[2024] KEHAT 1414 (KLR)

WM v ST. MPS T & 2 others (Cause 008 of 2023) [2024] KEHAT 1414 (KLR) (27 September 2024) (Judgment)

Neutral citation: [2024] KEHAT 1414 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Cause 008 of 2023

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

September 27, 2024

Between

WM

Claimant

and

ST. MPS T

1st Respondent

BOG ST. MPS T

2nd Respondent

HN

3rd Respondent

Judgment

Introduction 1. Discrimination is defined in Black Law Dictionary as the unjust or prejudicial treatment of different categories of people, especially on the grounds of ethnicity, age, health status, sex, or disability. HIV related Stigma is the devaluation of people living with or -at risk of HIV. Discrimination is how stigma is manifested.

2. The Claimant is a teacher employed at the 1st Respondent’s school and has sued the management and the Head teacher of the school as 2nd and 3rd Respondents respectively, for discrimination.

3. The Respondents entered appearance on 25th October 2023 and filed a joint statement of Response on the even date. Parties appeared before the Tribunal on 27th October 2023 and requested for time to mediate in a bid to settle the matter out of the Tribunal. They however failed to convene, negotiate and reach an agreement within the time given. The matter was therefore fixed for hearing on 21st March 2024 where the Claimant testified and closed her case. The Respondents closed their case without calling any witness.

The Claimant’s Case 4. The Claimant testified that she was seriously ill and hospitalized for long in 2014 but her health stabilized and she disclosed her HIV status to her friend A.M who was the Deputy head teacher of the school. She noted a worrying trend from the School administration since 2020. Whenever a class she taught would approach the National exams, the class would be re-assigned to another Teacher.

5. In February 2022, her friend A.M the Deputy head teacher who was the Acting head teacher then informed her that the School had decided she could not teach the current class 8 English or be their Class Teacher due to her HIV status. As a result of the stigma from School, she developed high blood pressure and was affected psychologically.

Respondent's Case 6. The Respondents filed a joint statement of Response dated 5th October 2023. They denied the allegation of HIV discrimination and stigma and averred that the Claimant was treated equally with the other Teachers and was trusted with special responsibilities like being the scout patron and teaches grade 6 which is an upper and candidate class (KAPSEA). She was assigned by KNEC to invigilate exams at the School in 2022 due to her hard work.

7. They maintained that the Claimant never raised the issue of discrimination with the School Management or TSC for it to be addressed and submitted that there was no evidence produced by the Claimant to prove the allegations. In this regard, they chose not to call any witnesses to defend the claim.

The Law 8. In Trust Bank Ltd V Paramount Universal Bank Ltd & 2 Others [2009] EKLR the Court expounded on the effects of failure to adduce rebuttal evidence as follows;“It is trite law that where a party fails to call evidence in support of his case, that party’s pleadings remain mere statements of facts since in so doing the party fails to substantiate his pleadings. In the same vein, the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.”

9. Further, in the case of David Bagine V Martin Bundi [1997] EKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter V Hyde Park Hotel Limited (1948) 64 TLR 177), where he stated that:The Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying, ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.

10. Even though the Claim is undefended, the Claimant ought to show a nexus between the breach and damages she suffered as was discussed in the case of Kenya Power And Lighting Company Ltd V Nathan Karanja Gachoka & Another [2016] eKLR where Justice Mulwa held:I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a Court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove his case too upon a balance of probability whether the evidence is challenged or not.”

11. Section 31 of the HIV & AIDS Prevention and Control Act prohibits Discrimination at the workplace by stating that no person shall be denied access to any employment for which he is qualified or be transferred, denied promotion or have his employment terminated, on the grounds only of his actual, perceived or suspected HIV status. The said Act further prohibits discrimination in schools at Section 32 which provides,No educational institution shall deny admission or expel, discipline, segregate, deny participation in any event or activity, or deny any benefits or services to a person on the grounds only of the person’s actual, perceived or suspected HIV status.

12. To prove unfair discrimination based on HIV status, the Claimant must prove that:1. He/she was treated differently from others on the basis only of HIV status.2. The discrimination and the treatment he/she received has caused serious harm his/her sense of dignity;3. The discrimination is unfair because of the way it has affected him/her or other people like him/her.

13. To prove her case, the Claimant adopted her witness statement and testified that In February 2022, her friend A.M the Deputy head teacher who was the Acting head teacher then informed her that the School had decided she could not teach the current class 8 English or be their Class Teacher due to her HIV status. As a result of the stigma from School, she developed high blood pressure and was affected psychologically.

Analysis 14. On cross examination, the Claimant confirmed that she had worked in the school for 15 years. She complained about the decision to deny her an opportunity to teach class 8 pupils in 2022 to Ms. A.M the Deputy head teacher then who was acting as the Head teacher and happened to be her best friend but has since left the School. She did not sue her because she perceived the issue to be between her and the school and not between her and A.M. She further confirmed that she had not been discriminated against after the event and has been given several other roles just like the other teachers.

15. The Claimant did not call a witness to support her case, it was simply her word against the Respondents. When queried by the Tribunal members, she testified that her colleagues whom she taught with in 2022 were still teachers in the school but she did not deem it fit to call any of them to testify on the issue of the school denying her the opportunity to teach class 8 based on her HIV status.

16. The Respondent’s statement of response remain mere statements of facts as no witness was called to substantiate the averments therein. However, during cross examination, the Counsel for the Respondents brought out the fact that the Claimant was treated equally with the other Teachers and was trusted with special responsibilities like being the scout patron and teaches grade 6 which is an upper and candidate class (KAPSEA). She was assigned by KNEC to invigilate exams at the School in 2022 due to her hard work. The Claimant further admitted that she was in good terms with the 3rd Respondent and has not been discriminated again.

17. From the foregoing, we find that the Claimant has not placed before us evidence to support that she was treated differently from the other teachers on the basis only of her HIV status contrary to Section 31 and 32 of HIV & AIDS Prevention and Control Act.

18. The Claimant claims that as a result of the stigma from School, she developed high blood pressure and was affected psychologically. She did not produce any medical records or counselling receipts to prove this fact or establish a relationship between the alleged discrimination and psychological suffering. We are guided by the case of MKK v CWN [2016] eKLR where 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."

19. In any event, having found that the Respondents did not discriminate against the Claimant based on her HIV status, this claim fails as there’s no nexus between the alleged discrimination and physical, emotional and physiological suffering of the Claimant.

20. 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.

21. Parties to bear their own costs.

DATED AND DELIVERED VIRTUALLY IN NAIROBI THIS 27TH DAY OF SEPTEMBER, 2024. ………………………………………………CAROLYNE MBOKU --(CHAIRPERSON)Delivered virtually in the presence of:HON. N. W. OSIEMO ( MEMBER)HON. B. O. YOGO (MEMBER)HON. PROF. W. G. JAOKO (MEMBER)HON. J. N. NGOIRI (MEMBER)HON. DR. S. K. MUSANI (MEMBER)HON. DR. I. N. MUKUI (MEMBER)MR. ODUNGA FOR THE CLAIMANTMR. GIKARIA FOR THE RESPONDENTYASMIN, COURT ASSISTANT.