[2021] KEHAT 670 (KLR)

SS v JN & 2 others (Cause 6 of 2017) [2021] KEHAT 670 (KLR) (24 June 2021) (Judgment)

Neutral citation: [2021] KEHAT 670 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 6 of 2017

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

June 24, 2021

Between

SS

Claimant

and

JN

1st Respondent

ENPS

2nd Respondent

CDTSC, NC

3rd Respondent

Judgment

A. Introduction 1. The Claimant filed this claim on 13th October, 2017 in which the Claimant seeks the following reliefs from the Respondents jointly and severally:-i.Exemplary damages;ii.General damages;iii.A public apology; and,iv.Costs of this suit.

2. The Claim is premised on the grounds that the Claimant was discriminated upon by the Respondents at her place of work and that her status was disclosed by the Respondents without her consent.

3. The Respondents filed a Response dated 18th December, 2017 denying that they had discriminated against the Claimant on account of her status nor disclosed her status to other persons. The Respondents also denied that they were liable to pay damages to the Claimant.

B: The Claimant’s Case 4. The Claimant testified before the Tribunal in support of her case. It was the Claimant’s testimony that she was a teacher employed by the Teachers Service Commission at the time of filing of this suit and teaching at the 2nd Respondent where the 1st Respondent was her colleague. It was the testimony of the Claimant that when she joined the school, she disclosed her HIV status to her colleagues so that her colleagues would be supportive of her in her discharging her duties as a teacher. However, this was not the case. The Claimant averred that she faced discrimination in the allocation of duties and that the Respondents disclosed her status without her consent.

C: Respondents’ Case 5. The Respondents called two (2) witnesses who denied the allegations of the Claimant. It was the Respondents’ case that the Claimant voluntarily disclosed her status. It was also the Respondents’ testimony that the Claimant was never discriminated upon and that she was allocated duties commensurate to those of her colleagues. It was also the Respondents’ position that the Claimant did not follow the law in applying for leave and as such, she absconded from duty.

D: Issues for Determination 6. At the close of the hearing, the Tribunal directed the parties to file submissions. The Claimant’s Advocate filed submissions dated 6th May, 2021 while the Respondents’ Advocate filed submissions dated 26th May, 2021. We have considered the pleadings, the evidence by the parties as well as the submissions filed. The issues that fall for determination are as follows:-a.Whether the Respondents disclosed the HIV status of the Claimant;b.Whether the Claimant was discriminated upon by the Respondents; and,c.Whether the Claimant is entitled to the reliefs sought in the Statement of Claim.

E: Legal Analysis 7. We proceed to analyze the issues as follows:-

i. Whether the Respondents disclosed the Claimant’s status to third parties without the Claimant’s consent 8. Section 22(1) of the HIV & AIDS Prevention and Control Act, 2006 (hereinafter HAPCA) prohibits the disclosure of one’s HIV status without the consent of that person. Under Section 23 of HAPCA, a person who contravenes this provision is guilty of an offense. The Claimant testified that when she was posted to teach at the school, she did disclose her status to her colleagues with whom she was teaching. The reason for the said disclosure was so that she would receive both emotional as well as work support from her colleagues. However, to the Claimant’s disappointment that was not the case as her colleagues ended up discriminating her and disclosing her status to 3rd parties. The Claimant took issue with the letter dated 31st October, 2017 which was authored by a Mr. E.N.G. A. addressed to the Secretary TSC but to the attention of a Mr. O. T whom the Claimant testified that she did not know. It was also the Claimant’s testimony that she did not give consent to the officers of the 3rd Respondent to disclose her status to third parties.

9. The RW1, the 1st Respondent herein and RW3, a representative of the 3rd Respondent, testified that they came to know of the Claimant’s HIV status through the Claimant herself but denied that they did disclose the Claimant’s status to third parties without the consent of the Claimant. The RW3 confirmed that the letter dated 31st October, 2017 emanated from the 3rd Respondent’s office and that he was aware of the said letter though he did not author the same.

10. The parties herein agree that the Claimant disclosed her status to her colleagues at school as well as the officers of the 3rd Respondent. The only contention is hinged on the letter of 31st October, 2017 which, according to the Claimant, disclosed her status to third parties that she had not consented to. We have closely examined the said letter, the letter is written by Mr. E. G. A in his capacity as the County Co-coordinator of TSC, an officer of the 3rd Respondent. The letter is addressed to the Secretary TSC but attention to a Mr. O. T. At paragraph 3, the letter reads:-“The said teacher is living with HIV/AIDS a condition she has made known to the school administration and the Narok county office.”

11. The Claimant testified that she did not give the officers of the 3rd Respondent any consent to disclose her status to 3rd parties, a fact confirmed by RW2 in his testimony. The Respondents’ Advocates have submitted that by the time the letter was authored, the recipient of the said letter Mr. T.O. as well as the Secretary of TSC were already aware of the HIV status of the Claimant in that the Claimant had already informed people. According to the Respondents, the status of the Claimant was no longer a secret.

12. From the admission of RW2 that the 3rd Respondent authored the letter and that the Claimant had not given them permission to disclose her status to third parties, the defence taken by the Respondents does not hold. The reason for the disclosure of her status by the Claimant was to enable her get a conducive working environment. That did not give the 3rd Respondent the right to disclose the status of the Claimant to Mr. O. T and the Secretary of TSC. The issue in question was the alleged leave that the Claimant had proceeded to and not the HIV status of the Claimant which is a private affair. The 3rd Respondent overstretched its mandate and brought in extraneous factors that were not called for and hence infringed on the private space of the Claimant. For this reason, we find that the officers of the 3rd Respondent did disclose the status of the Claimant without her consent and, therefore, are liable as provided by Section22 as read with Section 23 of HAPCA.

13Our finding is fortified by the decision of Hon. Lenaola J (as he then was) in Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 Others v Cabinet Secretary Ministry of Health & 4 Others [2016] eKLR, where the learned Judge opined that:“ I agree with the exposition of the law above and I should add that Article 31(c) of the Constitution must be understood in this context – it protects against the unnecessary revelation of information relating to family or private affairs of an individual. Private affairs are those matters whose disclosure will cause mental distress and injury to a person and there is thus need to keep such information confidential. Taken in that context, the right to privacy protects the very core of the personal sphere of an individual and basically envisages the right to live one’s own life with minimum interference. The right also restricts the collection, use of and disclosure of private information”

14. 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. Furthermore, Section 3 of HAPCA states that one of its objectives is to guarantee the privacy of the individual which is aimed at offering support to persons living with or affected with HIV in order that their dignity is maintained. This is one of the many ways in which the fight against the prevention of the spread of HIV/AIDS can be won, always taking cognizance of the fact that HIV/AIDS was declared a National Disaster in November 1999 following the recommendations made in Sessional Paper No. 4 of 1997.

15. We, however, do not find any evidence linking the 1st and 2nd Respondents to the disclosure of the Claimant’s HIV status. The 1st Respondent testified that she was aware of the status of the Claimant through the Claimant herself. The Claimant herself confirmed this. No evidence was tendered by the Claimant linking the 1st and 2nd Respondent to the disclosure of her status. We note that the 1st and 2nd Respondents did not author the said letter and neither do they work in the 3rd Respondents office. We would, therefore, be hesitant to hold them culpable of authoring the said letter.

ii. Whether the Respondents discriminated on the Claimant as a result of her HIV status. 16. The Claimant testified that the Respondents discriminated on her on account of her HIV status. It was the Claimant’s case that she was discriminated by the Respondents in that the 1st Respondent did not allocate her responsibilities of marking and invigilating exams because of her health status. The Claimant also alluded to the fact that her son was also discriminated upon at school.

17. The 1st Respondent, on the other hand, testified that she was in charge of exams and a senior teacher at the school. That she did assign the Claimant roles but the Claimant used to be absent from school most of the times and as such, she could not assign the Claimant an examination class. It was also the 1st Respondent’s testimony that the Claimant’s son was never discriminated upon and that the Claimant’s son did attend school as and when the Claimant was in school. It was the 1st Respondent’s testimony that the Claimant’s son already sat for his exams and was no longer at the school.

18. The HAPCA, under Section 3, states that;“one of the objects of the Act is to extend to every person suspected or known to be infected or affected with HIV/AIDS , full protection of his human rights and civil liberties by outlawing discrimination in all its forms and subtleties against persons with or persons perceived or suspected to be living with HIV/AIDS.”

19. In order to prove that the Claimant was discriminated upon, the Claimant must prove to the satisfaction of the Tribunal that the only reason why the Claimant was not allocated duties was because of her health status. That is to say that the Claimant must prove at prima facie that her health status was the motivating factor in denying her allocation of duties or that the motivation can be inferred from the conduct of the Respondents.

20. It is, therefore, incumbent upon us to look at the totality of the evidence on record and satisfy ourselves whether there was a discriminatory intent against the Claimant due to her HIV status. The Claimant must also show a case of prima facie discrimination or we can infer the same from the Respondents’ conduct.

21. The Claimant testified that when she reported to the 2nd Respondent, the Head Teacher of the 2nd Respondent did allocate her duties to teach standard 8, which according to the Claimant, was not prudent as she considered the class to be a sensitive one. It was the testimony of the Claimant that the 3rd Respondent’s officer did intervene and she was allocated classes 5 and 6. The Claimant also testified that her son had been discriminated upon and that he had not been registered for exams.

22. The Respondents denied discriminating upon the Claimant. According to the 1st Respondent, he did assign the Claimant roles to teach but not class 7 and 8. The 1st Respondent relied on the bundle of documents appearing at pages 8-10 of the Respondents’ Bundle of Documents which are examination time table for class 7 and at pages 20-29 is the standard 8 examination timetable. At page 71 to 77 is the duty Rota for 2017 and 2016. From the Rota, the Claimant was allocated duty on 13th to 19th November, 2017, 6th to 12th March, 2017, 2nd to 8th January, 2017, 6th to 12th June, 2016, 15th to 21st February, 2016, 30th November to 6th December, 2016. RW2 testified that when the Claimant was transferred in 2014, the Claimant reported to RW2 who was the staffing officer and complained that she did not want the school that she had been posted to and informed RW2 that she wanted to teach at the 2nd Respondent because of her status. RW2 testified that due to that reason and taking into consideration the existence of a good hospital nearby, RW2 proceeded to post the Claimant to that school. It was also the testimony of the RW2 that he never saw the Claimant again.

23. The Claimant also relied on the letter of 31st October, 2017 to demonstrate the fact that she had been discriminated upon as a result of her status by the Respondents holding that she had absconded from because according to the Claimant, there was no complaint of her not attending to her duties. This was further aggravated by the letter dated 20th January, 2020 transferring the Claimant to another school that has no medical facility nearby as compared to the school she where has been teaching. According to the Respondents, the letter of 31st October, 2017 was done because the Claimant had not followed the procedure for application for leave as provided by the Code of Regulations for Teachers in 2015. We have perused the said Regulations and Part X deals with leave. The Regulations provide for various forms of leave. The one relevant to the circumstances of this case is Regulation 111, which deals with sick leave. It provides that:-1. A teacher who on account of illness, is unable to attend to the duties assigned by the Commission as required, shall apply for sick leave to the Commission through the Head of institution in the manner set out in Form P under the Twenty Eight Schedule.2. An application for sick leave shall be foRWarded to the Commission not later than forty eight hours where the teacher attended hospital as an out-patient and not later than seven days where the teacher is an in-patient.

24. According to the Claimant, she did apply for leave verbally and proceeded on leave. We have considered the law governing teachers on the procedure for leave, and for the Claimant to have proceeded on leave, she had to have complied with Regulation 111. In the said letter of 31st October, 2017, the 3rd Respondent indicates that the Claimant had been advised when she visited the offices of the 3rd Respondent on 6th September, 2017 on what she should do so as to proceed on sick leave.

25. In our respectful view, we do not find any direct or inferred conduct on the part of the Respondents that would amount to discrimination of the Claimant. The Claimant was transferred to the school of her choice when she approached RW 3. When she was assigned to teach class 8, the Claimant complained and she was reassigned to class 5 and 6. The Claimant proceeded on leave without following the laid down procedure in the Regulations. The leave could only be approved if the Claimant had fully complied with the requirements for application for leave.

26. On the transfer that she was given on 16th January, 2020, RW3 the staffing officer of the 3rd Respondent testified that he was not aware of the transfer that took place in 2020 because he left the County in 2018 on transfer. However, according to RW3, the medical status of the Claimant had not been documented by the Teachers Service Commission in the Claimant’s file and as such, it could not be a factor to be taken into consideration when transfers are made. According to RW3, when the Teachers Service Commission employs teachers, the teachers undertake to work in any part of the country unless someone demonstrates the circumstances under which special consideration should be made. According to the Claimant, the letter of 31st October, 2017 as well as these proceedings informed the malicious transfer given to her on 16th January, 2020.

27. We are unable to agree with the Claimant for the reason that these proceedings were filed in 2017. Further, the letter was authored in 2017. This is a period of three (3) years, which in our opinion, is a long time to peg on the transfer that occurred in 2020. To further buttress our doubts, the Claimant had testified that she had informed the officers of the 3rd Respondent of her condition so that she could be supported. RW3 confirmed during the hearing that he had facilitated the Claimant to go to the 2nd Respondent to teach and not an earlier school that she had been posted when the Claimant told him of his condition. The Claimant has not demonstrated that she wrote to the 3rd Respondent seeking a review of the transfer or explain to the 3rd Respondent of her condition without necessary disclosing her status just like she had done in 2014 and that the 3rd Respondent had declined to intervene. We are guided by the holding of the High Court in the case of Steven Omondi Odero & Manarat Academy School v ESI (suing on behalf of EJZ (minor) [2020] eKLR where Mwita J., in setting aside the decision of this Tribunal, held that:-“72. The respondent did not even suggest that she left records of the minor’s health condition with the 1st appellant. She did say that the 1st appellant knew her and that he could easily remember on phone that her son had that condition. She only told him verbally on 9 th December 2015 that her son had that condition. There was no evidence that they subsequently discussed the minor’s health even when she was calling him for further details to conclude that he had reason to withdraw the offer, thus discriminated against the minor.73. I would have been prepared to agree with the tribunal that the minor was discriminated against, had the respondent shown that the 1st appellant’ s initial reaction was negative when she disclosed the minor’s health condition to him, and then took steps to prevent him from joining the school. That would probably have led to an inference that there was a discriminatory intent.74. It must be clear that in a claim for discrimination, a plaintiff is still required to prove direct discrimination or show that through the conduct of the defendant, the court can infer indirect discrimination. From the totality of the circumstances of the case before the tribunal, the respondent failed to prove direct discrimination or sufficient conduct from the appellants for drawing an inference of discrimination. The tribunal’s holding that simply because N.K sat for an interviewed amounted to discrimination, was an error.”

28. That is the same case here. The Claimant has failed to prove direct discrimination by the Respondents and we agree with the Respondents that in the circumstance of this case, the Claimant was not discriminated upon.

iii. Whether the Claimant is entitled to the reliefs sought 29. The Claimant seeks the following reliefs:i.Exemplary damages;ii.General damages;iii.A public apology; and,iv.Costs of this suit.

30. Having found that the 3rd Respondent disclosed the Claimant’s HIV status to other parties without consent of the Claimant, the Claimant is entitled to an award of damages. The issue that is therefore left for the determination by this Tribunal is the amount of damages to be awarded. In her submissions, the Claimant has relied on the case of GSN v Nairobi Hospital & 2 others [2020] eKLR where the Claimant was awarded a sum of Kshs. 2,000,000/= as general damages for disclosure of the Claimant’s HIV status without the Claimant’s consent.

31. On the first issue, whether the Respondents disclosed the Claimant’s HIV status to third parties without the Claimant’s consent, we find that the 3rd Respondent violated the provisions of section 22 of HAPCA by wrongfully and unlawfully disclosing the Claimant’s status, real or perceived, without the Claimant’s consent. Accordingly, we award the Claimant Kshs 350,000/- for this limb of the claim.

32. The Claimant has also prayed for exemplary damages. The High Court in the case of South Nyanza Sugar Company Limited v John Jowie Ayuka (suing as the personal representative of Pascal Sonye Ayula (deceased)) 2019 eKLR summarized the principles which guide a Court in awarding of exemplary damages. The Court stated that:-“10. The trial magistrate awarded exemplary damages, “arising out of the opportunity to realise ratoon 2. ” This was a misdirection for two reasons. First, the respondent did not pray for exemplary damages. Second, the principles for the award of exemplary damages are well settled and the facts in this case did not fall within those principles. These principles were summarized as follows in Godfrey Julius Ndumba Mbogori & Another v Nairobi City County Nrb CA Civil Appeal No. 55 of 2012 [2018] eKLR as follows:(32)The appellants claimed for exemplary and punitive damages. Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case ofRookes v Barnard [1964] AC 1129 where Lord Devlin set out the categories of case in which exemplary damages may be awarded which are:i)in cases of oppressive, arbitrary or unconstitutional action by the servants of the government,ii)cases in which the defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff andiii)where exemplary damages are expressly authorized by statute.”

33. In the instant case, the 3rd Respondent has been found to have disclosed the Claimant’s HIV status without her consent. The Claimant testified that the said disclosure has caused her psychological and mental torture because of stigmatization. Taking into consideration the guidance in the South Nyanza case (supra) above on the principles of when a court can grant exemplary damages. We hold that this is one of such cases. As can be seen from Section 3 of HAPCA which provides that the object and purpose of the Act is, inter alia, to positively address and seek to eradicate conditions that aggravate the spread of HIV infection. However, in the circumstances of this case, other than disclosing the status in the letter, there is no evidence that the 3rd Respondent did anything extraneous to aggravate the situation. As a result, the 3rd Respondents are not liable to pay exemplary damages.

34. On the prayer for a public apology, we hold that in the circumstances of this case, the prayer for a public apology is not the most appropriate remedy since it would aggravate the disclosure of the Claimant’s HIV status to other parties, contrary to the provisions of Section 22 of HAPCA. On that basis, we decline to issue this prayer.

35. On costs, the law is established that costs follow the event. In the case before us, the Claimant has partly succeeded in her claim against the 3rd Respondent. We, therefore, award the Claimant costs of this suit to be paid by the 3rd Respondent.

F: Determination 36. In conclusion, this claim is determined as follows:i.Judgement is hereby entered in favour of the Claimant against the 3rd Respondent in the sum of Kshs 350,000/- by way of general damages;ii.The above sum shall attract interest at Court rates from the date of this judgment until payment in full;iii.Costs are awarded to the Claimant to be paid by the 3rd Respondent; and,iv.The suit as against the 1st and 2nd Respondents is dismissed.Orders accordingly.

DATED AT NAIROBI THIS 24TH DAY OF JUNE 2021DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JUNE 2021In the presence of:Ms. Muriuki h/b Mr. Mosioma for the Claimant Mr. Ochieng for the RespondentsHELENE NAMISI (CHAIRPERSON) ………………..…………….MELISSA NG’ANIA ………………………….......JUSTUS T. SOMOIRE ………………………………DR. MARYANNE NDONGA ………………………............ABDULLAHI DIRIYE ……………………………….TUSMO JAMA ………………………………..DOROTHY KIMENG’ECH ………………………………..