[2020] KEHAT 145 (KLR)

REPUBLIC OF KENYA

IN THE HIV & AIDS TRIBUNAL

AT NAIROBI

H.A.T. CASE NO. 018 OF 2018

SM..................................................................................................CLAIMANT

-VS-

ENA...........................................................................................RESPONDENT

JUDGEMENT

A. Introduction

1. By Statement of Claim dated 7th December 2018 and filed herein on 14th December 2018, the Claimant seeks judgment against the Respondent for:

a. A declaration that the Claimant has suffered a violation and an infringement of her rights as guaranteed and protected under the HIV and AIDS Prevention and Control Act, Cap 246A;

b. A permanent injunction restraining the Respondent, her representatives and/or assignees from further unauthorized disclosure and discrimination;

c. Payment of general damages in respect of impairment of dignity, pain and suffering and/or emotional and psychological suffering as a result of the wrongful disclosure and discrimination;

d. The Honorable Tribunal do issue such orders and give such directions as it may deem fit to meet the ends of justice;

e. The Respondent pay the costs of this claim in any event.

2. The Claimant avers that on or about 8th April 2018, the Respondent, without any color of right, disclosed the Claimant’s HIV status to a number of people within her neighborhood, without the Claimant’s consent, contrary to section 22 of the HIV and AIDS Prevention and Control Act (hereinafter HAPCA).

3. Further, the Claimant avers that the Respondent’s utterances became repetitive to the point that the Respondent would shout at the Claimant when she engaged in her business. As a result, most of her customers reduced and her colleagues started having reservations towards her. The Claimant could not secure soft loans from her friends due to the disclosure by the Respondent, who warned them not to associate with a person with HIV.

4. The Claimant further avers that the Respondent’s conduct has affected the Claimant socially, emotionally, psychologically and that she remains traumatized as she cannot conduct her affairs freely without people starring at her and others enquiring from her on the truth of the Respondent’s utterances. As a result, the Claimant suffers stigma and has been a victim of derogatory remarks from the public.

5. The Respondent never entered appearance nor filed any response to the Statement of Claim. The Affidavit of Service sworn on 17th October 2018 indicates that on 16th October 2018, the Respondent was served with a Mention Notice and acknowledged service by signing on the copy thereof. On 18th June 2019, the Respondent was served with the Statement of Claim but refused to acknowledge receipt thereof. On 23rd July 2019, the Respondent was served with a Hearing Notice but once again refused to acknowledge receipt. This Tribunal, being satisfied that the Respondent had been served and given ample opportunity to enter appearance and/or file the relevant responses, proceeded to hear the matter.

B. Issues for Determination

6. The Tribunal has narrowed down the issues for determination as follows:

i. Whether there was unlawful disclosure of the Claimant’s status by the Respondent;

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

iii. Whether the Claimant is entitled to any of the reliefs prayed for.

C. Evidence

7. The Claimant began her case by testifying that she and the Respondent are neighbors, residing in Kibera. The Claimant ekes a living from selling second-hand shirts.

8. On or about 8th April 2018, the Claimant came from the market to clean shirts at home. She requested the Respondent to move her bed sheets from the clothes line so as to enable the Claimant hang the shirts she had just washed. The Respondent then responded, ”Wewe unaringa nini na umejaza ukimwi kwa mwili yako?” Soon, people came out and gathered around, and the Respondent continued yelling.

9. The Claimant further testified that the Respondent continues to insult her every time they meet. The Respondent does this in the presence of other people, and once spat on the Claimant. On one occasion, the Claimant decided to inquire the cause of the animosity between her and the Respondent in a bid to reconcile with the Respondent, but the attempt was thwarted by Respondent who retorted “Hakuna chenye naweza kuongea na maiti kama wewe.”

10. The Claimant averred that she has been stressed by this maltreatment and her business has been affected. Her friends and customers have been distant. At home, the neighbors requested the caretaker to designate a separate bathroom and washroom for her so that they do not have to share the facilities with the Claimant.

11. The Claimant adopted her Witness Statement dated 7th December 2018 as part of her evidence in chief and proceeded to close her case. No other witnesses were called.

D. Analysis

12. Despite being accorded the opportunity to file her written submissions, the Claimant has not done so to date, 6 months later. The Tribunal, thus, is left to analyze the sole testimony of the Claimant.

13. It is trite law that the onus of proof is on he who alleges. To obtain relief for violations under HAPCA, particularly that of unlawful disclosure of status, the Claimant must demonstrate the manner in which the Respondent violated these provisions. It is noteworthy that in this instance, the Claimant’s testimony was uncorroborated. Although the Claimant made reference to people to whom the disclosure was made, including neighbors and her landlady, none of these individuals was called as a witness to corroborate the Claimant’s testimony that it was the Respondent who disclosed the Claimant’s status to them.

14. Our finding is based on our evaluation and the evidence tendered herein. So far, the Claimant’s testimony remains as mere allegations, in the absence of any evidence to corroborate the disclosure. By its very nature, disclosure entails the revelation or divulgence of one’s status, without consent, to a third party. It, therefore, goes without saying that to prove disclosure one must tender corroborative evidence either in the form of a person who overheard the oral statement being made or the publication of the said information on a platform or forum that could easily be accessed by a third party.

15. On the whole, therefore, without corroborative evidence of the Claimant’s testimony, the claim for disclosure of status to third parties without consent fails.

E. Determination

16. On the issue of whether there was unlawful disclosure of the Claimant’s status, we find that the Claimant failed to discharge her burden of proof. And as such, the claim must fail.

17. It goes without saying that subsequently the issue of whether the Claimant has suffered loss and injury, emotionally or psychologically, cannot sustain.

18. We, therefore, dismiss this cause, with no orders as to costs

Dated and Signed at Nairobi this 31st day of January, 2020.

Delivered at Nairobi this 31st day of January, 2020.

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

Melissa Ng’ania ................................................

Justus T. Somoire .................................................

Abdullahi Diriye ..................................................

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

Tusmo Jama ...................................................

Dorothy Jemator Kimengech ...................................................