WMK v TM (Cause 67 of 2023) [2024] KEHAT 1754 (KLR) (13 December 2024) (Judgment)
Neutral citation:
[2024] KEHAT 1754 (KLR)
Republic of Kenya
Cause 67 of 2023
Carolyne Mboku, Chair, NW Osiemo, W.G Jaoko, B.O Yogo, J.N Ngoiri, S. Musani & IN Mukui, Members
December 13, 2024
Between
WMK
Claimant
and
TM
Respondent
Judgment
A. Introduction
1.This Tribunal was moved by way of a Statement of Claim dated 2nd December, 2023 wherein the Claimant sought various remedies, to wit, orders of injunction, general damages, exemplary damages and costs of the suit on grounds that, with malicious intent, the Respondent disclosed the Claimant’s HIV status to the public without the Claimant’s authorization.
2.The matter partially proceeded for hearing on 12th September, 2024 with the Claimant testifying as the only witness.
B. Claimant’s Case
3.It was the Claimant’s case that on 27th October, 2023, the Claimant was sitting outside of a shop in the company of many other people when the Respondent, who was the Claimant’s former colleague, shouted insulting the Claimant that the Claimant was purporting to be a manager at their place of residence yet the Claimant was HIV positive and had infected many other people in the area. The Claimant testified that these actions by the Respondent affected her emotions causing her pain. That ever since, the Claimant is not at peace and that people always abuse her. It was the Claimant’s testimony that upon reporting the matter, the Respondent moved out of the residence.
C. The Respondent’s Case
4.Despite service of the proceedings, the Respondent never entered appearance and thus the claim proceeded undefended.
D. Issues For Determination
5.Having considered the Claimant’s pleadings, testimony and submissions as filed, the Tribunal has identified the following as issues for determination in this matter:i.Whether the Respondent unlawfully disclosed the Claimant’s HIV status, known or perceived, to third parties without consent;ii.Whether the Claimant is entitled to the reliefs sought.
E. Legal Analysis
Whether the Respondent unlawfully disclosed the Claimant’s HIV status, known or perceived, to third parties without consent?
6.The HIV and AIDS Prevention and Control Act, Cap.246A (hereinafter ‘HAPCA’) enacts at section 22(1) that;
7.HAPCA does not give a definition of the term disclosure, however, in the Black’s Law Dictionary, the same is defined as follows;
8.This Tribunal has previously held that a person’s HIV status, whether known or perceived, is a private affair and the provisions of HAPCA at section 22 prohibit the disclosure of the same without consent. This Tribunal has also severally referred to the case of GGOO -vs- MOA [2021] eKLR to expound on the meaning and parameters of disclosure in the context of the statue on HIV and parties and Counsel especially, are invited to revisit the Tribunal’s findings.
9.With the above in mind, this Tribunal has consistently pointed out that for a party to successfully plead disclosure, they ought to either corroborate the said disclosure by the evidence of an independent witness, or prove that there was publication in a forum accessible by third parties.
10.The Claimant herein was the sole witness and despite indicating that the offending utterances that disclosed her HIV status were made in the presence of the public some of whom the Claimant was sitting with in front of a shop, nobody else was called to confirm the allegations. It was the Claimant’s testimony that some of the witnesses were unwilling to give evidence in support of her claim. Unfortunate as the case may be, the Tribunal can only sympathize with the Claimant but not find in her favour. The Claimant failed to demonstrate clarity from the onset in terms of availability of any witness, no Summons to any of the witnesses was ever prayed for to compel the attendance of any of the witnesses that might have been uncooperative.
11.It is also imperative to point out that it is trite law that whoever makes an allegation, then the burden lies on them to prove the said allegations. Sections 107 and 108 of the Evidence Act, Cap.80 provide that;
12.Therefore, despite the Claimant’s case being uncontroverted, the Respondent having not appeared, the Claimant failed to discharge the above burden of proof necessary to tilt the balance of probabilities in her favour.
Whether the Claimant is entitled to the reliefs sought?
13.Having found the first issue to the negative, it essentially means that the Claimant’s claim fails.
F. Determination
14.The upshot is that this Tribunal finds and holds that the Claimant has failed to prove her case against the Respondent. The suit by the Claimant is hereby dismissed accordingly, and given the nature of the claim, there shall be no orders as to costs.
DATED AND SIGNED AT NAIROBI THIS 13TH 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)N/a Advocate For The ClaimantN/a For The RespondentMs. YasminMr. Oloo, Court Assistants