REPUBLIC OF KENYA
IN THE HIV & AIDS TRIBUNAL AT NAIROBI
H.A.T. CAUSE NO. 10 OF 2018
RN ..........................................CLAIMANT
-VS-
ROO..................................RESPONDENT
JUDGEMENT
A. Introduction
1. By Statement of Claim dated 19th September 2018, the Claimant instituted these proceedings against the Respondent, seeking judgment for;
a. A declaration that the Respondent infringed the rights of the Claimant under Section 22 and 23 of the HIV and AIDS Prevention and Control Act;
b. Damages for the impairment of dignity, emotional and psychological suffering;
c. A public apology by the Respondent to the Claimant;
d. Costs of this suit; and
e. Any other or further remedy that this Court shall deem fit to grant.
2. The Claimant avers that sometime in June 2016, she was diagnosed to be HIV positive and duly informed the Respondent, due to the nature of their relationship. The Respondent responded by becoming violent and abusive towards her. In her Statement of Claim, the Claimant highlights instances when physical and mental abuse was meted upon her by the Respondent, the last event having taken place on or about 15th May 2018.
3. The Claimant further alleges that the Respondent would constantly disclose the Claimant’s status without her consent to their children, friends and relatives. As a result, the Claimant has faced stigmatization and discrimination, hence suffered emotional and psychological harm and lowering of her dignity and self esteem.
4. In his Statement of Defence dated 16th October, 2018, the Respondent avers that he only got wind of the Claimant’s status whilst the Claimant was critically ill and admitted in hospital. He avers that he feels betrayed by the Claimant that in spite of supporting and being there for the Claimant, the Claimant went ahead and instituted this suit against him. He denies having disclosed the Claimant’s status or the violence alleged by the Claimant.
B. Issues for Determination
5. In their respective submissions dated 15th August 2019 and 15th October 2019, the Claimant and Respondent respectively, have enumerated and submitted on the following issues:-
i. Whether the Respondent abused the Claimant as stated in the Statement of Claim and Notice of Motion dated 6th November, 2018;
ii. Whether the Respondent disclosed the Claimant’s status without her consent; and
iii. Whether the Claimant is entitled to the reliefs sought.
We concur with these as the issues for determination by this Tribunal.
C. Evidence
6. The Claimant began her case and called 2 witnesses, the Claimant herself and DOA. The Claimant adopted her Witness Statement dated 19th September 2018. She testified that in June 2016, she fell ill and was taken to hospital. She tested HIV positive and disclosed her status to her husband, the Respondent. Since then, she has known no peace. The Respondent has been physically violent towards her, insisting that she reveal the names of the person(s) who infected her.
7. The Claimant testified that prior to the results, there had been peace at home. The violence began after her revelation. Not only did the Respondent physically abuse her in the presence of their children, but even in the presence of friends and visitors.
8. The Claimant relied on the evidence in her Supporting Affidavit sworn on 6th November 2018 in support of a Notice of Motion of even date. She also relied on the bundle of documents dated 17th October 2018.
9. On cross-examination, the Claimant testified that she and the Respondent had been married for 11 years. She is a nurse but is currently unemployed. She stated that the incidence of violence cited at paragraph 5(c) of the Statement of Claim had been reported to the police, although she did not produce any documents before this Honorable Court.
10. The Claimant testified that although there was an alteration on the Medical Examination Report dated 5th May 2018, with respect to the date on which she was seen by the doctor, the said alteration had not been countersigned. Further, the P3 Form dated 25th October 2018 indicated that the Claimant had been referred to hospital on 29th October 2018 under escort of self.
11. CW2 – DOA testified that she and the Claimant are childhood friends. She relied on her witness statement dated 4th October 2018.
12. Sometime in August 2016, CW2 went to visit the Claimant at her home following the Claimant’s discharge from hospital. CW2 narrated that the Respondent returned home late at night and upon exchanging greetings with CW2, the Respondent inquired from CW2 if she knew what the Claimant was ailing from. CW2 testified that the Respondent got angry and chased everyone out of the living room.
13. On cross examination, CW2 testified that upon greeting her, the Respondent retired upstairs to their bedroom. There was some commotion, and CW2 went up to find out what was happening. The Claimant then told CW2 that the Respondent demanded to know who had infected the Claimant.
14. The Respondent, upon adopting his statement dated 16th October 2018, testified that in June 2016, the Claimant had been unwell but the problem was unknown. She was admitted to the Metropolitan Hospital, and it was at this hospital that the Respondent was informed by the doctor of the Claimant’s status.
15. The Respondent narrated that his wife and children enjoy medical insurance provided by Jubilee Insurance Company. At the hospital, the Respondent was informed that the Insurance Company would not settle the Claimant’s medical expenses due to pre-existing conditions not covered under the insurance scheme. The Respondent would, therefore, have to foot the bill personally. This is when the Respondent got wind of the Claimant’s status.
16. The Respondent further testified that he was advised by the doctor, one Dr. Magada, to take an HIV test and he undertook the test at the Aga Khan Hospital. In the Laboratory Report dated 12th October 2016, the Respondent tested negative. He stated that the news of his wife’s status has really brought him down.
17. On cross examination, the Respondent admitted that he had prepared the pleadings and statements personally since he was not represented by Counsel at the time. The documents do not mention that the Respondent received the news of the Claimant’s status from the doctor.
18. Although the Respondent referred to some unpleasant text messages from the Claimant’s sister, the same were not produced before the Tribunal. The Respondent further testified that upon advice from the doctor, he undertook two tests, at Guru Nanak Hospital and Aga Khan Hospital. Only the results from Aga Khan Hospital were produced before the Tribunal. It is notable that the Respondent did not take a test at the same hospital where the Claimant was admitted.
19. Although the parties no longer co-habit, they have not filed divorce proceedings. The Respondent testified that he has not sought counseling for the psychological trauma.
D. Analysis
20. Both parties filed their submissions for consideration by the Tribunal. First and foremost, the Respondent has raised pertinent arguments with respect to the validity of the Medical Reports and P3 Forms adduced by the Claimant. We wish to address these issues first.
21. The Respondent submits that the production of the treatment chits and P3 Form herein infringe on the rules of evidence as stipulated under Section 33 of the Evidence Act and, therefore, the evidence ought to be rendered as hearsay and of no probative value. The Tribunal further notes the various issues raised by the Respondent with respect to the content of the reports and forms.
22. The Tribunal is guided by Section 27 (3) of the HIV and AIDS Prevention and Control Act, 2006 (hereinafter ‘HAPCA’) which provides that:-
In its determination of any matter the Tribunal may take into consideration any evidence which it considers relevant to the subject of the matter before it, notwithstanding that the evidence would not otherwise be admissible under the Evidence Act.
23. Furthermore, this Tribunal is quasi judicial nature, which implies that the Tribunal is not bound strictly to the rules of evidence. The fact that the P3 Forms and Medical Reports were produced by the Claimant and not their makers will not invalidate the same before this Tribunal in as far as the same are relevant to the issues for determination herein. Further, we note that these objections were not raised by Counsel for the Respondent either before the hearing or even as the documents were tendered by the Claimant.
Whether the Respondent abused the Claimant as stated in the Statement of Claim and Notice of Motion dated 6th November, 2018;
24. Having said that, we note that the jurisdiction of this Tribunal is civil and not criminal. The Claimant has raised very serious allegations of physical abuse meted upon her by the Respondent. The alleged incidents took place in September 2016, 17th April 2018, 4th May 2018 and 15th May 2018. In her evidence, the Claimant produced a Medical Examination Report and treatment chits in respect of incidents that took place on 5th May 2018 and 24th October 2018. CW2 testified as to the incident in 2016, following the Claimant’s discharge from hospital. The other earlier incidents were not reported and neither did the Claimant offer any explanation as to why these incidents were not reported to the police. The Tribunal also notes that no charges have been preferred against the known assailant.
25. The Tribunal is alive to the fact that most victims of domestic violence often suffer low self esteem and a deep sense of shame, which greatly hinders them from taking action against their oppressors. We note that the Claimant first approached this Tribunal on 7th May 2018, following the alleged incident on 4th May 2018. Thereafter, following the alleged incident on 24th October 2018, the Claimant moved this Tribunal for a restraining order against the Respondent, who had since moved out of their matrimonial home. It is curious why the Claimant did not pursue criminal charges against the Respondent for the said violence.
26. Be that as it may, the Claimant prays for damages against the Respondent due to the pain and suffering of the injuries sustained by the Claimant on the various occasions. The Claimant prays for a sum of Kshs. 1,000,000/- and relies on the cases of Teresia Njoki Mwangi v Elizabeth Wanjiru Kimani (2010) eKLR and Geoffrey Githiri Kamau v Attorney General (2015) eKLR in which the Plaintiffs were awarded Kshs. 120,000/- and Kshs. 200,000/-, respectively. Copies of the cited authorities were not attached to the submissions.
27. As earlier noted, the Claimant has provided medical records and police reports for incidences of violence that occurred on 5th May 2018 and 24th October 2018. Save for the testimony of CW2, there is no other evidence in support of earlier incidences of violence. Other than instituting the proceedings herein, the Claimant took no other steps to bring her assailant to book. This Tribunal cannot purport to understand the reasons behind this. The Claimant also testified that the violence began when the Claimant disclosed her status to the Respondent. Prior thereto, all was well between them.
28. This Tribunal notes that the Respondent did not address the issue of the physical violence either in his pleadings or in his testimony. The Respondent’s silence on the issue of the physical violence, therefore, makes it probable that he may have inflicted some physical assault on the Claimant. The jurisdiction of this Tribunal, however, only allows us to make a determination in respect of the civil aspects of this case, and in particular, those relating to one’s status, whether actual or perceived. On this note, the claim for pain and suffering for injuries sustained by the Claimant at the instance of the Respondent would, therefore, not fall within the purview of matters that can be determined by this Tribunal. On that basis, the claim must fail.
29. In respect of the emotional and psychological suffering, the Claimant talks of the damage to her dignity and the resultant low self-esteem caused by the emotional abuse. One of the objectives of this Tribunal is to address the issue of stigma against persons living with HIV. Stigma, whether experienced or perceived, often leads to low self esteem, isolation, depression and feeling of hopelessness, which greatly hinders the treatment and cure of persons living with HIV. Section 3 of HAPCA enumerates the objects and purpose of the Act, which include to positively address and seek to eradicate conditions that aggravate the spread of HIV infection. Research has shown that stigma is a great hindrance to the fight against the spread of HIV.
30. Whereas the Tribunal does not have the jurisdiction to hear and determine the issue of damages in respect of the physical injuries sustained by the Claimant, we do find that there is sufficient compelling evidence of emotional and psychological suffering by the Claimant, at the hands of the Respondent, as a result of her status. It is quite unfortunate when the first port of call for support, the family, turns out to be the source of mental anguish and suffering. Section 27 (7) (b) of HAPCA empowers the Tribunal to make such other order as may be appropriate in the circumstances. We, therefore, find that there was emotional and/or mental maltreatment of the Claimant by the Respondent and award a sum of Kshs 300,000/- for emotional and psychological suffering.
Whether the Respondent disclosed the Claimant’s status without her consent
31. On the issue of disclosure of the Claimant’s status by the Respondent without the Claimant’s consent, it is this Tribunal’s finding that the evidence led by the Claimant is insufficient to sustain the same. The Claimant alleges that the Respondent has disclosed the Claimant’s status to their children, to relatives and to friends who visit their home. However, the Claimant failed to lead any evidence demonstrating the fact that the Respondent had disclosed her status. CW2 did not talk of learning of the Claimant’s status through the Respondent. On this basis, this claim must fail.
32. It is our considered view that a public apology by the Respondent to the Claimant, as prayed for by the Claimant, will do little to mend the relations between the parties herein or preserve the dignity of the Claimant. Such an apology would only violate the Claimant’s right to confidentiality and privacy. It is the Tribunal’s duty to uphold the rights of every citizen. For this reason, we will not compel the Respondent to make a public apology to the Claimant. The Respondent is, however, free to apologize privately to the Claimant and take any steps necessary to mend relations between them in the best interests of their family.
E: Determination
33. In conclusion, judgment is hereby entered in favor of the Claimant and against the Respondent as follows:
(a) The Claimant is awarded the sum of Kshs 300,000/- for emotional and psychological suffering;
(b) The Claimant is awarded costs.
Dated and Signed at Nairobi this 22nd day of November, 2019.
Delivered at Nairobi this 22nd day of November, 2019.
Helene Namisi (Chairperson) ………………..…………..
Justus T. Somoire ……………………………
Melissa Ngania ………………………….....
Abdullahi Diriye ……………………………..
Dr. Maryanne Ndonga ……………………….......
Tusmo Jama ……………………………
Dorothy Jemator ………………………… …