[2021] KEHAT 672 (KLR)

SNW v FNN & another (Cause 001 of 2021) [2021] KEHAT 672 (KLR) (6 July 2021) (Judgment)

Neutral citation: [2021] KEHAT 672 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 001 of 2021

H Namisi, Chair, M. Ng’ania, Justus T. Somoire, M. Ndonga, AM Diriye, T Jama & D Jemator, Members

July 6, 2021

Between

SNW

Claimant

and

FNN

1st Respondent

PW

2nd Respondent

Judgment

Introduction 1. The Claimant filed a Statement of Claim dated 11th March, 2021 seeking judgment against the Respondents jointly and severally for;a.A declaration that the disclosure of the Claimant’s HIV status was wrongful and unlawful and amounts to violations of the Claimant’s statutory rights to privacy and confidentiality under provisions of HIV and AIDS Prevention & Control Act;b.Compensation in the nature of general damages for wrongful and unlawful disclosure of the Claimant’s HIV status;c.Compensation in general damages for violation of Claimant’s rights to privacy and confidentiality;d.General damages in compensation for psychological and emotional distresse.Costs of the suitf.Interest on the suit; andg.Any other or further relief that this Honorable Court may deem fit and just.

2. The Claimant pleaded that on 18th August 2020 she lost her mother, who was buried on 22nd August 2020. Three days after the burial, the family held a traditional gathering known as “lufuu” where the Claimant’s mother’s personal and household items would be shared among the family members. It was at the said meeting that the Respondents herein disclosed the Claimant’s status, without her consent, to those who were attended the meeting.

3. The Claimant further avers that as a result of the said disclosure she suffered stigmatization, emotional torture, disgrace, mental torture and diminished self–esteem.

4. In response to the Statement of Claim, the Respondents filed their Statement of Defence dated 20th April, 2021.

5. Parties presented their respective cases and evidence vide an oral hearing held on 21ST May 2021.

B. The Claimant’s Case 6. The Claimant called 3 witnesses, namely the Claimant, E.M & C.W. The Claimant adopted her witness statement dated 11th March 2021. The Claimant testified that she lost her mother on 18th August 2020 and buried her on 22nd August, 2020. Three days after burial, the family called a traditional meeting called ‘Lufuu’. The Claimant stated that all the relatives were in attendance to discuss how the Claimant’s mother’s household items would be distributed to the Claimant’s siblings. Police officers were also present in the compound, although about fifty (50) meters away from where the meeting was being held. The Claimant further avers that the said meeting was not convened by anyone but took place as a matter of fact following the burial of a loved one.

7. Further it was Claimant’s testimony that it was at the said meeting when the 1st Respondent called out saying that the Claimant is a prostitute and that she should go and take her medicine. The 2nd Respondent repeated these insults to the Claimant. The Claimant testified that after the disclosure of her status to relatives and villagers, she suffered emotional torture, disgrace, mental torture and diminished self-esteem.

8. The Claimant, therefore, wants compensation for having her status disclosed to everybody in the village, which will also serve as a lesson to the Respondents.

9. On cross examination, the Claimant stated that in July 2007, she was living in Parklands area, Nairobi, when she fell ill and was taken to hospital, under care of the 1st Respondent.

10. CW2, E.M, testified that he resides in Kimilili sub-county in Bungoma County and that the Claimant herein is his niece. It was his testimony that he is the chairperson of the clan and on 24th August 2020 he chaired the ‘lufuu’. CW2 testified that the said meeting was attended by a lot of people. It was during the meeting that the 1st Respondent remarked, “This one is a prostitute, she has HIV. Let her go and take medicine’’. The same sentiments were repeated by the 2nd Respondent.

11. CW2 confirmed that there were Police Officers were present in the compound, though they were not part of the meeting. They were about 50 metres away from the meeting.

12. On cross examination , CW2 clarified that only one meeting took place at that time, the one known as ‘‘Lufuu’’ and he was the one chairing. The meeting was for purposes of distributing the deceased’s properties. However, the said properties were not distributed due to the quarrel between the Claimant and the Respondents.

13. It was CW2’s testimony that the first person to insult the Claimant was the 1st Respondent who remarked ‘‘You are a prostitute. Go swallow pills for HIV.’’ Thereafter the 2nd Respondent repeated the same words. CW2 avers that it was the first time he was hearing of the Claimant’s status. After the remarks by the Respondents, the Claimant collected her items from her late mother’s house, but she did not collect any item belonging to her late mother.

14. CW3, C.W, who is the Claimant’s brother, a farmer and a resident of Kimilili adopted his statement dated 11th March 2021 as part of his evidence in chief. CW3 confirmed the date of death and burial of his deceased mother. He also confirmed that following the burial, the family proceeded to hold ‘‘lufuu’’ where relatives were in attendance.

15. It was the testimony of CW3 that during the said meeting the 1st Respondent insulted the Claimant by calling her a prostitute and remarking that she go take HIV drugs. He confirmed that the policeofficers were present but about 50 meters from the meeting point. CW3 also clarified that the said meeting happened automatically following the death of a loved one, and was not really convened by anyone.

16. On cross examination, CW3 clarified that both Respondents insulted the Claimant and his attempt to stop them did not bear any fruit. Further according to CW3 the genesis of the insult was the issue of the distribution of their deceased mother’s property. It was also the testimony of CW3 that he is the first born in the family of 9 children, in which one is deceased and two reside in the United State of America.

C: Respondents’ Case 17. The Respondents proceeded with their oral evidence and called a total of four witnesses, being the Respondents herein and two other witnesses.

18. The 1st Respondent, a resident of Kimilili, a farmer and civil society person, began her testimony by adopting her witness statement dated 23rd April 2021 as part of her evidence in chief. It was 1st Respondent’s testimony that in the year 2007, she was called by her sister, Alice, who resides in the United State of America to take the Claimant to the Hospital. It was at that time that 1st Respondent came to know the status of the Claimant. The 1st Respondent testified that she took care of the Claimant until the Claimant got well and resumed work.

19. It was also the testimony of the 1st Respondent that after the lufuu took place, there was a second meeting on the same day, where the Claimant insisted and took all the items from their deceased mother’s house. Traditionally, this ought to have been done 40 days after the burial, but the Claimant did not want to wait. The 1st Respondent stated that she neither knows who attended the second meeting nor what was said at the meeting.

20. During cross examination, 1st Respondent confirmed that the ‘lufuu’ took place after her mother’s burial. Thereafter, there was another meeting which was convened by the Claimant herein. 1st Respondent further clarified that they did not object to the division of their deceased mother’s property but only that the said activity of the division of property should have taken place 40 days after burial. 1st Respondent confirmed that there were no altercations between the Respondents and the Claimant. She further confirmed that the police officers were present within the compound. However, they did not take part in the meeting. They were there purely to ensure that those attending the burial and meeting were in compliance with the COVID -19 guidelines.

21. It was the 1st Respondent’s testimony that following their mother’s burial, two meetings took place. One on 24th August 2020 and the second on 12th September 2020.

22. The 2nd Respondent, also a sister to the Claimant, is a business lady based in Bungoma County. She adopted the Witness Statement dated 23rd April 2020 as part of her testimony. She stated that she came to learn of the Claimant’s status in 2007, when the 1st Respondent was caring for the Claimant following the Claimant’s hospitalization. On cross examination, she confirmed that there was no evidence before the Tribunal demonstrating that the Respondents had taken the Claimant to hospital when she took ill in 2007. Since 2007, no one has mentioned the Claimant’s status, and there have been no disagreements between the siblings. Any disagreements between the Claimant and Respondents arose following their mother’s death.

23. The 2nd Respondent affirmed that the Respondents did, indeed, love their sister, the Claimant. Had this not been the case, then they would not have cared for her following her hospitalization.

24. It was the 2nd Respondent’s testimony that at the ‘lufuu’, the family was informed that the property of the deceased would be distributed 40 days after the burial, and not on the day of the ‘lufuu’, which is according to their culture. However, the Claimant went ahead to carry all their mother’s belongings, leaving the kitchen completely empty.

25. The 2nd Respondent corroborated the testimony of the 1st Respondent regarding the number of meetings that were held. She noted that there were 2 meetings, the second being held 40 days after the burial, whose purpose was the actual distribution of the deceased’s property.

26. On cross examination, the 2nd Respondent denied that there were no disagreements between the Respondents and the Claimant on 24th August 2020. Rather, it was the Claimant who insisted in carrying away their mother’s items. The 2nd Respondent, however, did not have any evidence to show that the Claimant left their mother’s kitchen bare.

27. RW3, B.W, a brother to the Claimant and Respondents, began his testimony by adopting his witness statement dated 23rd April 2020 as part of his evidence in chief. RW3 further testified that ‘lufuu’ is always held 2 days following the burial of a loved one so as to know the cause of death as well as identify the creditors and debtors of the deceased person. He noted that the ‘lufuu’ is not convened by the chairman of the clan.

28. It was the testimony of RW3 that after the ‘lufuu’ was concluded, he retired to his homestead which is next door. He heard commotion in his mother’s homestead, which he later learned was caused by the fact that the Claimant was insisting on carrying away her items from their mother’s kitchen. The Claimant was then allowed to carry away the items, which she stored at RW3’s residence, where they are kept to date. It was RW3’s testimony that he did not hear any insults or see anyone fighting. On cross examination, he clarified that after the ‘lufuu’ was held on 24th August 2020, another meeting took place subsequently on the same day. There was no commotion at the ‘lufuu’.

29. RW4,J.W.W, an Administration Police Constable, number 209574, began his testimony by adopting his statement dated 23rd March 2021as part of his testimony. It was RW4’s testimony that he and his colleague were deployed at the Respondents’ residence on 19th August 2020 to provide security during the burial ceremonies as well as to ensure adherence to COVID-19 protocols.

30. RW4 testified that there was no commotion during the first meeting, the ‘lufuu’. It was his testimony that once the first meeting ended, some people regrouped for a second meeting, which looked like a family meeting. This is when RW4 heard some commotion and he heard someone say ‘‘mimi nabeba vitu yangu’’. RW4 and his colleague moved closer to establish the cause of the commotion. He then heard the 1st Respondent concede that the Claimant should carry away some items following the Claimant’s insistence. RW4 confirmed that the Claimant carried away some household items from the kitchen.

31. Although RW4 had moved in closer, he confirmed that he could hear everything that he was being said. He and his colleague were still a few metres away, and he could only overhear what was spoken loudly.

32. On cross examination, RW4 confirmed that his main duty was keep law and order. He clarified that he did not know the agenda of the meeting. RW4 further clarified that he did not hear anything about HIV.

D: Issues for Determination 33. After analyzing the pleadings filed by both parties together with the oral evidence presented before this Tribunal and submissions filed by parties dated 18th June 2021 and 22nd June 2021, respectively, we are the opinion that these are the issues for determination:i.Whether the Respondents unlawfully disclosed the Claimant’s status to third parties without the Claimant’s consent;ii.Whether the Claimant is entitled to the reliefs sought; andiii.Which party(s) shall bear the costs herein.

E: Legal Analysis 34. We will analyze each issue singularly.

i. Whether the Respondents unlawfully disclosed the Claimant’s status to third parties without the Claimant’s consent 35. The Claimant submitted that the Respondents, without the consent of the Claimant, disclosed the Claimant’s status to everyone who had attended the clan meeting, including the clan Chairman, E. M, who testified before the Tribunal that that was the first time he heard about the Claimant’s status. In relying on the case of NM & others vs Smith & Another (2002) ZAAC 6, which copy was not attached for our benefit, the Claimant submitted that section 22 of the HIV and AIDS Prevention and Control Act, 2006 (Hereinafter HAPCA) protects her from unlawful disclosures relating to her HIV status. The Claimant further relied on the cases of Kenya Legal and Ethical Network on HIV and AIDS (KELIN) & 3 Others –vs- Cabinet Secretary Ministry of Health and 4 Others (2016) eKLR and Mistry –vs- Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC).

36. On their part, the Respondents attribute this cause on the bad blood between the siblings arising from the 1st Respondent’s demand for a statement of accounts for monies received by the Claimant from some houses in Parklands, Nairobi. Notably, no evidence of this was presented, other than the averment in the 1st Respondent’s witness statement.

37. In submitting on this issue, the Respondents argued that the Claimant failed to meet the standard of proof required in civil cases. The Respondents relied on the cases of Ryde –vs Bushell (1967) E.A 817 and Ahmed Mohammed Noor v Adbi Aziz Osman, Civil Appeal No. 156 of 2018, in which the High Court stated that 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 an effect of evidence adduced by the claimant.

38. Section 22 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. In the case of SNW –vs- Asha Gulam [2019] eKLR, this Tribunal held that disclosure of the claimant’s HIV status by the respondent was wrongful and unlawful and amounts to a violation of provisions of section 22 of HAPCA.

39. Previously, this Tribunal has held that in order for a claimant to obtain relief for violations under HAPCA, particularly that of unlawful disclosure of status, a claimant must demonstrate the manner in which the respondent(s) violated these provisions. In so doing, a claimant would, therefore, be required to provide proof of the said disclosure to a third party by either calling the third party as a witness or demonstrating that the publication of the status was made to a person other than the claimant himself. In this instance, the Claimant called 2 witnesses, CW2 and CW3, both of whom confirmed hearing the insults by the Respondents about the Claimant’s status. It is noteable that the Respondents’ witnesses, the brother (RW3) and the Administration Police Officer (RW4) testified that they were too far from the gathering at the time to hear any of the words spoken by the Respondents against the Claimant.

40. In view of the foregoing, we are persuaded, on a balance of probabilities, that there was an altercation between the Claimant and Respondents, which may have been caused or resulted in the Respondents insulting the Claimant, and more particularly, in the unlawful disclosure of the Claimant’s status to the gathering, without the Claimant’s consent.

ii. Whether the Claimant is entitled to the reliefs sought 41. Before we address our minds to the issue of whether the Claimant is entitled to any relief, we wish to address the critical role that families play in the fight against the spread of HIV. The crucial role of the family unit in the society cannot be gainsaid. Families are the primary units that form the fabric of society. They are the first port of call for emotional, physical and other forms of support. It would be difficult to imagine any societal formation without the strong support structures that come from the family unit. In the fight against the spread of HIV and AIDS, families are in the front line of preventing transmissions, improving adherence to treatment and offer the first line of defence against stigma and isolation.

42. Having said that, it is very sad that sometimes these units that one looks to for support and emotional strength become the very place of torment and anguish. Rather than being the place from which one draws strength, they become the centre of pain and misery, often causing the stigmatization itself.

43. The Claimant testified about the emotional turmoil she underwent as a result of the Respondents’ disclosure of her status. Bearing in mind that the gathering was one of the relatives and other mourners, one can only imagine the sort of stigma that the Claimant faced thereafter. We are convinced that the Claimant suffered emotionally and psychologically, as a result of this disclosure.

44. On this issue, the Claimant relied on the case of SNW –vs- AG, HAT Cause No. 03/2018, in which the Tribunal awarded the claimant therein a sum of Kshs 500,000/- for violation of her rights to privacy and confidentiality. The Claimant submitted that, having proved her case on a balance of probabilities, she is entitled to a similar award.

45. Although we are guided by the precedents set in previous cases, we are also minded that the case herein is between siblings. It is for this reason that the Tribunal actively encouraged the parties to resolve their dispute amicably. An award of Kshs 500,000/- would serve to sever the relations herein rather than mend them. At the same time, we are also conscious of the fact that the Respondents violated the provisions of HAPCA and ought to be held liable for the same. It, therefore, falls to us to find a middle ground between compensating the Claimant for the suffering she has endured whilst ensuring that whatever compensation is awarded does not tear this family any farther apart. For this reason, we find that an award of Kshs 250,000/- is adequate.

iii. Which party(s) shall bear the costs herein 46. It is trite law that the costs follow the cause. However, once again, we have to consider that the dispute herein relates to members of the same family. We do not wish to punish the parties any more than they have already suffered. With this in mind, each party will bear her/their own costs.

F: Determination 47. The Tribunal finds that unwarranted disclosure of the Claimant’s HIV status by the Respondents violated the provisions of Section 22 of HAPCA. Judgement is, therefore, entered in favor of the Claimant against the Respondents as follows;a.A declaration is hereby issued that the disclosure of the Claimant’s HIV status by the Respondents was wrongful and unlawful and amounts to violations of the provisions of sections 22 of the HIV and AIDS Prevention and Control Act, 2006. b.Judgement is hereby entered in favor of the Claimant against the Respondents jointly and severally in the sum of Kshs. 250,000/= by way of general damages for psychological and emotional distress;c.The parties herein being members of the same family, there shall be no orders as to costs.Orders accordingly.

DATED AT NAIROBI THIS 6TH DAY OF JULY 2021 DELIVERED AT NAIROBI THIS 6TH DAY OF JULY 2021Delivered virtually In the presence of: Mr. Kahare for the ClaimantMr. Mosake for the Respondents.HELENE NAMISI (CHAIRPERSON)MELISSA NG’ANIA ………………..……………. ………………………….......JUSTUS T. SOMOIRE………………………………DR. MARYANNE NDONGA ………………………............ABDULLAHI DIRIYE ……………………………….TUSMO JAMA ………………………………..DOROTHY KIMENGECH ………………………………..