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 & 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 15^TH DAY OF JUNE, 2012.……………………………………………AMBROSE RACHIER (CHAIRMAN)2| HAT 2 OF 2011 JDT

1.	Constitution of Kenya Cited	34152 citations
2.	HIV and AIDS Prevention and Control Act Cited	83 citations

WOK v General Motors Limited & another (Cause 2 of 2011) [2012] KEHAT 7 (KLR) (15 June 2012) (Judgment)

WOK v General Motors Limited & another (Cause 2 of 2011) [2012] KEHAT 7 (KLR) (15 June 2012) (Judgment)

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