[2020] KEHAT 42 (KLR)

REPUBLIC OF KENYA

IN THE HIV AND AIDS TRIBUNAL

AT NAIROBI

CAUSE NO. 008 OF 2017

S.K.M ………………………………………………………………. CLAIMANT

VERSUS

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

MEDICAL RECEPTION STATION, KAHAWA BARRACKS …… 2ND RESPONDENT

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

PRINCIPAL SECRETARY, MINISTRY OF DEFENCE …………. 4TH RESPONDENT

RULING

A: Introduction

1. The Claimant’s Notice of Motion dated 21st October 2020 seeks the following orders:

(i) That the Honorable Tribunal for reasons to be recorded be pleased to certify this application as urgent and dispense with service of the same upon the Respondents in the first instance;

(ii) That the Honorable Tribunal do adopt the Medical Report prepared by Dr. J. Omondi of Kenyatta National Hospital dated 5th October 2020;

(iii) That the cost of the application be provided for.

2. The Application supported by an Affidavit sworn by S. K. M, the Claimant, and premised on the following grounds:

(i) That the 2nd to 4th Respondents requested a second medical report to be conducted on the Claimant’s son (intended witness);

(ii) That in the interest of justice, the Honorable Tribunal ordered that the said intended witness be examined at the Kenyatta National Hospital, which was a neutral facility;

(iii) That on 9th October 2020 when the matter came up for hearing of the expert witness for the 2nd to 4th Respondents, the Advocate on record for the 2nd to 4th Respondents indicated that the report was not ready;

(iv) That the medical assessment report was prepared and was ready as at 5th October 2020 and the Advocate on record for the 2nd to 4th Respondents failed to disclose this information to the Honorable Tribunal and the parties thereto;

(v) The prayers sought will not prejudice the rights of the Respondent but once given, they will help the Tribunal to come to a just decision.

3. In response thereto, the 2nd to 4th Respondents filed Grounds of Opposition dated 27th October 2020.

4. At the hearing of the application, the 1st Respondent’s Counsel, not having filed any response, chose to associate himself fully with the Grounds of Opposition filed by the 2nd to 4th Respondents. The Application was argued orally before the Tribunal.

B: Submissions

5. The Claimant’s Counsel argued that it was the 2nd to 4th Respondents who had requested the second medical examination of the Claimant’s son (intended witness). When the matter came up for hearing on 9th October 2020, Counsel for the 2nd to 4th Respondents had not served any medical report upon the Claimant’s Counsel and indicated to the Tribunal that he did not have the same. Claimant’s Counsel prays that the application be allowed since the report was made at the request of the 2nd to 4th Respondents. He reiterated the fact that Advocates are Officers of the Court and took an oath to assist courts to come up with fair and just decisions. Adopting the second medical report as evidence herein would assist the Tribunal to come up with a just and fair decision.

6. In response thereto, Counsel for the 1st Respondent argued that if such evidence is to be adduced, then it should be done in line with the proper procedure laid down in the Evidence Act,Cap 80 of the Laws of Kenya. The maker of the document ought to produce the same, so that parties have the opportunity for cross examination of the witness.

7. On his part, Counsel for the 2nd to 4th Respondents argued that section 35 of the Evidence Act provides for admissibility of evidence. The Claimant has not provided any reason as to why the maker of the document cannot be called. He contended that the admission of evidence has to be in line with the procedure in the Evidence Act and the Civil Procedure Rules on discovery of evidence. Counsel argued that evidence which has been obtained illegally ought not be admitted. His position was that in an adversarial system, a party has a right to exclude evidence that they feel may prejudice their case, taking into consideration the manner in which the said evidence was obtained. Such evidence was not available to the 2nd to 4th Respondents and if the same is produced, then it would prejudice their case.

C: Analysis

8. In considering the application before the Tribunal, it is important to review the events leading up to this application.

9. On 14th August 2020, when this matter was scheduled for hearing, Counsel for the 2nd to 4th Respondent made an oral application to have the Claimant’s son (intended witness) presented at the Defence Forces Hospital for purposes of assessment of the alleged trauma he had undergone. He informed the Tribunal that his clients wished that the Claimant’s son be assessed by a second Psychologist and to have an expert produce the medical report. Counsel for the Claimant objected to the said application on grounds that the request would entail having the Claimant’s son presented before the very people who assaulted him in the first instance. Claimant’s Counsel was of the view that this was just a time-wasting tactic being employed by the Counsel for 2nd to 4th Respondents, and if indeed the second assessment was necessary, Counsel ought to have filed an application under Certificate of Urgency.

10. On discussing the application, both Counsel agreed to have the Claimant’s son presented for a second assessment at a neutral facility, and the Tribunal issued directions to that effect. It was ordered that the second medical assessment be carried out at the Kenyatta National Hospital within 30 days at a date to be mutually agreed upon and at the cost of the 2nd to 4th Respondents.

11. When the matter came up for further hearing on 25th September 2020, Counsel for the 2nd to 4th Respondents sought further directions from the Tribunal on the issue of the second medical assessment. Counsel informed the Tribunal that the Claimant’s son had been seen at the Kenyatta National Hospital on 3 occasions and that the doctor had advised that the child be seen by another specialist (a Urologist) before the doctor could prepare his final report. Counsel informed the Tribunal that the final report would be ready on 6th October 2020, and on that basis, sought an adjournment awaiting production of the report.

12. By 9th October 2020, Counsel for the 2nd to 4th Respondents had not served any medical report upon the other parties and informed the Tribunal that he was yet to receive the same. In the premise, Counsel indicated that he would not pursue the issue further and closed his case.

13. First off, it is important to note that section 27 (3) of the HIV and AIDS Prevention and Control Act, 2006 provides as follows:

In its determination of any matter the Tribunal may take into consideration any evidence which it considers relevant to the subject of the matter before it, notwithstanding that the evidence would not be otherwise admissible under the Evidence Act.

14. It is important to remember that tribunals are specialized and created to alleviate problems for the courts and are preferred to courts “because they have the advantages of speed, cheapness, informality and expertise.’ (see Administrative Law, 5th ed. By P. P. Craig, 2003 at page 253). It is this informality, coupled with the expression provision of section 27 (3) of HAPCA, that allows this Tribunal to admit any evidence before it that is relevant and has probative value to a case before it, even though such evidence would ordinarily not be admissible in a court.

15. That being said, a close study of the 2nd to 4th Respondents’ 10 Grounds of Opposition reveals that the authenticity of the Report by Dr. J. Omondi is not in question. Neither are its contents. The only issue here seems to be that the Claimant managed to get hold of the report before the 2nd to 4th Respondents or their Counsel did, and brought it to the attention of the Tribunal.

16. Ground No. 4 by the 2nd to 4th Respondents is that the Claimant herein has illegally obtained a copy of the medical report dated 5th October 2020 prepared by Dr. J. Omondi of the Kenyatta National Hospital without applying for documents discovery proceedings as such she is barred from relying on the said report as evidence. Ground no. 7 is that the Claimant’s application is a fishing expedition in probing for evidence that was not in the possession of the 2nd to 4th Respondents when the matter was last in Court. These two grounds together with Counsel’s submissions seem to suggest that there is some evidence in the said report that is highly prejudicial to the 2nd to 4th Respondents.

17. Much as we do not wish to comment on whether or not Counsel for the 2nd to 4th Respondent was dishonest to this Tribunal and deliberately withheld this report from the Tribunal, it is important that we address the obligations of an Officer of the Court.

18. In Republic vs Ahmad Abolfathi Mohammed and Anor, Petition No. 39 of 2018 [2019] eKLR the Supreme Court held thus:

“The status of an Advocate as an Officer of the Court is expressly provided for in section 55 of the Advocates Act. An Advocate, consequently, bears an obligation to promote the cause of justice, and the due functioning of the constitutionally-established judicial process therefor ensuring that the judicial system functions efficiently, effectively, and in a respectable manner. In that context, Advocates bear the ethical duty of telling the truth in Court, while desisting from any negative conduct such as dishonesty and discourtesy. The overriding duty of the Advocate before the Court is to promote the interests of justice, and of motions established for the delivery and sustenance of the cause of justice…

…It is clear, therefore, that Advocates, while discharging their duties, are under obligation to observe rules of professionalism, and in that behalf, they are to be guided by the fundamental values of integrity. “

19. In Francis Mugo & 22 Others vs James Bress Muthee & 3 Others, Civil Suit No. 122 of 2005 [2005] eKLR, Justice Musinga thus stated:

“ While I agree that the choice of counsel if a prerogative of a party to a suit, it must be borne in mind that the discharge of his office, an Advocate has a duty to his client, a duty to his opponent, a duty to the court, a duty to himself and a duty to the State, as well expressed byRichard Du CanninThe Art of the Advocate. As an Officer of the Court, he owes allegiance to a cause that is higher than serving the interests of his client, and that is to the cause of justice and truth.”

20. The Counsel in this matter have a duty to bring forth any evidence that will assist this Tribunal to make a fair and just determination of the case, regardless of whether that evidence is prejudicial to their case or not. In this instance, the report was prepared at the behest of the 2nd to 4th Respondents, and once the report was ready, it did not matter that the Claimant got her hands on it before the 2nd to 4th Respondents. After all, it was the Claimant’s son who was the subject of the medical assessment.

D: Determination

21. Accordingly, the Claimant’s Notice of Motion dated 21st October 2020 is hereby allowed. Costs in the cause.

Dated and signed in Nairobi this _____6th ____day of _____NOVEMBER______2020

Delivered at Nairobi this 6th day of November, 2020

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

Melissa Ng’ania ………………………….......

Justus T. Somoire ………………………………

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

Abdullahi Diriye ………………………………..

Tusmo Jama ………………………………..

Dorothy Kimeng’ech ………………………………..