[2024] KEHAT 170 (KLR)

VAS v RAN (Tribunal Case 27 of 2023) [2024] KEHAT 170 (KLR) (14 February 2024) (Judgment)

Neutral citation: [2024] KEHAT 170 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case 27 of 2023

Carolyne Mboku, Chair, W.G Jaoko, NW Osiemo, B.O Yogo, S. Musani, J.N Ngoiri & IN Mukui, Members

February 14, 2024

Between

VAS

Claimant

and

RAN

Respondent

Judgment

1. The Claimant instituted this Claim vide a statement of claim dated 10th July 2023 primarily seeking :a.A declaration that the Respondent’s acts were unlawfulb.Damages for emotional and psychological distressc.General damagesd.Costs of the suite.Interest on (b), (c) and (d) above at court’s ratesf.Any other relief that the Tribunal deems fit to grant.

2. The Respondent was served with summons to enter appearance and the statement of claim on 18th July 2023 through her phone number 07*****8 as evidenced by the affidavit of service dated 14th September 2023 sworn by Mwakizingwa Joe Advocate but she did not enter appearance.

3. The Tribunal gave directions for the case to be fixed for hearing on 26th October 2023. The Respondent was also served with the hearing notice as per the affidavit of service dated 29th September 2023 sworn by Mwakizingwa Joe Advocate but she did not appear. The claim therefore proceeded un-opposed.

The Claimant’s case 4. The Claimant and the Respondent were students at (Name withheld). The 2 were next door neighbors in a compound that they shared with other students. It was the Claimant’s testimony that one morning sometime in June 2023, the Respondent accused her of interfering with her life. A fight ensued and in the process the Respondent told the Claimant “wewe kazi yako ni kutembeza na kuambukizana ukimwi na kisonono”

5. The Claimant testified that she went to report the incident to the police station and when she came back she found that the caretaker had thrown her belongings out of her house. She was psychologically affected and stopped going to college because her neighbors were talking about the incident behind her back.

6. She further testified that the above captioned statement allege that she is living with and has been spreading HIV. As a result of the comment, she has faced psychological torture.

The Respondent’s case 7. The Respondent was served with summons to enter appearance and the statement of claim on 18th July 2023 through her phone number 07*****8 and was equally informed of the hearing date of 26th October 2023 as evidenced by the filed affidavit of service sworn by Mwakizingwa Joe Advocate, but she failed to enter appearance and defend the Claim.

Issues for Determination 8. The Tribunal having considered the statement of claim, the evidence adduced by the Claimant and the pleadings filed, considers the following as the issues to be determined:-1. Whether there was unlawful disclosure of the Claimant’s HIV status to third parties by the Respondent?2. Whether the Claimant suffered stigmatization and/or discrimination as a result of the Respondent’s statements?3. Whether the Claimant is entitled to the reliefs sought?

Whether there was unlawful disclosure of the Claimants’ HIV status to third parties by the Respondent? 9. According to Black’s Law Dictionary, Disclosure is “To make known, a revelation or the uncovering of a thing that is kept hidden.”A person’s HIV status is confidential and should not be revealed to third parties without their consent as provided for under Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act reads:“No person shall disclose any information concerning the result of a HIV test or any related assessments to any other person except with the written consent of that person”

10. Disclosure of a person’s HIV status without their consent tantamount to violation of the right to privacy. In Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR, Justice Lenaola quoted with approval the Constitutional Court of South Africa in the case of Mistry v Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC) where it was stated that:“In order to determine whether there is a violation of the right to privacy, the Court ought to take into account the fact;i.whether the information was obtained in an intrusive manner,ii.whether it was about intimate aspects of an applicant’s personal life;iii.whether it involved data provided by an applicant for one purpose which was then used for another purpose andiv.whether it was disseminated to the press or the general public or persons from whom an applicant could reasonably expect that such private information would be withheld”.

11. Further to the above quoted guiding principles, this Tribunal has previously held that for one to prove disclosure, he/she must show that the disclosure was made to a third party without the Claimant’s consent and tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the said on a platform or a forum that could be easily accessed by a third party. In SM v ENO[2018]eKLR we held that a Claimant must call a witness to confirm that indeed, there was disclosure of the claimant’s status to third parties, including the witness. This witness is a crucial key to the puzzle and assists the Tribunal in piecing together a claimant’s averments and painting the picture of the circumstances under which the disclosure occurred. The witness’s account complements and corroborates that of the claimant.

12. The Claimant testified that the Respondent told her in the presence of her neighbors “wewe kazi yako ni kutembeza na kuambukizana ukimwi na kisonono” this Swahili phrase when translated to English reads “your work is to roam and spread HIVand gonorrhoea.” She further testified that this statement was a revelation of her HIV Status to third parties without her consent.

13. From the evidence on record, these words were said directly to the Claimant in the presence of her neighbors. They were not directed to the neighbors but the Claimant. None of the neighbors present were called as a witness to testify for the Claimant. We find that the phrase alone unsupported does not meet the threshold of proof of disclosure of HIV status to third parties as envisioned under Section 22(1) of the HIV and AIDS Prevention and Control Act. In MM v MNM & another [2020] eKLR, this Tribunal held,According to Section 22(1) of HIV and AIDS Prevention and Control Act, disclosure would crystallize if the revelation is made to any other person without the consent of the concerned individual. In our considered view, any other person under Section 22 of the HAPCA does not include the person whose status is said to have been disclosed.

14. This claim therefore fails.

Whether the Claimant suffered stigmatization and/or discrimination as a result of the Respondent’s statements? 15. The Claimant testified that the neighbors who were present when the statement was made were her schoolmates and have resorted to talking behind her back. This has psychologically affected her and she has stopped going to school for fear of victimization. In MKK v CWN[2016] eKLR the High court set the threshold in establishing psychological suffering as follows:“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.”

16. People living with HIV in Kenya still undergo systemic disadvantage and discrimination. Many of them opt to keep their HIV status secret for fear of prejudice. In many instances, those whose HIV status have been revealed are shunned from the society and denied social services. The Claimant failed to call a witness or lead evidence to infer psychological torture. However, having found that the statement does not disclose the Claimant’s HIV status to third parties, then this claim must fail too.

Whether the Claimant is entitled to the reliefs sought? 17. Having considered the pleadings, evidence on record and analyzed all the issues, it is the finding of this Tribunal that the Claimant has not proved her claim to the requisite standards.

This cause is, therefore, dismissed.Orders accordingly.

DATED AND SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF FEBRUARY, 2024. Delivered virtually in the presence of:Hon. CAROLYNE MBOKU (Chairperson) …………………………………………Hon. WALTER G. JAOKO (Prof.) (Member) ………………………………………Hon. NELSON W. OSIEMO (Member) …………………………………………….Hon. BRIAN O. YOGO (Member) ………………………………………………….Hon. SOLOMON K. MUSANI (Dr.) (Member) ………………………………….Hon. JANE N. NGOIRI (Member) …………………………………………Hon. IRENE N. MUKUI (Dr.) (Member) ………………………………….…………………………………………. Advocate for the Claimant.………………………………………….. Advocate for the respondent.Margaret NasiekuYasmin Mohammed……………………………………….Court Assistants