[2024] KEHAT 168 (KLR)

SAO v HW & another (Tribunal Case 32 of 2023) [2024] KEHAT 168 (KLR) (14 February 2024) (Judgment)

Neutral citation: [2024] KEHAT 168 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 32 of 2023

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

February 14, 2024

Between

SAO

Claimant

and

HW

1st Respondent

Creative Consolidated Systems Ltd

2nd Respondent

Judgment

A. INTRODUCTION 1. Vide a statement of claim dated June 26, 2023 and filed on July 3, 2023, the claimant herein moved the Tribunal seeking the following reliefs from the respondents herein:a.General damages for emotional distress, social odium and embarrassmentb.Compensation for unlawful disclosure of her HIV status to third parties in contravention of section 22 H.A.P.C.A.c.Compensation for stigma discrimination in contravention of section 31(1)(a) H.A.P.C.A.d.Costs of this Claime.A certificate of damages and costsf.Interest on the award from the date of filing the suit till payment in fullg.Any other relief the court deems fit to grant.

2. On the same date, the claimant filed a list of witnesses enlisting herself as the only witness, his witness statement and a list of documents alongside a bundle of the enumerated documents. On September 7, 2023, the claimant filed a further list of documents and her further witness statement.

3. On July 21, 2023, the law firm of M/s Mwangi Musango & Co. Advocates filed a Notice of Appointment dated July 18, 2023 wherein they indicated that they had been appointed by both Respondents and on the same date they filed the 1st Respondent’s Response to Claim and the 2nd Respondent’s Response to Claim both dated July 18, 2023. However, on July 24, 2023, the said firm of M/s Mwangi Musango & Co. Advocates filed an amended respondents’ joint response to claim still dated July 18, 2023. In as much as this Tribunal takes cognizance of the provisions of article 159(2)(d) of the Constitution of Kenya, 2010 that provides that justice shall be administered without undue regards to procedural technicalities, the Tribunal feels that it is imperative to register its dismay in the form and manner in which the said amendment was done and urge Counsel to consider referring to the provisions of order 8 of the Civil Procedure Rules, 2010 on amendment of pleadings.

4. The Respondents also filed their List of Witnesses enlisting two witnesses and their respective Witness Statements. In addition, they filed a Respondents’ List of Documents and bundle of the enumerated documents. These pleadings were all dated July 18, 2023.

5. On 18th August, 2023, the matter proceeded with the hearing of the Claimant’s case where the Claimant testified before closing her case. On November 3, 2023, the Claimant was recalled to the stand on application of her Counsel and she testified adopting her Further Witness Statement into evidence and producing her Further List of Documents before closing her case. The Respondents’ case was heard on November 30, 2023 when two witnesses testified before close of the Respondents’ case.

B. The Claimant’s case 6. The Claimant avers that on 25th May, 2023 whilst at their place of work at KCA University along Thika road, the 1st Respondent revealed to their colleagues that the Claimant was suffering from HIV/AIDS and that the Claimant’s late husband had met his demise as a result of the said ailment. That this was done with the intention of causing the Claimant embarrassment and mental anguish. It was the Claimant’s testimony that the 1st Respondent shouted the said allegations in the presence of three supervisors and one fellow worker. According to the Claimant, all this took place when a supervisor asked the Claimant to work with the 1st Respondent who in turn did not want to work with the Claimant and thus resorted to the said abuses.

7. Still aggrieved by the 1st Respondent’s actions, the Claimant went and made a report on May 26, 2023 at Muthaiga Police Station under OB:24/26/5/23 as evidenced by CExb2. It was also the Claimant’s testimony that instead of addressing the situation, the 2nd Respondent through its management faulted the Claimant for reporting the incident to the police. When the Human Resource Manager of the 2nd Respondent summoned the 1st Respondent to the office, she refused to apologize to the Claimant. Further, that the said Human Resource Manager drafted an agreement between the Claimant and the 1st Respondent purporting that the two had forgiven each other, and when the Claimant refused to sign it, she was asked to go home and was not given a date to report back to work. The drafted agreement was produced as CExb3A.

8. Shortly after, the Claimant wrote to the 2nd Respondent asking about the status of her job (CExb3B), and through a WhatsApp message, the Claimant was asked to report to the office for redeployment, a screenshot of the message was produced as CExb3C. On 3rd June, 2023, the 1st Respondent allegedly wrote an apology letter to the Claimant (CExb3D) but the same was not given to the Claimant but was instead taken to the Police Station.

9. On cross-examination, the Claimant testified that she did not know the 1st Respondent prior to their deployment by the 2nd Respondent to work at KCA University. The Claimant also testified that she had never shared her HIV status with anyone at the workplace. It was her claim that Human Resource Manager of the 2nd Respondent was married to the 1st Respondent and that is how the 1st Respondent got to learn of the Claimant’s HIV status, as before migration to the 2nd Respondent, the Claimant used to work for Premier Ltd in which the Human Resource Manager was still acting in the same capacity therein. That at some point, Premier Ltd, the former employer, had asked the Claimant to test for HIV and that is how the Human Resource Manager must have learnt of the status and shared it with the 1st Respondent.

10. It is the Claimant’s case that as a result of the foregoing, the words of the 1st Respondent affected her as she was embarrassed.

C. Respondents’ Case 11. The Respondents denied the claim by the Claimant. The 1st Respondent testified that on the material date she was working at KCA University together with other colleagues. That despite being part of the team, on May 25, 2023, the Claimant did not join them and as such the 1st Respondent reported her absence to their supervisor. A few days later, she was called by the supervisor and was informed of the Claimant’s accusations. When they tried to address the issue, the Claimant attacked her. On another date, the 1st Respondent was called to the internal security office where she found the Claimant and the Operations Manager, but she denied the allegations leveled against her. She was then told not to report to work until further notice. She was subsequently called by the Human Resource Manager and asked to write an apology letter (RExb5) which she did in order to save her job as the Claimant had apparently indicated that she would forgive her if she apologized. The 2nd Respondent then decided to separate the Claimant and the 1st Respondent who was deployed to a different work station. The 1st Respondent testified that she was later informed that the Claimant had reported her to Muthaiga Police Station.

12. The second witness for the Respondents was the Human Resource Manager of the 2nd Respondent who adopted his Witness Statement as his evidence in chief before further testifying that he was the one who interviewed the Claimant before her employment and that he did not know nor ask the Claimant about her HIV status. In proof of his allegations he produced the Employee Personnel Data Form as RExb2. In the said form, the witness pointed out that the Claimant’s marital status was recorded as ‘divorced.’ He testified that the 2nd Respondent does not delve into the HIV status of its employees and that the Claimant was still an employee of the 2nd Respondent. He indicated that he signed the Settlement Agreement (RExb6) after the parties had agreed and that he signed it first, but that when it came to the Claimant’s turn to sign, she refused and that she was never forced to sign it.

13. In essence, the Respondents denied the claimant’s claims and in their amended respondents’ joint response to claim, the Respondents prayed for the following;a.The Claimant’s suit be dismissed at the earliest possible opportunity.b.Costs of the suit.c.Interest in (b) above at court rates till payment in full.d.Any other relief the court deems fit.

D. Issues for Determination 14. This Tribunal having read through the pleadings filed, having heard the evidence of both the Claimant and the Respondents alongside all their adopted Witness Statements, and having read through the submissions filed by the Claimant dated January 22, 2024 and those filed by the Respondents dated January 11, 2024, has identified the following as issues for determination in this matter:i.Whether the respondents unlawfully disclosed the claimant’s HIV status to third parties without the Claimant’s consent;ii.Whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination; andiii.Whether the Claimant is entitled to the reliefs sought.

E. Legal Analysis 15. This Tribunal will now analyze the issues identified above singularly as follows.i.Whether the respondents unlawfully disclosed the claimant’s HIV status to third parties without the Claimant’s consent

16. The HIV and AIDS Prevention and Control Act, No.14 of 2006 (hereinafter ‘HAPCA’) enacts at section 22(1) that;“No person shall disclose any information concerning the result of an HIV test or any related assessments to any other person…”

17. HAPCA does not give a definition of the term disclosure, however, in the Black’s Law Dictionary, the same is defined as follows;“To make known, a revelation or the uncovering of a thing that is kept hidden.”

18. In the case of Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4others [2006] eKLR, Hon. Lenaola, J (as he then was) expounded on the issue of the right to privacy.

19. This Tribunal has previously held that a person’s HIV status is a private affair and should not be disclosed to third parties without his/her consent as enacted in section 22 of HAPCA. This HIV status as covered by the aforementioned provision is both real or perceived, and so it matters not that the person disclosing the said status is unaware of the actual status of the person being offended.

20. It was the holding of this Tribunal in the case of GGOO v MOA [2021] eKLR that;“34. On the definition of disclosure, the Respondent submitted that the term means ‘to make known, a revelation or the uncovering of a thing that is kept hidden’. He contended that the evidence tendered by the Claimant was an alleged conversation between the Claimant and the Respondent, which entailed innuendo of the Claimant’s status. According to the Respondent, the question, therefore, is whether by informing the Claimant of his HIV status, the Respondent’s conduct amounted to disclosure.

35. On the one hand, we concur with the Respondent’s submissions with regard to definition of disclosure. On the other hand, we disagree that the alleged conversation was between the Claimant and Respondent only, and, therefore, cannot be construed to be disclosure. The evidence before the Tribunal clearly shows that there were at least 2 messages posted by the Respondent in a group, which alluded to the Claimant’s status, whether real or perceived. Without a doubt, the WhatsApp group did not compromise of the Claimant and the Respondent only, it had other members. In our view, this evidence tendered herein by the Claimant, which has not been countered by the Respondent, clearly indicates that there was publication of the Claimant’s status, real or perceived, to a group which group contained a large number of people.

… 37. Borrowing the words of the Learned Judge, the provisions of section 2 of HAPCA protect against unnecessary and unwarranted revelation of one’s status, which is a private affair. HIV status is a private affair whose disclosure can and will cause mental distress and injury to a person, hence the need to keep this information confidential. Having said this, it is clear that the Respondent violated the provisions of section 22 of HAPCA by unlawfully disclosing the Claimant’s status, real or perceived, to third parties without the Claimant’s consent.”

21. Considering paragraph 35 of the above cited case, it then becomes important that this Tribunal points out that for a party to successfully plead disclosure, they ought to either corroborate the said disclosure by the evidence of an independent witness, or prove that there was publication in a forum accessible by third parties.

22. This then takes us to the events as they unfolded between the parties herein. It is the Claimant’s assertions that the 1st Respondent shouted at her, disclosing her HIV status, in the corridor at their workplace in the presence of other colleagues, specifically three supervisors and one fellow worker. The abuses shouted at the Claimant were to the effect that her husband had left her because she had HIV. However, the Claimant failed to provide any evidence to corroborate her claims. None of the said three supervisors nor the one colleague was called as a witness to corroborate the allegations. Thus, this Tribunal fails to see any justification to find in favour of the Claimant in so far as the allegations that the 1st Respondent disclosed the Claimant’s HIV status to third parties.

23. In her submissions, the Claimant submits that because the 1st Respondent was directed to write an apology letter addressed to the Claimant, that clearly pointed to the fact that the supervisor did in fact find her culpable at some level and as such directed her to write the said letter. The Claimant also asks us to consider that in the letter, the 1st Respondent admitted that she never meant to harm the Claimant nor spoil her name. The Claimant submits that it is abundantly clear from the foregoing that it is more probable than not that the said words were uttered by the 1st Respondent as alleged. This Tribunal fails to find these submissions by the Claimant convincing and respectfully disagrees.

24. Section 107 of the Evidence Act, Cap.80 provides that the burden of proof lies on whoever seeks to assert the existence of a set of facts, thus the saying whoever alleges must prove. Whereas indeed the standard of proof in civil matters is on a balance of probabilities, the degree of probability ought to be reasonable, such that if the Tribunal was to observe that, ‘we think it is more probable than not’ that something occurred, then the burden is successfully discharged, but in case of the probabilities being equal in the eyes of the Tribunal, then the burden is not discharged.

25. Such probabilities need to be weighed against the evidence on record, the Claimant has referred the Tribunal to the apology letter written by the 1st Respondent and addressed to the Claimant. The said letter was produced by both the Claimant as CExb3D and the Respondents as RExb5 and the same was also read out loud during trial. The 1st Respondent writes, “I wish to sincerely apologise[sic] for misunderstanding that has arisen against me and you. It seems that you misunderstood what I told you while at our place of work…Kindly take this letter as my apology to the hurting caused. I request that we continue with our unity and relationship as before.” It is the view of this Tribunal that the apology as contained in the letter is too broad in scope to be related to the alleged disclosure, especially not having in any way mentioned the HIV status of any of the parties herein. Therefore, this Tribunal refuses to wade into the murky waters of relying on probable probabilities where the evidence on record succinctly points at the nonexistence of a fact alleged. Thus, the claim for disclosure of the HIV status of the Claimant as against the 1st Respondent fails.

26. As for the same claim of disclosure as against the 2nd Respondent, it is also the finding of this Tribunal that the Claimant failed in any way to demonstrate how the 2nd Respondent disclosed her status. It was alleged that RW2 who is the Human Resource Manager of the 2nd Respondent possibly knew the HIV status of the Claimant, having had access to her employment records given his position and that he possibly disclosed the same to the 1st Respondent who according to the Claimant is allegedly the wife to RW2. However, this alleged marriage between the 1st Respondent and RW2 was not in any way proved, and as such believing its existence would again be dwelling in probable probabilities which could be endless. RW2 also produced the Claimant’s Employee Personnel Data Form as RExb2 and in the same there is nowhere that the HIV status of the Claimant was captured. The said Form was never in any way challenged during trial and thus this Tribunal sees no reason to doubt it. Subsequently, the claim for disclosure of the HIV status of the Claimant as against the 2nd Respondent also fails.ii.Whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination; and

27. The claim for unlawful disclosure of the Claimant’s HIV status having failed, the question then becomes, whether- it is possible that the Claimant suffered stigmatization and/or discrimination.

28. Section 31 of HAPCA on discrimination at the workplace provides as follows;1. Subject to subsection (2), 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. 2. 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.

29. This Tribunal found it necessary to examine this issue despite the answer to the first issue for determination being to the negative for the reason that it largely relates to the Claimant’s Further List of Documents and Further Witness Statement filed on September 7, 2023. The Claimant was recalled to the witness stand on October 6, 2023 when he adopted the aforementioned Witness Statement as part of her evidence and produced CExb 4 and CExb5 into evidence.

30. The Claimant in the statement pointed out that her loan application was denied by the 2nd Respondent because she was going to use the money to pay legal fees to Counsel representing her in this cause. It is also the assertion of the Claimant in the statement that she informed a certain D that she would not be able to get to work on September 5, 2023 as she did not have bus fare to travel to work and because she also needed to take her children to school where they had been sent away from for failure to clear school fees arrears. On September 6, 2023, she again informed D that she would report to work late as she still lacked the necessary bus fare to get to her place of work. Both messages were sent to D by way of text messaging on WhatsApp platform and both were supposed to be relayed by D to one B, whom the claimant described as her immediate supervisor at paragraph 7 of her Further Witness Statement. The Claimant in the statement concluded by stating that she was then asked to go home and had never been recalled to her workplace since then, the 6th September, 2023.

31. In her submissions, the Claimant was of the view that the 2nd respondent had taken to frustrating the Claimant at every turn and that it was abundantly clear that she was being penalized for speaking out against the Respondents. The Claimant also took issue with the fact that no disciplinary action was taken against the 1st Respondent despite there being an apology letter from her admitting guilt. These, the Claimant believes to be evidence of discrimination.

32. On their part, the Respondents on the question of discrimination submitted that the right not to be discriminated against is a constitutional right as enshrined under article 27 of the Constitution of Kenya, 2010 and thus its hearing and determination is a preserve of the High Court as per article 165(3)(b) meaning that this Tribunal lacks jurisdiction to decide on discrimination.

33. On the first ambit of discrimination as submitted by the Claimant, this Tribunal finds that no cogent evidence was led to link the denial of the Claimant’s loan application to her HIV status, real, perceived or suspected. The evidence tendered was hearsay evidence of with the Claimant indicating that she overheard Boniface talking of her denial of the loan to Dorcas and one John. On the ambit of her being frustrated and finally terminated from her employment by word of mouth, the Claimant also failed to provide cogent evidence to link the actions of the 2nd Respondent to her HIV status. In fact, one would take her evidence in CExb4 as being evidence of her failure to fulfill her obligations at the workplace as an employee by failing to report to work and reporting to work late on the next occasion, she also chose to report to someone else rather than the person she described as her direct supervisor. However, those questions of workplace obligations are just but observations by the Tribunal, with the reason for the failure of the claim being the lack of evidence linking the Claimant’s HIV status to the treatment she views as having been discriminatory.

34. On the question of jurisdiction as raised in the Respondents’ submissions, this Tribunal holds that it does have the power to receive, hear, consider and make a determination on questions of discrimination at the workplace in so far as the HIV status of a person is concerned as envisioned by the provisions of section 31 of HAPCA as quoted herein above. This power, however, is largely dependent on the skill and art of drawing pleadings by Counsel seeking to move the Tribunal, such that if the pleadings are drawn in a manner to suggest infringement of the right against discrimination as envisaged in the Constitution , then indeed this Tribunal shall have no choice but to down its tools as that will be a preserve of the High Court, but if drawn in a manner that addresses the right against discrimination in the workplace on the basis of HIV status, as per section 31 of HAPCA, then this Tribunal shall don its fatigues, pick up its tools and gracefully report to duty with the confidence of a mediocre white man for ‘the law is very clear’.

35. Taking into consideration the foregoing, we do find that the Claimant herein failed to prove that she suffered discrimination and/or stigmatization.iii.Whether the Claimant is entitled to the reliefs sought.

36. The Claimant seeks the following reliefs:a.The Claimant’s suit be dismissed at the earliest possible opportunity.b.Costs of the suit.c.Interest in (b) above at court rates till payment in full.d.Any other relief the court deems fit.

37. Having answered the first two issues to the negative, inevitably, the answer to the third and final issue herein also is to the negative.

F. Determination 38. In conclusion, this tribunal finds and holds that the claimant has failed to prove her case against the respondents. The suit by the claimant is hereby dismissed accordingly, and given the nature of the claim, there shall be no orders as to costs.

DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF FEBRUARY, 2024. ****DELIVERED AT NAIROBI THIS 14TH DAY OF FEBRUARY, 2024. DELIVERED virtually in the presence of;……………………………………………………………….. for the Claimant……………………………………………………………….. for the RespondentHON. CAROLYNE MBOKU (Chairperson) ………………………………………………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 (Dr.) (Member) ………………………………………………HON. I. N. MUKUI (Dr.) (Member) ………………………………………………Margaret NasiekuYasmin Mohammed……………………….. Court Assistants-9- H.A.T. CAUSE NO. 32 OF 2023