more queries as opposed to assisting in piecing the Claimants’ narrative together. First, CW3 is a member of the same support group to which the Claimants belong. Indeed, he testified that he frequently visits the Claimants at their home. This in itself lowers the credibility of this particular witness as an independent, unbiased witness.

50. Secondly, despite being at the scene, CW3 could not confirm whether or not the 2nd Claimant was injured. Certainly, if CW3 was present and witnessed the fight, one would assume that he would have heard someone wince in pain following an injury. What is even more interesting that as a Community Volunteer Worker, CW3 did not feel inclined to take any action to separate the parties that were embroiled in the fight.

51. Further, the Respondents and RW3 admit that there were people present, but all deny seeing CW3 on the day. If CW3 regularly visited the Claimants, then his would be a face that is familiar to the 1st Respondent and RW3.

52. All these observations beg the question whether CW3 was actually present during the altercation. It is these queries that make it difficult for the Tribunal to rely upon the evidence of CW3 as evidence to support the Claimants’ case.

53. Of course it is not lost on us that RW3 is related to the 1st Respondent, and her testimony is also likely to be biased. It is not fathomable that the 2nd Claimant and Respondents could have engaged in a physical altercation without exchanging words. Even their demeanour before this Tribunal during the hearing was one to suggest that any altercation between them would have involved an exchange of words. Nonetheless, we reiterate that the burden of proof herein lies on the Claimants, who, in this instance, have not discharged it to the required standard. Therefore, in borrowing the words of the Learned Judge in D.T Dobie & Company Ltd case (supra), it is trite that where both parties’ explanations are equally unconvincing, the party bearing the burden of proof will lose, because the requisite standard has not been attained. Thus this limb of the claim fails.

(ii) Whether there was an impact on the Claimants as a result of the actions of the Respondents

54. The Claimants submitted that their status in society changed as a result of the unlawful disclosure of their status, resulting in rejection and stigma. It was the 2nd Claimant’s testimony that her studies have been affected negatively by this disclosure, while the 1st Claimant is unable to get customers at her salon. The Claimants relied on the case of G.G.O.O.-vs- M.O.A [2021] eKLR, where it was held that HIV disclosure results in stigma and discourages individuals from accessing treatment and/or staying in care.

55. On her part, the 1st Respondent submitted that the 2nd Claimant referred to being on attachment, which can only be done once one has completed their studies.

56. It goes without saying that for one to claim that a certain act or omission had a negative impact on them, one needs to provide the evidence in support of this assertion. It would be fair to assume that it is difficult to provide evidence of the effects of stigma on one’s life, or of emotional and psychological suffering as a result of unlawful disclosure.

57. However, having found that there was no unlawful disclosure of the Claimants’ status, it stands to reason that this limb of their claim, too, must fail.

(iii) Whether the Claimants are entitled to the reliefs sought

58. The first two limbs of the claim having failed, then this limb, too, must fail.

F: DETERMINATION

59. In conclusion, the suit by the Claimants against the Respondents is hereby dismissed. Each party shall bear their own costs.

Orders accordingly.

DATED AT NAIROBI THIS 5TH DAY OF NOVEMBER 2021

DELIVERED AT NAIROBI THIS 5TH DAY OF NOVEMBER 2021

DELIVERED VIRTUALLY IN THE PRESENCE OF:

MS. WACHIRA FOR THE CLAIMANTS

S. Y. S – 1stClaimant

K. N. – 2ndClaimant

S. A - 2ndRespondent

Helene Namisi (Chairperson)

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Melissa Ng’ania

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Justus T. Somoire

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Dr. Maryanne Ndonga

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Abdullahi Diriye

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Tusmo Jama

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Dorothy Kimengech

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