[2012] KEHAT 7 (KLR)
The Tribunal held that it lacked jurisdiction to entertain the Claimant's complaint because the HIV and AIDS Prevention and Control Act, 2006, did not apply retrospectively to events that occurred in 1994, well before the Act came into force in 2009. The Tribunal further found that the issues raised by the Claimant...
Source-derived case information.
- Citation
- [2012] KEHAT 7 (KLR)
- Parties
- Applicant: WOK; Respondent: General Motors Limited; Respondent: Another
- Court
- HIV and AIDS Tribunal
- Jurisdiction
- Kenya
- Case Number
- Cause 2 of 2011
- Procedural Posture
- Cause / Judgment
- Outcome
- claim dismissed
- Judges
- A Rachier
- Legal Topics
- Hiv Testing Without Consent, Retrospective Application of Statute, Res Judicata, Medical Negligence, Employment Termination, Right to Privacy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
WOK
Applicant
General Motors Limited
Respondent
Another
Respondent
Procedural Posture
Cause / Judgment
Legal Issues
- 1 Whether the HIV and AIDS Prevention and Control Act could apply retrospectively.
- 2 Whether the Tribunal had jurisdiction to determine a matter deemed res judicata.
- 3 Whether the Tribunal had jurisdiction to adjudicate on matters of medical negligence and malpractice by doctors.
Ratio Decidendi
The Tribunal held that it lacked jurisdiction to entertain the Claimant's complaint because the HIV and AIDS Prevention and Control Act, 2006, did not apply retrospectively to events that occurred in 1994, well before the Act came into force in 2009. The Tribunal further found that the issues raised by the Claimant had already been conclusively determined by a competent court, rendering the matter res judicata. Although the Tribunal acknowledged that it generally has jurisdiction over matters of medical negligence under the Act, it could not exercise this jurisdiction in the present case due to the res judicata bar and the non-retrospective application of the statute. Accordingly, the...
Court Disposition
claim dismissed
Orders
- The claim is dismissed for want of jurisdiction.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
WOK v General Motors Limited & another (Cause 2 of 2011) [2012] KEHAT 7 (KLR) (15 June 2012) (Judgment)
Neutral citation: [2012] KEHAT 7 (KLR)
Republic of Kenya
In the HIV and AIDS Tribunal
Cause 2 of 2011
A Rachier, Chair
June 15, 2012
Between
WOK
Claimant
and
General Motors Limited & another & another & another
Respondent
Judgment
Jurisdiction – tribunals – HIV and AIDS Tribunal – whether the Tribunal had jurisdiction to determine the matters deemed res judicata - whether the Tribunal had jurisdiction to adjudicate on matters of medical negligence and malpractices by doctors – whether the claim was merited – HIV and AIDS Prevention and Control Act, 2006, sections 14. Brief Facts:The Claimant filed a claim against the Respondents alleging that in 1994 he was recommended for early retirement by the 1st Respondent based on the findings of an illegal HIV testing conducted on him by the 2nd Respondent, the 1st Respondent’s company doctor.Before approaching the Tribunal, the Claimant had filed a suit at the Chief Magistrates Courtclaiming, inter alia, compensation for trespass to person, breach of contract, negligence, wrong and illegal termination of employment, breach of right to privacy and confidentiality and discrimination as protected in the Constitution. The court entered judgment on 29 April, 1999 in his favour in the sum of Kshs. 49,935/= being amount admitted by the 1st Respondent and Kshs. 180,000/= as general damages. The Claimant did not appeal or file another suit to recover what he believed was rightfully his.Nine years after that judgment was rendered, the Claimant lodged a complaint with the MedicalPractitioners and Dentists Board against the 2nd Respondent, claiming that the 2nd Respondent had conducted an HIV test without his consent contrary to section 14(1)(a) of the HIV and AIDSPrevention and Control Act. The Claimant further alleged that the 2nd Respondent carried out the test without pre-test and post-test counseling as required under section 17 of the HIV and AIDS Prevention and Control Act. He further claimed that the 2nd Respondent had disclosed the Claimant’s HIV status to the 1st Respondent as a result of which he was retired on medical grounds.Three years after the complaint was lodged, the Medical Practitioners and Dentists Board referred the matter to the HIV Tribunal for determination, hence the instant matter.The main issues for determination by the Tribunal were:i. Whether the HIV and AIDS Prevention and Control Act could apply retrospectively;ii. Whether the Tribunal had jurisdiction to determine the matter before it, which was deemed res judicata;iii. Whether the Tribunal had jurisdiction to adjudicate on matters of medical negligence and malpractices by doctors.Held: 1. The HIV and AIDS Prevention and Control Act (No. 14 of 2006) came into operation on 30 March 2009 through Legal Notice No. 34 of 2009. Sections 26 and 27 of the Act provide for powers and jurisdiction of the Tribunal. The issues raised by the Claimant arose 12 years before the Act became part of our Kenyan laws. The complaints though grievous, did not arise out of any breach of the provision of the Act. The Act did not exist then. The Tribunal only entertains issues and complaints arising out of its provisions. As a result, the Claimant’s complaints do not fall within the four corners of the Act. The legislature while passing the Act did not wish to be applied retrospectively. The Tribunal cannot apply the Act retrospectively to accommodate the Claimant’s complaints.
2. On the issue of res judicata, the issues before the Tribunal were substantially the same asthe ones determined at the subordinate court, which court ruled in favour of the Claimant(plaintiff). The Tribunal thus lacked jurisdiction to entertain matters already conclusively dealt with by a competent court. Litigation of matters had to come to an end.
3. On whether the Tribunal had jurisdiction to determine issues of professional medical negligence, the issues raised by the complainant were covered in the HIV and AIDS
Prevention and Control Act and the Tribunal had jurisdiction to entertain. However, the matter was already res judicata and as such the Tribunal could not entertain the matter, having been dealt with conclusively by a competent court.Claim dismissed.DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE, 2012. ……………………………………………AMBROSE RACHIER (CHAIRMAN)2| HAT 2 OF 2011 JDT