PMM v EA (Tribunal Case 047 of 2022) [2023] KEHAT 373 (KLR) (Civ) (29 June 2023) (Judgment)
Neutral citation:
[2023] KEHAT 373 (KLR)
Republic of Kenya
Tribunal Case 047 of 2022
Carolyne Mboku, Chair, W.G Jaoko, NW Osiemo, B.O Yogo, S. Musani & J.N Ngoiri, Members
June 29, 2023
Between
PMM
Claimant
and
EA
Respondent
Judgment
Introduction
1.The Claimant instituted this Claim vide a statement of claim dated 8th September 2022 primarily seeking :a.An order against the Respondent restraining him from disclosing the Claimant’s status, discriminating, stigmatizing and/or harassing the Claimant.b.A declaration that the Respondent violated the rights of the Claimant under section 22 and 23 of the HIV And AIDS Prevention and Control Act.c.Damages for the impairment of dignity, emotional, physical and psychological sufferingd.Special damages of Kes. 3,000 for counselinge.Costs of the suit.
2.The Claimant adopted his statement in evidence and testified that he and the Respondent are members of [ParticularsWithheld] youth forum in Kakamega which has a whatsapp group with 344 members. The Claimant’s phone number is +2547xxxx user name PM while the Respondent’s number is +2547xxxx user name Hon. A.
3.On 12th August 2022 the claimant and the Respondent while engaged in a political discussion had a disagreement and the Respondent responded to the claimant’s comment on the whatsapp group by stating:
4.The Claimant testified that as a result of the comment, he faced mockery, discrimination and psychological torture and has undergone counseling at Amani Counseling.
5.The Responded did not file a response denying the claimant’s claim despite being aware of the same. The Claimant filed an affidavit of service dated 28th October 2022 sworn by Loise Muthoni Nyoike a licensed process server who averred that she served the Respondent with the summons and claim on 15th September 2022. The Respondent was equally served with the hearing notice informing him that the case was scheduled for hearing on 5th May 2023 pursuant to the affidavit of service filed in court on 3rd May 2023. The claim is therefore un opposed and deemed admitted by the Respondent in line with provisions of Order 2 rule 11 of the Civil Procedure Rules.
Legal Analysis
6.Section 22 (1) (a) of HIV and AIDS prevention and control Act provides:No person shall disclose any information concerning the results of an HIV test or any related assessment to any other person except with the written consent of that person.
7.The tribunal has considered the pleadings and the evidence of the Claimant all of which are uncontroverted. The Claimant produced before the tribunal an attempted mpesa transaction showing that telephone number +2547xxxx belongs to the Respondent and a screen shot of the comment made by the Respondent touching on the Claimant’s status whether real or perceived. The whatsapp group was made up of 344 members who undoubtedly read the comment. The Claimant testified that he did not disclose his status to the Respondent or authorized him to disclose his status.
8.The Claimant further testified that as a result of the disclosure he faced mockery, discrimination and psychological torture and was undergoing counseling at Amani Counseling where he paid kes. 3,000.
9.The Claimant has proved his case on a balance of probabilities as is required in cases of civil nature and is therefore entitled to protection of his rights as envisaged under section 22 and section 23 of the HIV and AIDS Prevention and Control Act.
Reliefs
10.In the premises, the tribunal hereby grant the following orders:1.The Respondent disclosed the HIV status of the Claimant without his consent contrary to the provisions of Section 22 and 23 of the HIV and AIDS Prevention and Control Act.2.The Respondent be and is hereby restrained from disclosing the Claimant’s status, discriminating, stigmatizing and/or harassing the Claimant.3.Damages for unlawful disclosure of the Claimant’s HIV status at Kes. 350,0004.Damages for the impairment of dignity, emotional, physical and psychological suffering at kes.500,0005.Special damages of Kes. 3,0006.Costs of the suit.
11.Judgment accordingly.
DATED AND SIGNED AT KISUMU THIS 29TH DAY OF JUNE 2023.DELIVERED AT KISUMU THIS THIS 29TH DAY OF JUNE 2023.HON. CAROLYNE MBOKU (CHAIRPERSON) ...............HON. W.G JAOKO (MEMBER) .........................HON. N.W OSIEMO (MEMBER) ........................HON. B.O YOGO (MEMBER) ..........................HON. S. MUSANI (MEMBER) .........................HON. J.N NGOIRI (MEMBER) ........................Delivered virtually in the presence of :Mrs. Mugo h/b for Mr.Wambogo Advocate for claimant.N/A for the Respondent.