CN v CK (Tribunal Case 23 of 2023) [2024] KEHAT 1751 (KLR) (17 December 2024) (Judgment)
Neutral citation:
[2024] KEHAT 1751 (KLR)
Republic of Kenya
Tribunal Case 23 of 2023
Carolyne Mboku, Chair, NW Osiemo, W.G Jaoko, B.O Yogo, J.N Ngoiri, S. Musani & IN Mukui, Members
December 17, 2024
Between
CN
Claimant
and
CK
Respondent
Judgment
A. Introduction
1.Vide a Statement of Claim dated 27th February 2024, the Claimant herein moved this Honorable Tribunal seeking the following reliefs from the Respondent herein;a.A Declaration that the Respondent infringed the rights of the Claimant under the HIV and AIDS Prevention Act;b.Damages for the impairment of dignity, emotional, physical and psychological suffering; and,c.Costs of this suit.
2.On the same date, the Claimant filed a list of witnesses enlisting herself as the only witness, and her witness statement but did not file any list of documents or any bundle of documents.
3.The Respondent through her advocates entered appearance and filed her Response to the Statement of Claim dated 3rd April 2024 together with two witness statements, where she denied in toto all that was contained in the Statement of Claim.
B. Claimant’s Case
4.The Claimant avers that at all material times relevant to this cause, she worked as a house help in the Respondent’s home in Lower Kabete between the year 2022-2023.
5.That during this time she was living with her relative, whom she had been working with in the same neighborhood; and it is after she had a disagreement with the said relative that it was later revealed that she had disclosed her status to the Respondent.
6.The Claimant averred that the said relative approached her employer, the Respondent and made false allegations that the Claimant was breast feeding the Respondent’s infant and further informed the Tribunal that the said relative pretentiously raised concerns to the Respondent that it was wrong for the Claimant to breast feed because of her health status.
7.That upon the Respondent learning of this, the Caimant was dismissed from her employment without any notice and no due process was followed as provided for in law.
8.The Claimant avers that the Respondent’s actions and conduct towards her are discriminatory, stigmatizing and are in breach of her statutory rights resulting to pain and suffering physically, emotionally and psychologically.
9.The Claimant told this Tribunal that her health has deteriorated after being dismissed from her work as it was her only source of income and therefore prays for judgment against the Respondent.
C. Respondent’s Case
10.In her Response to the Statement of Claim, the Respondent told this Tribunal that the Statement of Claim was infused with falsehoods and deliberate concealment of material facts, and that the correct position and in response to the claims made is that the Respondent employed the Claimant sometime in 2021 as a domestic manager/House help.
11.That it was during the time of her employment that the Respondent’s baby was kept in unhygienic conditions.
12.Furthermore, that there were incidences where the Respondent’s CCTV could capture the Claimant sharing her food with her baby, using the same cutlery and that during the pendency of her employ, the child was regularly hospitalized for cold related complications including pneumonia due to the neglect occasioned by the Claimant.
13.It was the Respondent’s testimony that at all times, unlike as earlier stated by the Claimant, that the Claimant lived with the Respondent and not with the Respondent’s relative, and to further support her averments, the Respondent sought leave and attached a witness statement of one CK who she told this Tribunal is her cousin.
14.That the neighbors informed her that the Claimant could leave her child unattended to for hours, and go out on dating sprees; and that the Respondent had valid reasons to terminate the Claimant’s employment and summarily dismiss the Claimant for gross misconduct at work.
15.The Respondent avers that this claim has no valid legal basis since she terminated the Claimant’s employment for valid reasons under the Employment Act and that she had, on several occasions, made verbal warnings to the Claimant to ceased abandoning her child, to go on frolics of her own since it was compromising the safety and well-being of the child.
16.It was the Respondent’s testimony that at all material times, the Claimant was in good health and at no time did anyone disclose the Claimant’s status and that in any case, such a disclosure would have been irrelevant and immaterial to the Respondent since it was never the basis upon which the Claimant was employed, and maintained that the disclosure of the Claimant’s status was known to her only after the filing of this Cause.
17.The Respondent prays this Honorable court dismisses this cause with costs to her since the Statement of Claim is meritless, frivolous, vexatious and unsustainable in law.
18.The Respondent filed the witness statement of CK, who avers that he is the Respondent’s cousin and told this Tribunal that for the period between December 2022 to December 2023, he was staying with the Respondent the same period which the Claimant was working as a domestic manager.
19.He told the Tribunal that during the pendency of her employ, the Respondent treated the Claimant like she was her family and sometimes purchased foodstuff, clothes and other necessities for the claimant when she would leave to go visit her parents and child in Taita Taveta.
20.That a few months into her employ, the Claimant started to abandon her duties and would leave the Respondent’s child unattended to, and go out on her dating sprees, which led to the minor developing a number of cold related complications that led to several hospitalizations for the minor.
21.That on several occasions, the Respondent verbally warned the Claimant on the issue of neglecting the minor, and gave the Claimant a number of warnings on her poor performance of her duties.
22.He further stated that as a result of the Claimant’s actions of neglecting the minor, the Respondent installed CCTV cameras to ascertain the situation at home and to their utter shock, discovered that the Claimant was sharing her food with the minor; feeding the child from the same cutlery and the child was barely fed.
23.It was his testimony to this Tribunal that it was as a result of the Claimant’s conduct and failing to adhere to the numerous warnings the Respondent had issued that the Respondent terminated her employment.
24.Furthermore, he told the court that on the day of her termination, the Respondent paid the Claimant all her dues before releasing her and that this honorable Tribunal should dismiss the claim against the Respondent.
D. Issues for Determination
25.Having had the opportunity to hear from both parties and read through their written submissions, the Tribunal has summarized the following as the issues for determination;a.Whether the Claimant was discriminated on account of her HIV/AIDS status;b.Whether the Claimant is entitled to the reliefs sought.
E. Legal Analysis
Whether the Claimant was discriminated on account of her HIV/AIDS status
26.The term discrimination although not defined in the HIV and AIDS Prevention and Control Act, is defined in the Black’s 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..”
27.In submitting on this issue, the Claimant quoted Section 31(1)(b) of the HIV and AIDS Prevention and Control Act that provides that no person shall be transferred, denied promotion or have his employment terminated, on grounds only of his actual, perceived or suspected HIV status.
28.Additionally, the Claimant makes reference to section 46 of the Employment Act that makes it illegal to terminate any employee on account of their status.
29.It was the Claimant’s testimony that she started working as the Respondent’s House help from 26th June 2021 to 18th March, 2022 and on the day of her termination, the Respondent asked her if she was sick with AIDS and further asked her why she had been taking care of her child knowing that she was HIV/AIDS positive.
30.The Claimant further stated that the Respondent told her that she came to know of the Claimant’s status from the Claimant’s cousin, and proceeded to show her a photo of the ARV medication she was taking and afterwards, paid all her dues, told her to pack her belongings and leave.
31.During cross examination, she stated that the correct time frame in which she was working for the Respondent was between the year 2021 to 2022 and not as was stated in her Statement of claim and witness statement; 2022-2023.
32.The Claimant further stated during her cross exam that her relationship with the Respondent was good and that she did her work properly, and never left the child unattended as alleged by the Respondent, and that she was never aware that there were hidden cameras in the house. She however, did not deny the claim that she shared cutlery with the child.
33.It was the Claimant’s testimony that the Respondent knew of her status through the Claimant’s cousin and informed the court during re-examination that she introduced her cousin t the Respondent when she was hunting for a job.
34.The Respondent on the other hand told the court during hearing that her child was one year old at the time she was employing the Claimant as her house help.
35.That the Claimant was sickly, but the Respondent never asked her about her HIV status and only learned of it after this present cause was filed in court.
36.The Respondent maintained that she only terminated employment of the Claimant because she neglected her child and would regularly leave her unattended while the Claimant would go on dating sprees.
37.During her cross-exam, the Respondent told this Tribunal that she installed CCTV cameras even before the Claimant came to work for her and that she could see that the Claimant was sharing cutlery with her child and leaving the child unattended to.
38.CK, who was the Respondent’s second witness and cousin to the Respondent adopted his witness statement and further told the court that in December of 2022 he permanently moved to the Respondent’s house and that she could, occasionally, complain to him about the Claimant neglecting her child and proceeded to show him a CCTV footage of the Claimant sharing a spoon with the child while she was feeding the child Yoghurt.
39.He further told the court that the Claimant had received a number of verbal warnings from the Respondent for her conduct during her employment; and one instance he remembered was when the Claimant went to her home in Taita Taveta and came back with her child, wanting to raise both her child and the Respondent’s child in the same house without getting approval from the Respondent.
40.However, it is noteworthy that the Respondent did not provide any photos or video footage to also support her defense against the claims brought against her.
41.It is this Tribunal’s opinion that for one to claim that they have been discriminated against on account of their HIV /AIDS status, then there must have been, firstly, disclosure of their HIV/AIDS status and therefore, even though the question of Disclosure was not addressed by both parties, we will briefly consider it, to properly enable us handle the issue of whether there was discrimination from the Respondent towards the Claimant.
42.Indubitably, the standard set by this Tribunal is to prove disclosure, one must tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the said on a platform or a forum that could be easily accessed by a third party thereforeor a Claimant to succeed in a claim for disclosure as provided under Section 22 of HAPCA, the Claimant must provide a witness to corroborate the evidence of disclosure in order to discharge that burden in respect of disclosure.
43.We again refer to The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:
44.In this case, the Claimant did not avail live witnesses or documentary evidence to show that the Respondent was at all times aware of her HIV status, real or perceived, the timing of this knowledge and the subsequent dismissal around the time to court to corroborate her claims.
45.That being said, this honourable Tribunal finds that the Claimant has failed to convince this Tribunal that the Respondent was aware of her status, and that it is solely based on her status that she was terminated from employment and inevitably, failed to convincing this Tribunal that the Respondent has not only violated provisions of the HAPCA.
Whether the Claimant is entitled to the reliefs sought
46.After having found that the first issue was not satisfactorily proven as is the dictate and requirements of the law, this Honourable Tribunal finds that, similarly to the first issue, this limb equally fails.
F. Determination
47.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 standard and hence, failed to discharge her burden of proof.
48.This cause is, therefore, dismissed. Given the nature of the proceedings herein, we direct that each party shall bear their own costs.
49.Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2024.HON. CAROLYNE MBOKU - (CHAIRPERSON)Delivered virtually in the presence of:HON. NELSON W. OSIEMO - (MEMBER)HON. W. G. JAOKO - (PROF., MEMBER)HON. B. O. YOGO - (MEMBER)HON. JANE N. NGOIRI - (MEMBER)HON. S. K. MUSANI - (DR., MEMBER)HON. DR. IRENE MUKUI - (DR., MEMBER)mrs katee advocate for the claimantN/a For The RespondentMs. YasminMr. Oloo, Court Assistants