[2023] KEHAT 1382 (KLR)

VWN v GG (Tribunal Case E036 of 2023) [2023] KEHAT 1382 (KLR) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHAT 1382 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Tribunal Case E036 of 2023

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

December 15, 2023

Between

VWN

Claimant

and

GG

Respondent

Judgment

A. Introduction 1. Vide a Statement of Claim dated 21st August, 2023 and filed on 22nd August, 2023, the Claimant herein moved the Tribunal seeking the following reliefs from the Respondent herein:i.A declaration that the Respondent infringed the rights of the Claimant under 22 and 23 of the HIV and AIDS Prevention and Control Act;ii.Damages for the impairment of dignity, emotional, physical and psychological suffering.iii.Cots of the suit

2. The Claimant filed a list of witnesses enlisting herself together PMW as her witnesses to the case. The Claimant further filed a list of documents alongside a bundle of the documents.

3. The Respondent on the other hand, filed his statement of Defence and counterclaim dated 21st September, 2023 where he denied all the allegations as contained in the Claimant’s case and advanced a counterclaim against the claimant for disclosing his HIV status in direct infringement of section 22 of HIV and AIDS Prevention and Control Act.

4. The claimant and her witness together with the Respondent testified in court on the 19th October, 2023. The Respondent’s counsel then applied for and was granted an adjournment to call the Respondent’s witness, which date was fixed for 7th November, 2023. However, on this day, the Respondent nor his counsel appeared before the tribunal for the hearing of the Respondent’s case. This Tribunal therefore ordered that the Respondent’s case be closed and written submissions be filed.

5. It is therefore our duty to evaluate the evidence presented before us through the testimonies of the witnesses that appeared before us as follows.

B. Claimant’s Case 6. The Claimant avers that at all material times, the Claimant and the Respondent were members of the same social media platform called, “Distance Relatives,” which is a WhatsApp group with 90 members. She avers that on 25th July, 2023 at 07:54pm, the Respondent posted her picture on the WhatsApp group with his phone number +2547196XXXX5 stating that he wanted to embarrass the claimant.

7. The claimant states that at 8:04pm, the 1st Respondent posted a screenshot of a post from a telegram group called Love Parlour to which the 2nd Respondent had posted the claimant’s picture under the username @[Particulars Withheld] with a warning that disclosed the claimants HIV status as follows;Admin post hii, huyu mama ako HIV positive kazi ni kupea wanaume ugonjwa. Namba yake ni 0723XXXX67

8. It is the Claimant’s testimony before the Tribunal that the 1st Respondent proceeded and captioned the screenshot as posted as followsNitakuweka penye unafaa, I’ll make sure umejinyonga juu ya yenye utapata. Nalia uwekwe channels zote za telegram

9. It is the Claimant’s testimony that she felt embarrassed, stigmatized and discriminated because of the disclosure of her HIV status without her consent to the thousands of telegram and WhatsApp users who saw and reacted to the posting. She testified that the threat to disclose her HIV status followed a misunderstanding she had with the 1st Respondent in the WhatsApp group. At trial, she produced various screenshots of the WhatsApp group where the alleged violation occurred.

10. In cross examination by the Respondent’s counsel, the Claimant confirmed that they had a misunderstanding that led to respondent disclosing her HIV status. She however, admitted that she did not attach the relevant screenshots of the genesis of the misunderstanding.

11. PMW was CW2. On his part, he testified that he is a subscriber to the telegram channel and a member of the group known as Love Parlour, which has over five thousand subscribers. He confirmed that the 2nd Respondent is the administrator of the group under name @[Particulars Withheld] and that the administrator offers a paid platform for people to do exposes.

12. Mr W confirmed the averments of the claimant adding that at 8. 41pm, the 1st Respondent posted another picture of the claimant and captioned it thus;Mafisi mjichunge huyu mumama anapea vijana ukimwi mbaya sana. Tujichunge. For such exposes dm at a fee @[Particulars Withheld]

13. On cross examination, the witness confirmed that the he shares various WhatsApp groups with the claimant and that he is the one who called the claimant to tell her that she has been exposed in the group.

C. The Respondent’s Case 14. The Respondent testified while adopting his written statement saying that he was a member of that WhatsApp group. He says the claimant posted his status in a support group called Queens and Kings. He confirms that he was exchanging harsh words with the claimant because of a picture he had sent on the Queens and Kings WhatsApp group.

15. It was his evidence that the claimant stated sharing screenshots, which she has now deleted, saying that he was a prostitute. On cross examination, the Respondent confirmed that his number posted the alleged pictures and that he uses different names on the telegram channel and the WhatsApp group.

16. As stated earlier in this judgment, the respondent did not call any other witness nor did he or his counsel appear for further hearing necessitating the tribunal to order his case to be closed.

D. Issues for Determination 17. This Tribunal having read through the pleadings filed, having heard the evidence of the Claimant alongside her witness together with the Respondent and having read through the submissions filed by the Claimant dated 10th November, 2023 and the cited authorities in support of the claimant’s case, the Tribunal has identified the following as issues for determination in this matter:i.Whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without the Claimant’s consent;ii.Whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination; andiii.Whether the Claimant is entitled to the reliefs sought.

E. Legal Analysis 18. This Tribunal will now analyze the issues identified above singularly as follows.

i. Whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without the Claimant’s consent 19. The term Disclosure is not defined in the HIV and AIDS Prevention and Control Act. However, the same is defined in the Black’s Law Dictionary as follows:“To make known, a revelation or the uncovering of a thing that is kept hidden.”To contextualize this term Section 22 (1)(a) of the HIV and AIDS Prevention and Control Act provides:“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”HIV test results or related assessment are therefore private and should not be released to third parties without the written consent of the person. Failure to respect this privacy is a violation of the person’s right to privacy.

20. The test for determining whether there is a violation of the right to privacy was established in Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR, where 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 applicants’ 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”.

21. With these principles in mind, we move to determine whether there is a violation of the Claimant’s right to privacy in the present instance.

22. In submitting under this issue, the Claimant relied on the provisions of section 22(1) as quoted above in urging this Tribunal to find that the Respondent has disclosed her status when the Respondent posted her picture to the WhatsApp group saying that huyu mama ako HIV positive kazi ni kupea wanaume ugonjwa.

23. This Tribunal has examined the evidence provided alongside the testimony of the Claimant and her witness, and specifically, the screenshot of the message posted on the WhatsApp group “Love parlour” by mobile number +2547196XXXX5, which message reads ‘admin post hii, huyu mama ako HIV positive kazi yake ni kupea wanaume ugonjwa’.

24. This Tribunal has previously held that a person’s HIV status is a private affair and should not be disclosed to third parties without consent as enacted in section 22 of HAPCA. This HIV status as covered by the aforementioned provision is both real or perceived, and so it matters not that the person disclosing the said status is unaware of the actual status of the person being offended.

25. It was the holding of this Tribunal in the case of GGOO -vs- MOA [2021] eKLR that;“34. On the definition of disclosure, the Respondent submitted that the term means ‘to make known, a revelation or the uncovering of a thing that is kept hidden’. He contended that the evidence tendered by the Claimant was an alleged conversation between the Claimant and the Respondent, which entailed innuendo of the Claimant’s status. According to the Respondent, the question, therefore, is whether by informing the Claimant of his HIV status, the Respondent’s conduct amounted to disclosure.35. On the one hand, we concur with the Respondent’s submissions with regard to definition of disclosure. On the other hand, we disagree that the alleged conversation was between the Claimant and Respondent only, and, therefore, cannot be construed to be disclosure. The evidence before the Tribunal clearly shows that there were at least 2 messages posted by the Respondent in a group, which alluded to the Claimant’s status, whether real of perceived. Without a doubt, the WhatsApp group did not compromise of the Claimant and the Respondent only, it had other members. In our view, this evidence tendered herein by the Claimant, which has not been countered by the Respondent, clearly indicates that there was publication of the Claimant’s status, real or perceived, to a group which group contained a large number of people.37. Borrowing the words of the Learned Judge, the provisions of section 2 of HAPCA protect against unnecessary and unwarranted revelation of one’s status, which is a private affair. 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. Having said this, it is clear that the Respondent violated the provisions of section 22 of HAPCA by unlawfully disclosing the Claimant’s status, real or perceived, to third parties without the Claimant’s consent.”

26. Going by the evidence tendered before the Tribunal as highlighted herein above, and also in keeping with this Tribunal’s holdings in previous similar matters, it is our finding that the Respondent’s actions amounted to a violation of the provisions of section 22 of HAPCA, and that he unlawfully and without consent of the Claimant, disclosed the Claimant’s status, real or perceived, to third parties, being the members of the aforementioned WhatsApp group.

27. It is therefore our finding that the message as posted on the WhatsApp group having met the principles enumerated in KELIN’s case (supra) enumerated above for the violation of right to privacy.

28. We reiterate, as we have always done before in cases we have adjudicated in the past, that a person’s HIV status whether real or perceived ought not to be disclosed to third parties without prior written consent of that person. This Tribunal will not shy aware from enforcing the objects for which the legislature enacted the law we operate in.

ii. Whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination; and 29. Having found that there was unlawful disclosure, the question then becomes, whether the Claimant suffered stigmatization and/or discrimination as a result.

30. The Claimant testified that after the Respondent had made the subject allegations against her in the WhatsApp group, which group comprised of over five thousand subscribers, some of whom she called as witnesses to this case, she suffered stigma and discrimination which she unfortunately did not particularized in her pleadings.

31. In our decision in S. M. –vs- E. N. O., HAT no. 18 of 2018 we stated the importance of a collaborative witness when one complains of disclosure of HIV status without consent. 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.

32. Having said this, the mere fact of calling a witness does not discharge a Claimant’s burden of proving, on a balance of probabilities, that the events that the Claimant avers are likely to have taken place. It is a principle of law that whoever lays a claim before the court against another has the burden to prove it. Sections 107 and 108 of the Evidence Act provide as follows:“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

33. Section 3(b)(ii) & (iii) of HAPCA provides that, “The object and purpose of this Act is to guaranteeing the right to privacy of the individual and outlawing discrimination in all its forms and subtleties against persons with or persons perceived or suspected of having HIV and AIDS.”

34. The impute of the above provision is that stigmatization and/or discrimination of a person living with or perceived to be living with HIV and AIDS shall not be permitted under the law. This Tribunal has previously defined HIV stigma as referring to irrational or negative attitudes, behavior and judgement towards people living with or at risk of HIV. Taking into consideration the testimony of the Claimant and her witnesses, the evidence tendered in support of her claim, and the unfeasibility of quantifying stigma, we do find that the Claimant herein suffered discrimination and/or stigmatization.

iii. Whether the Claimant is entitled to the reliefs sought. 35. Having answered the first two issues to the affirmative, what is left for determination is the quantum of damages payable to the Claimant for the Respondent having unlawfully disclosed the Claimant’s HIV status to third parties and damages payable for the Respondent having caused the Claimant to suffer stigmatization and/or discrimination.

36. The Claimant also placed reliance in SNW -vs- Asha Gulam [2019] eKLR where the Tribunal held that disclosure of the Claimant’s HIV status by the Respondent was wrongful and unlawful and amounts to violation of provisions of section 22 of the Act and awarded the Claimant the sum of Kshs. 250,000/= as general damages.

37. The claimant also relied on RN VS ROO [2019] eKLR and EOD VS OC & Another [2020] eKLR on the psychological suffering claimants undergo as a result of disclosure of their HIV status without consent.

38. Whilst this Tribunal appreciates the above authorities, it is important to point that the circumstances surrounding the material case herein are slightly different and as such we find that GGOO -vs- MOA [supra] raises a more realistic comparison to the material claim herein.

39. We thus award Kshs.500,000/= for the unlawful disclosure of the Claimant’s status to third parties without her consent and Kshs.150,000/= for the discrimination and/or stigmatization suffered.

40. We also dismiss the counterclaim as filed as lacking merit with costs.

F. Determination 41. On the first issue as to whether the Respondent unlawfully disclosed the Claimant’s HIV status to third parties without the Claimant’s consent, we find that the Respondent’s actions amounted to a breach of the provisions of section 22 of HAPCA and consequently award damages of Kshs.500,000/= under this ambit of the claim.

42. On the second issue as to whether as a result of the unlawful disclosure, if any, the Claimant suffered stigmatization and/or discrimination, we find to the affirmative and thus make an award of damages of Kshs.150,000/= under this ambit of the claim.

43. The counterclaim is also dismissed with costs.

44. The Claimant is hereby awarded costs of this claim.

45. The Claimant is hereby awarded interest on Judgement items 40), and 41) above at court rates from the date of this Judgement until payment in full.

DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF DECEMBER, 2023. DELIVERED AT NAIROBI THIS 15TH DAY OF DECEMBER, 2023. DELIVERED virtually in the presence of;……………………………………………………………… for the Claimant……………………………………………………………… for the RespondentHON. CAROLYNE MBOKU - (Chairperson)HON. B. O. YOGO - (Member)HON. N. W. OSIEMO - (Member)HON. W. G. JAOKO (Prof.) - (Member)HON. J. N. NGOIRI - (Member)HON. S. K. MUSANI - (Member)………………………………………………………………… Court Assistant.