[2021] KEHAT 633 (KLR)

REPUBLIC OF KENYA

IN THE HIV & AIDS TRIBUNAL AT NAIROBI

H.A.T. CAUSE NO. 008 OF 2017

SKM……………………………………………………..……..CLAIMANT

-VERSUS-

C. B. M………………………………………….………1ST RESPONDENT

MEDICAL RECEPTION STATION,

KAHAWA BARRACKS………………….……………2NDRESPONDENT

KENYA ARMY HEADQUARTERS………...……….3RD RESPONDENT

PRINCIPAL SECRETARY

MINISTRY OF DEFENCE…………………………….4TH RESPONDENT

JUDGEMENT

A. Introduction

1. By undated Statement of Claim filed on 17th August 2017, the Claimant herein prays for Judgment against the Respondent for general damages and costs of the suit. On or about 12th October 2017, the Statement of Claim was amended to enjoin the 3rd and 4th Respondents herein.

2. At the time of filing this suit, the Claimant was a resident at [Particulars withheld], the 2nd Respondent herein, where she resided with her family. On or about 1st April 2017, a report was made to the Medical Reception Station (2nd Respondent) alleging that the son of the Claimant had raped another minor within the [particulars withheld]. Tests were subsequently conducted that confirmed that the girl was not raped.

3. The Claimant avers that on or about 11th April 2017, a policeman within the [particulars withheld] known as JK and the father of the girl who was allegedly raped, JM, took the Claimant’s son to the Medical Reception Station within the [particulars withheld] for purposes of conducting an HIV test on him. This was done without the Claimant’s consent. The Claimant avers that the reason for this was because the 1st Respondent, a nurse, had disclosed the Claimant’s status without her consent. The Claimant avers that the doctor on duty, however, did not carry out the tests.

4. Following the incident, the Claimant’s son has suffered emotional trauma since he has been isolated and other children are often warned not to play with him. Further, the Claimant has been excommunicated from her friends and colleagues. The Claimant’s case against the 2nd, 3rd and 4th Respondents is for vicarious liability for the acts of the 1st Respondent.

5. The 2nd, 3rd and 4th Respondents entered appearance in October 2017 and filed their defense dated 23rd October 2017. In their defense, the Respondents basically deny the allegations by the Claimant.

B. History of the Case

6. This matter has a long history that lends credence to the final determination of the suit.

7. Along with the undated Statement of Claim filed on 17th August 2017, the Claimant filed Notice of Motion dated 16th August 2017 seeking a temporary injunction restraining the 1st Respondent, her servants, agent, advocates or otherwise from interfering with the Claimant’s occupation, tenancy, access to and egress from and quiet and peaceful enjoyment of the Claimant’s residence at [particulars withheld]. On 25th August 2017, this Tribunal granted the Claimant a temporary injunction restraining the 1st Respondent from evicting or harassing the Claimant in any way. Inter partes hearing was fixed for 1st September 2017.

8. On 1st September 2017, Counsel for the Claimant informed the Tribunal of the difficulties he had encountered as he tried to serve the Order upon the Garrison Officer at [particulars withheld]. He subsequently made an oral application to amend the Statement of Claim to enjoin the 2nd to 4th Respondents, which application was allowed.

9. On 13th October 2017, the Claimant filed yet another Notice of Motion dated 12th October 2017 seeking similar temporary injunction as well as an enforcement order directed at the 3rd and 4th Respondents.

10. On 24th November 2017 when the matter came up for inter partes hearing of the Application, Counsel for the 2nd to 4th Respondents informed the Tribunal that he had instructions to request that the matter be referred to the Ministry of Defence for resolution, since the Claimant was an employee of the Department of Defence. Pursuant to the provisions of Article 159 of the Constitution and in the spirit of alternative dispute resolution, the Tribunal directed that the matter be settled amicably between the parties as requested, on condition that any settlement reached be recorded in the matter as an order of the Tribunal.

11. On 6th April 2018, Counsel for the parties informed the Tribunal that although a formal meeting had been held between the Claimant and Respondents, no settlement had been arrived at yet. The Tribunal agreed to give the parties one more chance to settle the matter amicably, failing which, the matter would be fixed for hearing. By 27th April 2018, no settlement had been arrived at.

12. On 5th June 2018, the Claimant filed a Notice of Intention to Act in Person. On 17th August 2018, Counsel for the 2nd to 4th Respondents informed the Tribunal that the military was intent on taking internal action. A board of inquiry had been established and had finalized its report. The Report was with the Army Commander awaiting decision by the Chief of Defence Forces and would be ready within 2 weeks. On her part, the Claimant was intent on proceeding with the suit herein, noting that she did not believe that she would receive any justice through the internal mechanisms. The matter was then fixed for mention.

13. On 14th September 2018, Counsel for the 2nd to 4th Respondents informed the Tribunal that following allegations by the Claimant that she had no faith in the Board of Inquiry, it was the view of the 2nd to 4th Respondents that it was not in their interest to sort out this matter administratively. As such, this matter ought to proceed to hearing. The Claimant informed the Tribunal that she had been thrown out of the camp and could not access her medical file. She prayed to be able to access her medical file as well as seek legal representation in the case.

C: The Claimant’s Case

14. On 10th July 2020, the Claimant began her case. She testified that she currently resides in Mwihoko, having previously resided at [particulars withheld]. The Claimant adopted her witness statement dated 16th August 2017 as part of her testimony.

15. The Claimant testified that on 11th April 2017, at about 7pm, a man named Koech (RW8) came to the Claimant’s home and found her two children. The man was accompanied by Sr. Sgt. J.M (RW 7). The two men grabbed the Claimant’s son, aged 12, and told him that they would take him to have an HIV test conducted on him. The Claimant was not present at the time and she arrived home later to find her son gone and his sister in tears.

16. The Claimant testified that she went to the military police to report the incident. She found two officers on duty, who advised her to search for the missing child at the Hospital or Mortuary since he was not at the Police Station. The Claimant then proceeded to the Medical Reception Station, Kahawa Barracks (2nd Respondent), where she found a nurse on duty, C.M. The nurse informed the Claimant that her son was in the ward.

17. The Claimant inquired as to her son’s health since he is diabetic. The nurse informed the Claimant that the problem was even bigger than diabetes, that the child had been brought in for HIV testing because the Claimant was a person living with HIV. The nurse, however, refused to conduct the HIV test without the Claimant’s consent.

18. When the Claimant saw her son later that evening, he was in tears. The Claimant testified that she later learnt that one J.K a.k.a Koech (RW8) had tortured her son. Her son ended up spending the night in hospital. His sugar levels were high. The Claimant testified that in her experience, stress could trigger the sugar levels.

19. The Claimant went home for the night and returned to the hospital the following day. Her son’s sugar levels were still elevated. The 1st Respondent came into the ward alone, carrying an insulin injection. The 1st Respondent wanted to administer the injection on the child’s abdomen but he refused. The 1st Respondent then retorted “wacha kunisumbua. Unataka kukufa na ukimwi kama mama yako?”

20. It was the Claimant’s testimony that the 1st Respondent had treated the Claimant on numerous occasions. The Claimant had first disclosed her status to the 1st Respondent sometime in 2015, when the Claimant fell ill and sought treatment at the facility. The Claimant testified that when the 1st Respondent uttered the offensive words to her son, RW7 was present, standing between the door and the kitchen. It is likely that he overheard the 1st Respondent.

21. The Claimant testified that upon hearing the remarks by the 1st Respondent the child became inconsolable. The 1st Respondent simply remarked, “unataka kunikufia kwa mikono? Unajua una sukari pia na ukimwi?”It was the Claimant’s testimony that RW7 then came into medical facility, at which point the 1st Respondent told RW7, “wewe weka mtoto wako kwa PEP. Hawa wamezoea kuishi na ukimwi.”

22. The Claimant testified that her son was inconsolable. He even removed the drip from his arm. This was the first time that the Claimant heard the 1st Respondent speak about the Claimant’s status.

23. It is the Claimant’s testimony that she was later removed from the Camp as rumors of her status spread. As a result, she has faced stigma and embarrassment. She had earlier sought and obtained an interim injunction to stop her eviction but the Administration ignored and proceeded to evict her. Additionally, the Claimant’s marriage has been affected by the disclosure. Her husband separated from her. On cross exam, the Claimant stated that the separation was because her husband did not want any embarrassment. Her son is depressed, lonely and keeps to himself. His grades have been adversely affected. The Claimant’s son has been receiving counseling treatment.

24. On cross examination, the Claimant stated that when she reported the issue of her missing son to the military police, she did not get any document to prove the same. However, when she later reported the two gentlemen (RW7 and RW8) to the Kasarani Police, she was given an OB number, which she did not produce herein. She further testified that whenever she was treated at the 2nd Respondent facility, she would not be furnished with any documentation except the prescription form.

25. On the issue of witnesses, it was the Claimant’s testimony that no one would be willing to corroborate her evidence for fear of eviction from the camp. The Claimant further testified that this matter once went before the military board for investigation but she was never furnished with a report.

26. On further cross examination, the Claimant noted that her problem was with the 1st Respondent, an employee of the 2nd Respondent, who disclosed her status to her son. Since she is the one living with HIV, there was no need for her son to suffer the embarrassment and stigma. She testified that each time Summons would be received at the Camp, she would receive more threats. Although there was an attempt to settle the matter out of court, nothing came of it.

27. CW2, P.G, is a counselling Psychologist who has been in the field for a total of 25 years, although she did not have any document to prove her medical qualifications. She testified that she knows the Claimant and the Claimant’s son, who is her client. CW2 has been offering child psychotherapy to the Claimant’s son and their last session son was on 25th June 2020. She had held a total of 3 sessions with the Claimant’s son, although she could not recall the exact dates. CW2 produced a Report dated 25th June 2020. (Claimant’s Exhibit 1)

28. It was CW2’s testimony that the Claimant’s son should not testify before this Tribunal because it is not in his best interests. She noted that the Claimant’s son is not in a proper state of mind to be able to testify, having suffered pain. CW2 opined that the child harbors a lot of bitterness and anger that has made him irritable.

29. On cross examination, CW2 confirmed that she had also had opportunity to review the Claimant’s son’s medical history from the documents that had been availed to her, although she did not produce the said documents before this Tribunal. These medical documents had been prepared at the St. Francis Community Hospital. She further relied on information given to her by the Claimant. It was CW2’s testimony that since hers was merely psychotherapy, it did not warrant any medical intervention on her part. She was only addressing behavioral issues and not the diabetes.

30. Pursuant to the Ruling of 6th November 2020, the Tribunal admitted into evidence the Psychological Assessment Report on I.K.L (Claimant’s son) dated 5th October 2020. It is worth noting that the said Report, although rejected by the 2nd to 4th Respondents, was prepared at the instance and insistence of the 2nd to 4th Respondents. The said Report confirmed that the Claimant’s son suffers from Post-Traumatic Stress Disorder and was not stable enough to testify before the Tribunal.

D: The Respondents’ Case

31. The 1st Respondent testified that she had worked as a registered nurse at Kahawa Barracks between 2013 and 2017. She is currently based at Moi Airbase. It was the testimony of the 1st Respondent that she had never met the Claimant before the alleged incident. She got to know the Claimant when the Claimant came to the facility on 10th of some month in 2017. The 1st Respondent could not recall the month.

32. When the Claimant brought the child to the facility, the Clinical Officer came into the ward and informed the two nurses, 1st Respondent and RW^, that the child had elevated sugar levels. The 1st Respondent testified that she did not attend to the Claimant’s son. RW6 summoned the Claimant and her son and the 1st Respondent explained the procedure to them, which involved insertion of a branula and admission of insulin to lower the sugar levels.

33. It was RW1’s testimony that she did not know the Claimant’s status and she did not need to. She did not work in the laboratory. She simply monitored the insulin levels. At about 12pm, the sugar level was still high. However, RW1 was aware of the complaint by the Claimant before this Tribunal. She has never threatened the Claimant, nor had she met the Claimant or her son before they went to the medical facility for treatment.

34. RW1 testified that at about 1pm, she handed over to the incoming shift.

35. The 2nd to 4th Respondents called a total of 9 witnesses. RW2, Major M. W, testified that he was employed by the Kenya Defence Forces as a Nursing Officer. He adopted his undated incident report as part of his testimony. His testimony focused mainly on the alleged rape incident that was reported on 1st April 2017. RW2 noted that he had not received any complaint about unlawful disclosure of the Claimant’s status, neither did he recall ever having attended to the Claimant or her son. He only came to learn of the Claimant later as a result of this matter. On cross examination, RW2 admitted that the Claimant resided at the married quarters within the Barracks, although he did not know whether she was still there.

36. RW3, JNM, adopted his witness statement dated 2nd July 2020 as part of his evidence. He testified that sometime in April 2017, the Claimant went to his office complaining about the RW7, whom she alleged had disclosed her HIV status to his friends. The Claimant did not mention the 1st Respondent in her complaint. After receiving the complaint, RW3 summoned RW7 to discuss the same. RW7 alleged that the Claimant’s son had raped his daughter, but denied knowing or disclosing the Claimant’s status.

37. Later RW3 established that the accusations by RW7 were mere allegations and forwarded the matter to his superiors. He stated that he did not investigate or receive any complaint about the Claimant’s son being tested at the 2nd Respondent facility for HIV.

38. RW4, P.C, a registered nurse working at the 2nd Respondent facility, adopted her statement dated 14th September 2016. She testified that she did not know the Claimant in person but may have seen her at the 2nd Respondent facility. Further, she has never attended to the Claimant’s son, and did not know anything about the case. On cross examination, RW4 testified that she has never summoned the Claimant, neither has she received a complaint against the 1st Respondent.

39. RW5, Sgt. M. JM, is a registered clinical officer at Kenya Defence Forces, Kahawa Barracks. He adopted his statement dated 7th July 2020. His testimony was that on 11th April 2017, the mother to a patient admitted in the ward approached him to have the patient discharged. He inquired why since the patient’s sugar levels were still high. The mother insisted. After advising her, RW5 prepared a Discharge Summary, which the mother signed, and the son was then discharged. He produced the copy of Discharge Summary as exhibit 1.

40. RW6, JWM, works with the Kenya Defence Forces as a civilian Nurse. She adopted her witness statement dated 6th July 2020 as part of her evidence in chief. In her witness statement, RW6 narrated the events of the material day in April 2017, although she could not recall the exact date when the incident took place.

41. On cross examination, RW6 testified that at the time, she was on duty although she had a leg injury. Once the treatment was administered to the Claimant’s son, RW6 and the 1st Respondent would check on the patient every 30 minutes. RW6 left the station at 1pm, along with the 1st Respondent. RW6 then proceeded on leave and does not know what transpired thereafter.

42. It was RW6’s testimony that she has never been summoned for any disciplinary action. She has also never reported any incident to RW4. She did not know anything about the daughter of RW7, neither did she know the particulars of the Claimant’s son’s discharge.

43. RW7, Sr. Sgt. A.J, has been a soldier since 2002 and is currently stationed in Isiolo. He was stationed at Kahawa Barracks in 2017. He adopted his statement dated 13th September 2017 as part of his testimony.

44. It was RW7’s testimony that he could not recall what happened on 11th April 2017. In addition, he could not recall visiting the 2nd Respondent facility during the period in question. He also had no knowledge of Julius Korir or the 1st Claimant. He admitted knowing the Claimant, who was his neighbor. RW7 testified that he has never been summoned by RW3 in respect of this case nor has he engaged the military police on the same. He was only summoned by other officers in September 2017, and that is when he made his statement, which has been adopted herein.

45. RW8, Sgt. J.K.K, is a military officer currently deployed in Lanet. He adopted his witness statement dated 3rd July 2020 as part of his testimony. He testified that in 2017, he was stationed at Kahawa Barracks, but left in early April 2017. He had no knowledge of this matter until he was summoned by his lawyer.

46. RW9, Sr. Sgt L.T, is a military officer currently deployed at Kabete. He adopted his statement dated 12th September 2017 as part of his testimony. His testimony was that he was not based at Kahawa Barracks until July 2017. He, therefore, had no dealings with this case. He did not know the Claimant and had no dealings with her in the past.

47. RW10, J.N, is a Sergeant, currently deployed at Kahawa Barracks. She adopted her statement dated 11th September 2017 as part of her testimony. RW10’s testimony was that she never summoned the Claimant to appear before her. At the time of the incident herein, RW10 was deployed at Kahawa Detachment.

48. On cross examination, RW10 stated that she did not know the Claimant, nor her husband. She was not familiar with the case herein and knows nothing about the claim.

E: Issues for Determination

49. Having had the opportunity to read through the submissions filed by the Claimant, 1st Respondent and 2nd- 4th Respondents dated 19th October 2020, 11th November 2020 and 6th November 2020, respectively, we have narrowed down the issues for determination as follows:

(i) Whether the 1st Respondent unlawfully disclosed the Claimant’s status without the Claimant’s consent;

(ii) Whether the Claimant has suffered emotionally or psychologically as a result of the unauthorized disclosure;

(iii) Whether the Claimant suffered any stigma or harassment at the instance of the Respondents due to her status or perceived status; and

(iv) Whether the Claimant is entitled to any of the reliefs prayed for.

F: Legal Analysis

50. Before analyzing each of the issues, we will first address our minds to the burden and standard of proof, which the 1st Respondent has submitted extensively on.

51. As the 1st Respondent notes, it is trite law that the onus of proof is on he who alleges. The 1st Respondent has made reference to several cases, including the case of Samson Gwer & 5 Others –vs- Kenya Medical Research Institute & 3 Others [2020] eKLR, in which the Supreme Court opined as follows:

“Section 108 of the Evidence Act provides that ‘the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side’, and section 109 of the Act declares that ‘the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall on any particular person.”

52. In the case of Ahmed Mohammed Noor –vs- Abdi Aziz Osman [2019] eKLR, the Learned Judge opined thus:

The legal basis for the legal burden of proof is provided in Section 107 of theEvidence Act, Cap 80 of the Laws of Kenya.The said sections states as follows:

(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

The onus is therefore upon a petitioner who seeks the annulment of an election ‘on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds ‘to the satisfaction of the court’. That is fixed at the onset of the trial and unless circumstances change, it remains unchanged.

That is the legal burden of proof.

The evidential burden of proof

The petitioner on whom the legal burden of proof lies may or may not adduce sufficient and admissible evidence in proof of any of the allegations in the petition. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there. On the other hand, if evidence is adduced to the satisfaction of the Court that an election ought to be impugned, then it becomes the burden of the respondent(s) to adduce evidence rebutting the allegations and to demonstrate that the law was complied with and/or that the irregularities did not affect the result of the election. At that point the burden is said to shift to the respondents. That is evidential burden of proof…

The foregone analysis therefore settles the issue of burden of proof. For clarity, the legal burden of proof in a case is always static and rests on the Claimant throughout the trial. It is only the evidential burden of proof which may shift to the defendant depending on the nature and effect of evidence adduced by the claimant.”

53. Further, in the case of Raila Amolo Odinga & Another –vs- IEBC & 2 Others, Presidential Election Petition No. 1 of 2017 [2017] eKLR, the Supreme Court said the following on the issue of evidential burden of proof:

[132] Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.

[133] It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law…..”

54. We couldn’t agree more with the 1st Respondent. Indeed, the Claimant bears the legal burden of proving the existence of the facts that she has alleged in her Statement of Claim. However, the evidential burden of proof may shift from the Claimant to the Respondents if the Claimant presents cogent and credible evidence as to the existence of the facts claimed.

55. In addition to the burden of proof, a claimant is required to meet the standard of proof, which in civil cases is on a balance of probabilities. 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., inMiller –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 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)

(i) Whether the 1st Respondent unlawfully disclosed the Claimant’s status without the Claimant’s consent

56. Section 22(1) of HAPCA provides, inter alia, that -

No person shall disclose any information concerning the result of an HIV test or any related assessments to any other person except with the written consent of that person.

57. As this Tribunal has opined previously, to obtain relief for violations under HAPCA, particularly that of unlawful disclosure of status, a claimant must demonstrate the manner in which the respondent violated these provisions. In S.M –vs- E. N. A, HAT No. 18 of 2018,this Tribunal noted that the claimant’s allegations therein were uncorroborated, since no witnesses were called to testify that the claimant’s status had been disclosed to them.

58. That being said, each case is evaluated and analyzed based on its own unique set of circumstances. The Claimant herein did not call any witness to testify that he/she became aware of the Claimant’s status as a result of the 1st Respondent’s unlawful disclosure of the Claimant’s status. The Claimant submits that due to the 1st Respondent’s irresponsible and unprofessional conduct, the Claimant was unable to adduce the corroborative evidence of her son, to whom the disclosure was made, since he is still psychologically affected by the events of that material time.

59. In the absence of the corroborative testimony of the Claimant’s son, this Tribunal is left to analyze other evidence presented before it. The Report presented by CW2 dated 25th June 2020 states clearly that the Claimant’s son underwent some traumatic experience in April 2017, which has affected him physically, emotionally and psychologically. Although the Report attributes the said effects to the allegation of raping a minor, the doctor notes that the Claimant’s son has faced HIV stigma since the incident.

60. At the behest of the 2nd to 4th Respondents, the Claimant’s son was subjected to another medical examination at the Kenyatta National Hospital. The Psychological Assessment Report dated 5th October 2020 was introduced into evidence by the Claimant, with the 2nd to 4th Respondent strongly opposing its production. The Report states, in part, that the Claimant’s son expressed feelings of suicide and homicidal ideations though had never attempted. He feared that he had HIV. In order to allay his fears, the Claimant’s son was tested for HIV at the doctor’s recommendations.

61. It is the 1st Respondent’s submission that the 1st Respondent did not have any access to the Claimant’s medical files and, therefore, could not have disclosed the Claimant’s status. On their part, the 2nd to 4th Respondents submit that the Claimant has not provided an iota of evidence to prove that either her son’s status or her own status was unlawfully disclosed by the 2nd to 4th Respondents.

62. Going back to our earlier analysis on burden of proof, in the case of Wareham t/a A. F. Wareham & 2 Others –vs- Kenya Post Office Savings Bank [2004] 2KLR 91, the Court of Appeal stated that:

“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

63. With respect to civil cases, the burden of proof is on the balance of probability, which was defined in the case of Kanyungu Njogu –vs- Daniel Kimani Maingi [2000] eKLR that when the court is faced with two probabilities, it can only decide the case on a balance of probability if there is evidence to show that one probability was more probable that the other. In Treadsetters Tyres ltd –vs- John Wekesa Wepukhulu [2010] eKLR, where Ibahim, J. (as he was then) allowed an Appeal quoted Charles Worth and Percy on Negligence, 9th Edition at p.387 on the question of proof, and burden thereof where it stated:-

“In an action for negligence, as in every other action, the burden of proof falls upon the Plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence may be reasonably inferred and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.”

64. Skipping back to the history of this matter, on 24th November 2017, Counsel for the 2nd to 4th Respondents informed this Tribunal that steps had been taken to resolve this matter internally, since the Claimant was an employee of the Department of Defence. Fast forward to 17th August 2018, Counsel for 2nd to 4th Respondents informed the Tribunal that the military was intending to take internal action. A Board of Inquiry had been established and had concluded its report. The Report was with the Army Commander, awaiting the decision of the Chief of the Defence Forces. The Tribunal was further informed that this report being confidential, it could not be availed to the Tribunal.

65. Guided by the foregoing authorities and having analyzed the evidence before this Tribunal, we are of the considered view that the Claimant has inferred that there was disclosure of her status in the presence of her son. Looking at the documentary evidence presented and the conduct of the 2nd to 4th Respondents throughout this case, it is more probable that the claim of disclosure made by the Claimant did in fact occur. This, in effect, means that the Claimant has discharged her burden of proof, which then shifts the said burden to the Respondents. The Respondents on their part have failed to discharge their burden of disproving the events claimed. The 2nd to 4th Respondents paraded 9 witnesses, all of whom either denied ever hearing of a complaint by the Claimant at the Barracks, or participating in an internal inquiry concerning the Claimant’s complaints. Some witnesses came to testify about the alleged rape as opposed to the issues before this Tribunal. All in all, the candor of most of the witnesses was wanting.

66. For this reason, we find that the Claimant’s claim of unlawful disclosure of her status by the 1st Respondent, an employee and/or agent of the 2nd to 4th Respondents, succeeds.

67. We will proceed to analyze the second and third issues together.

(ii) Whether the Claimant has suffered emotionally or psychologically as a result of the unauthorized disclosure; and (iii) Whether the Claimant suffered any stigma or harassment at the instance of the Respondents due to her status or perceived status

68. The Claimant submits that the Claimant was discriminated against, harassed and stigmatized by the Respondent because of her status and her quest before this Tribunal to protect her status from being disclosed any further by the 1st Respondent and her accomplices. The Respondents have not submitted on the above issues.

69. It is worth noting that when the Claimant first instituted these proceedings, she sought injunctive orders to stop the Respondents from harassing her and evicting her from her residence at the Kahawa Barracks. It is not disputed that the Claimant was a resident at the Barracks, where she resided with her husband, an army officer, and children. However, due to an unfortunate turn of events, the Claimant was eventually kicked out of the Barracks and her marriage has broken down. These facts have not been controverted by the Respondents. The split between the Claimant and her husband has had adverse effects on the mental and psychological wellbeing of the Claimant’s son as attested in the medical reports.

70. As this Tribunal has observed before, in order for a claimant to establish a prima facie case of emotional distress, he or she must prove that the respondent owed a duty of care which was breached and as a result, he or she suffered emotional distress. In the case of MKK –vs- CWN [2016] eKLR, the court noted the threshold in establishing psychological suffering and stated thus –

“The plaintiff must prove, and the court or tribunal must be satisfied, that the injuries were actually suffered and were proximately caused by the defendants.”

48. The court further appreciated the challenge faced by courts and tribunals as follows:

“Recovery of damages for mental or psychological anguish however present numerous challenges to courts and tribunals: The difficulties associated with proof of causal relationships between the alleged mental distress and the defendant’s actions; the ease with which claimants can feign mental distress or anguish; concerns over the potentials for spurious or vexatious litigations, and the hesitancy to punish defendants for indirect and possibly unintended, consequences of their actions”

71. Further, in RAO –vs- MGH & 2 Others [2020] eKLR, this Tribunal observed that HIV stigma refers to irrational or negative attitudes, behavior and judgement towards people living with or at risk of HIV. The unfortunate consequence of such stigma is that it discourages some individuals from learning their HIV status, accessing treatment or staying in care. This also leads to negative feelings or thoughts by such persons. Indeed, breaking down HIV stigma is a critical part of ending the HIV epidemic and a fundamental function of this Tribunal.

72. 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:

“When people living with, or at risk of, HIV are discriminated against in health-care settings, they go underground. This seriously undermines our ability to reach people with HIV testing, treatment and prevention services. Stigma and discrimination is an affront to human rights and puts the lives of people living with HIV and key populations in danger.”

73. Having noted the foregoing, it cannot be downplayed that the Claimant and her family have suffered emotionally and psychologically as a result of the actions of the Respondents. It was the Claimant’s testimony that her estranged husband could no longer bear the shame and embarrassment and thus chose to leave his family. Having separated from her husband, a military officer, the Claimant was finally evicted from the Barracks. The consequences of the estrangement and eviction on the Claimant’s son are well documented in both Reports by the doctors.

74. There can be no doubt that the Claimant herein has suffered directly, and indirectly through the suffering experienced by her family. The said suffering was proximately caused by the Respondents. For this reason, we find that this claim succeeds.

(v) Whether the Claimant is entitled to any of the reliefs prayed for

75. The Claimant urged this Tribunal to award the Claimant a sum of Kshs 4,000,000/- as general damages. She contends that the dignity and self-esteem of a person cannot be valued, and the disclosure of the Claimant’s status without her consent by the Respondents was the root of the Claimant’s suffering. The Claimant relied on the cases of V.M.K. –vs- CUEA [2013] eKLR in which the claimant was awarded Kshs 5,000,000/- for discrimination with regard to her status, and M.K –vs- Seventh Day Adventist Health Services & another [2016] eKLR, in which the petitioner was awarded Kshs 6,000,000/- for disclosure of the petitioner’s HIV status. However, the Claimant did not attach copies of the cited authorities.

76. On this issue, the 1st Respondent submitted that the evidence tendered by the Claimant is hearsay with no probative value.

G: Determination

77. On the first issue, whether the 1st Respondent unlawfully disclosed the Claimant’s status without the Claimant’s consent, we find that the Claimant has proved her case on a balance of probabilities. Accordingly, we award the Claimant Kshs 250,000/- for this limb of the claim,

78. On the second issue, whether the Claimant suffered emotionally or psychologically as a result of the unauthorized disclosure, we find that there is sufficient evidence on record to prove that the Claimant has, directly and indirectly though her family, suffered emotionally and psychologically. We award the Claimant Kshs 250,000/- for this limb.

79. On the third issue, whether the Claimant suffered stigma or harassment at the instance of the Respondents due to her status or perceived status, we find that the Claimant is entitled to damages and award Kshs 500,000/- for this limb.

80. In conclusion, this claim is determined as follows:

(i) Judgement is hereby entered in favor of the Claimant against the Respondents, jointly and severally, in the sum of Kshs 1,000,000/- by way of general damages;

(ii) The above sum shall attract interest at court rates from the date of this judgement until payment in full;

(iii) Costs are awarded to the Claimant.

Orders accordingly.

Dated and signed in Nairobi this 16th day of April 2021

Delivered at Nairobi this 16th day of April 2021

Delivered virtually in the presence of:

Ms. Muriuki h/b Mr. Mosioma for the Claimant

Mr. Chimei for 1st Respondent

Mr. Kinga for 2nd to 4th Respondents

Helene Namisi (Chairperson) ………………..…………….

Melissa Ng’ania ………………………….......

Justus T. Somoire ………………………………

Dr. Maryanne Ndonga ………………………............

Abdullahi Diriye ……………………………….

Tusmo Jama ………………………………..

Dorothy Kimeng’ech ………………………………..