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|Case Number:||HIV & AIDS Cause 27 of 2018|
|Parties:||EOD v OC & SAO|
|Date Delivered:||04 May 2020|
|Court:||HIV and AIDS Tribunal|
|Judge(s):||Helene Namisi (Chairperson), Melissa Ng’ania, Justus T. Somoire, . Maryanne Ndonga, Tusmo Jama, Dorothy Kimeng’ech & Abdullahi Diriye|
|Citation:||EOD v OC & another  eKLR|
|Case Outcome:||Claimant awarded|
|Sum Awarded:||Kshs. 350,000/=|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIV & AIDS TRIBUNAL AT NAIROBI
H.A.T. CAUSE NO. 27 OF 2018
OC 1ST RESPONDENT
SAO................................... 2ND RESPONDENT
A. THE PLEADINGS
1. The Claimant, EOD, filed a Statement of Claim on 18th December, 2010. It is the Claimant’s case that he resides at [particulars withheld] in Kisumu County where the 1st Respondent also resides, while the 2nd Respondent is their landlady. It is the Claimant’s case that on 5th November, 2018 at around 7 am, the 2nd Respondent went to the house of the Claimant claiming rent arrears and a confrontation ensued. The Claimant further pleads that as a result of the confrontation, the 1st Respondent together with other neighbors came to witness what was happening. The Claimant also pleaded that the 1st and 2nd Respondents started hurling insults at the Claimant in the presence of the whole community. It is the Claimant’s case that the Respondents have continued to discriminate against the Claimant by locking the toilets that are commonly shared by all the tenants on grounds that the Claimant would infect the 1st Respondent and other tenants with HIV. This action by the Respondents has caused the Claimant psychological torture which necessitated the Claimant to seek the services of a counsellor.
2. The Claimant also pleads that the Respondents disclosed his HIV status without his consent, which has led the Claimant to be discriminated upon and stigmatized. The Claimant also pleads that he has suffered both physical and verbal torture inflicted on him as a result of the verbal insults hurled upon him by the Respondents. As a result the Claimant seeks an apology and general damages.
3. The Respondents filed a Response to the Statement of Claim on 22nd August, 2019. The Respondents admitted the fact that the 1st Respondent is, indeed, a neighbour to the Claimant whereas the 2nd Respondent was their landlady. The Respondents denied the Claimant’s claim and prayed that the suit be dismissed with costs. The Respondents also filed a Notice of Preliminary Objection dated 17th January, 2020 in which the Respondents raised a question on the jurisdiction of the Tribunal to hear the matter. The Notice of Preliminary Objection was withdrawn by the Advocate for the Respondents on 17th January, 2020 and the matter proceeded to full hearing.
4. In the final analysis, the Claimant prayed for Judgement against the Respondents for;
a) An Order against the Respondents restraining them from discriminating, stigmatizing and or harassing the Claimant;
b) A declaration that the Respondents infringed on 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 and psychological suffering;
d) A public apology by the Respondent to the Claimant; and,
e) Costs of the Suit.
B. THE CLAIMANT’S CASE
5. In support of the Claimant’s case, the Claimant (CW1) and JW (CW2) testified on 17th January, 2020. The Claimant adopted his statement dated 17th December, 2018 and filed with the Tribunal on 18th December, 2018. The Claimant testified that he works with Lake Basin Development Authority and has resided at [particulars withheld] Estate for more than ten (10) years. He personally knows the 1st Respondent, who is his neighbor, while the 2nd Respondent is the landlady.
6. The Claimant further testified that on 5th November, 2018 at around 7.30am, he was in the house preparing to go to work when he heard voices outside quarrelling. The Claimant avers that he went out to see what was happening only to find the Respondents standing outside the Claimant’s door inquiring as to why the Claimant was still living at the premises when he ought to have vacated.
7. It was the Claimant’s testimony that he did inform the Respondents that he had not vacated the house because he had not secured another house. The Claimant further testified that the Respondents insisted that the Claimant ought to vacate the house because the Claimant had been served with notice and that the house needed to be renovated. The Claimant informed the Tribunal that when he inquired as to why he was the only tenant who had been asked to vacate, the Respondents replied, “We have really helped you. You are HIV positive, you should continue taking the drugs in peace.” It was the Claimant’s testimony that by this time, a multitude of people had gathered because the Respondents were shouting and quarrelling and where the Claimant and the 1st Respondent reside is by the roadside.
8. The Claimant testified that as a result of the insults, he was advised by one of his friends to report the matter to the police which he did. In support of this, the Claimant produced a Report dated 17th December, 2018. As a result, the OCs Kondele Police Station sent two (2) police officers who arrested the Respondents. The Claimant further testified that there were many other incidences where the Respondents had tried to evict the Claimant from the house to the extent that they had appeared before the Rent Tribunal.
9. According to the Claimant, the bathroom is communal and whenever the Claimant uses the bathroom, the 1st Respondent always insults the Claimant for contaminating the bathroom and that whenever the 1st Respondent sees the Claimant, the 1st Respondent always spits at him.
10. It was the evidence of the Claimant that as a result of the Respondents’ actions, he got depressed and had to seek counselling services at Jaramogi Oginga Odinga Hospital. To support this testimony, the Claimant produced a letter dated 12th November, 2018 where, according to the Claimant, he was treated and returned home to continue with his medication.
11. In his testimony, the Claimant testified that before the differences with the Respondents, the Claimant and the Respondents where friends and that the Respondents knew of his status when the Respondents visited the Claimant in hospital after the Claimant was taken ill and admitted. It was the Claimant’s evidence that he had not given the Respondents any consent to disclose his status.
12. On cross-examination by Mrs. Nyang’, Counsel for the Respondents, the Claimant testified that he had been living at the 2nd Respondent’s house for six (6) years in a one(1) bedroomed house where the rent is currently Kshs. 3500/=. Initially he used to pay Kshs. 2500/=. The Claimant further testified that he had been issued with a notice to vacate the premises in 2018 but had not vacated the house because according to the Claimant, he was still looking for a house.
13. It was the evidence of the Claimant that the 2nd Respondent resides in Oyugis. On 5th November, 2018, the 2nd Respondent had visited the premises and the Claimant heard a loud voice outside his house, which voice, according to the Respondent, was from the Respondents telling the Claimant to vacate the house.
14. It was the Claimant’s position that he did not disclose to the 2nd Respondent his HIV status and according to the Claimant, it was the 1st Respondent who had visited the Claimant in hospital some time back when the Claimant had been taken ill. The Claimant was categorical that the 2nd Respondent never visited him in hospital. According to the Claimant, it was only his doctor and family that knew of his status. According to the Claimant, the Respondents were aware of his status because of what they had said publicly to so many people who included the Claimant’s wife and the children who were present on that material day.
15. The Claimant further testified that he did report the Respondents to the police on the same day, 5th November, 2018 where the Respondents were arrested and later released on bond. The Claimant was, however, not aware whether the Respondents were later charged or not.
16. The Claimant also testified that he had been paying rent, though the Claimant had no statements from the Rent Tribunal to confirm his averment. The Claimant also informed the Tribunal that when the confrontation ensued, there were many people who included one SO, who was the Claimant’s neighbour and many other people whom the Claimant could not recall. It was the Claimant’s testimony that the 2nd Respondent being close with the 1st Respondent was aware of the Claimant’s HIV status.
17. On re-examination, the Claimant testified that the toilet was previously one but they are now two, which are currently being shared between the two houses. According to the Claimant, he wanted the Tribunal to compensate him for wrongful disclosure of his HIV status.
18. CW2, one JAA, testified that she resides at [particulars withheld] Estate in Kisumu and works at [Particulars Withheld] School for the Visually Impaired. CW2 testified that Claimant and the 1st Respondent are her neighbors whereas the 2nd Respondent is their landlady. CW2 further testified that on 5th November, 2018 at around 7:30 am, she was in her house when she heard noises and CW2 went out to inquire what the noises were about. She found the Respondents in front of the Claimant’s house abusing the Claimant over the Claimant’s HIV status.
19. It was CW2’s evidence that she, together with neighbors and passerby, were present when the Respondents insulted the Claimant. According to CW2 she went to where the Claimant was to calm him down and advised him to report to the police. According to CW2, the words that the Respondents said about the Claimant were:
“EOD is HIV positive, with diarrohea and they assisted him at the verge of death, it is not them who infected him with the virus and he should proceed and take ARVs because he was almost dying.”
20. On cross examination, CW2 testified that she paid rent to one HO who is a step son to the 2nd Respondent and that the 2nd Respondent had once issued CW2 a notice to vacate but that CW2 never discussed the issue with the 2nd Respondent because according to CW2 she did not pay rent to the 2nd Respondent.
21. It was the testimony of CW2 that before the incidence of 5th November, 2018 the Claimant and the 1st Respondent used to share a bathroom and that whenever the Claimant used the bathroom before the 1st Respondent, the 1st Respondent would always clean the bathroom claiming that the bathroom had been contaminated by the Claimant and that they would fall sick. CW2 further testified that they had even reported these incidences to the police who eventually referred them to the Assistant Chief.
22. According to CW2, she was present on 5th November, 2018 and that the insults were so loud. Each Respondent, according to CW2, was hurling insults at the Claimant, the 1st Respondent saying “Take your ARV’s in peace, I helped you when you were almost dying, take your medicine in peace” while the 2nd Respondent said “You from Sondu, I did not infect you. Take medication in peace. Teddy’s father assisted you when you had diarrhea and you were almost dying.” According to CW2, she was not aware of the Claimant’s status nor that the Claimant was on ARV’s. CW2 was also not aware whether the Respondents assisted the Claimant or not nor was she aware that the Claimant had ever been taken ill. What CW2 was aware of was the fact that the Claimant had once been involved in an accident.
23. CW2 further testified that the Claimant was her immediate neighbour, then a lady called Milka then the 1st Respondent. Initially, CW2 used to share a toilet with another tenant who has since passed on, but at the moment she shares the toilet with the Claimant. According to CW2, the issue of toilets had persisted for a while and that the 1st Respondent had continuously spitted saliva at the sight of the Claimant. This marked the close of the Claimant’s case.
C. THE RESPONDENTS’ CASE
24. The Respondents called two witnesses to testify, the 1st and 2nd Respondents, respectively. According to the 1st Respondent, she knew the Claimant, who is her neighbour at [particulars withheld] Estate in Manyatta area, where she had lived for twenty (20) years while the Claimant moved in 2011. The 1st Respondent adopted her Statement dated 15th January, 2020 and filed with the Tribunal on 16th January, 2020.
25. The 1st Respondent testified that on the morning of 5th November, 2018, she was preparing to go to work. While coming from the bathroom, she saw the Claimant standing outside his door carrying a sword. She proceeded to her house and while in her house, she heard a man quarrelling. According to the 1st Respondent, the Claimant at that time was alone outside while the 2nd Respondent was in another tenant’s house.
26. The 1st Respondent further testified that she heard the 2nd Respondent shout, an act that made her come out of her house where she found the Claimant and the 2nd Respondent exchanging insults. She went and pulled the 2nd Respondent away and they went back to her house. Later on, the police came and took the 2nd Respondent and herself to the Police Station.
27. In her testimony, the 1st Respondent noted that during the confrontation between the Claimant and the 2nd Respondent, she heard the Claimant say, “I am not moving out of the house because the notices you gave where fake. If you want me to move out you are going to know me today”. The 2nd Respondent replied, “You are going to leave my house or otherwise you are going to be my husband.” The 1st Respondent indicated that while at the Police Station, they were not charged because according to the OCS, they had no case to answer.
28. The 1st Respondent also testified that when the Claimant moved in, she was the one who gave the Claimant a house and when the Claimant fell ill, she went to visit the Claimant in hospital and took him some fruits. According to the 1st Respondent, she visited the Claimant only once and that she was not aware of the status of the Claimant. There was no way that she could have been aware.
29. The 1st Respondent further testified that she usually leaves very early in the morning for work, at around 6am, and as such she is rarely at home and, therefore, cannot tell at what time the Claimant usually uses the bathroom. In her testimony, the 1st Respondent stated that her relationship with the Claimant broke down when she refused to support the Claimant with his intention of not moving out.
30. The 1st Respondent informed the Tribunal that the 2nd Respondent lives very far from Kisumu. On several occasions, the 2nd Respondent calls the 1st Respondent’s husband or herself to inquire about the status of the plot. She also confirmed that whenever the 2nd Respondent comes to Kisumu, she would host her because they are close.
31. On cross examination, the 1st Respondent testified that she shares a bathroom with the Claimant. According to her, the Claimant fell ill as soon as he had moved in to the premises but she could not recall the year. The 1st Respondent confirmed that the Claimant had been admitted at District Hospital.
32. It was the testimony of the 1st Respondent that the 2nd Respondent travelled from Sondu on 4th November, 2018 and that the confrontation took place on 5th November 2018 at 7 am. On that day, the 1st Respondent had not left for work because she had other issues to attend to. It was her testimony that the 2nd Respondent was in the house of another tenant, Milkah, and that she witnessed the Claimant verbally abuse the 2nd Respondent. Despite the fact that the Claimant was holding a sword, he never used it. The confrontations, according to her, took place when there were no people around save for the tenants that live across the road. According to her, CW2 was not present.
33. According to the 1st Respondent, the 2nd Respondent did not give her notice to vacate because the 2nd Respondent owed her money arising from the electricity connection. The 1st Respondent had paid Ksh. 35,000/= for the electricity connection, while her rent ideally ought to be Kshs. 5000/= per month but she pays Kshs. 3,000/=per month. The difference in rent is used to recover her money.
34. On re-examination, the 1st Respondent testified that she was not aware when the Claimant fell sick and neither does she recall when she went to visit the Claimant in hospital.
35. The 2nd Respondent testified that she lives in [Particulars Withheld] in Kendu Bay and that she is not familiar with the case. Prior to the case, she was not aware of the Claimant’s HIV status. According to the 2nd Respondent, the relationship between herself and the Claimant became strained when she issued the Claimant with notice to vacate the house. The 2nd Respondent also testified that the Claimant and CW2 shared a toilet and the two reside in house no. 1 and 2, respectively, whereas the 1st Respondent resides in house no. 3 and shares a toilet with another tenant.
36. It was the testimony of the 2nd Respondent that as the landlady, she had never received any complaint from any of the tenants over the usage of the bathroom and what she was aware was the fact that the bathroom was always left open and whoever wanted to use the bathroom was free to clean the same before use.
37. According to the 2nd Respondent, she was aware that the Claimant had at one time fallen sick and had been admitted to hospital but was not aware what the Claimant was ailing from. She had assumed that he was ailing from malaria. The 2nd Respondent testified that she had travelled to Kisumu and slept at house no. 4 which belonged to the 1st Respondent. On 5th November, 2018 at around 7.15 am, she had gone to house no. 3 to inquire why the tenant had not moved out despite the fact that she had issued notice. The tenant at house no. 3, according to the 2nd Respondent, spoke in a loud voice which prompted the Claimant to come out of his house shouting, “This woman is joking with us. She is a fool. We will not vacate these premises.” The Claimant was holding a stick. The 2nd Respondent further testified that this got her agitated and retorted to Claimant that if he was the owner of the houses, then she would move in with him.
38. According to the 2nd Respondent’s evidence, it was only the tenants in occupation of houses No. 3 and 4 as well as the Claimant’s children and wife that were present during the altercation. Despite the fact that the plot was close to the road, there were no people from outside who had gathered.
39. On cross examination, the 2nd Respondent testified that she had issued three (3) notices for the Claimant to vacate the house but the Claimant had declined. On the material day, the 2nd Respondent was inside house No. 3 when she heard the Claimant talking outside, but she was not aware why the Claimant was quarrelling. According to the 2nd Respondent, it was the Claimant who insulted her and even threatened to hit her with a stick.
40. On re-examination, the 2nd Respondent confirmed that what she was testifying before the Tribunal was the whole truth. That marked the close of the Respondents’ case.
41. The parties were directed to file written submissions which the Claimant filed on 6th March, 2020 while the Respondents filed on 9th March, 2020. Having analyzed the evidence and considered the submissions filed, the issues that fall for determination by this Tribunal are:
i. Whether the Respondents are guilty of disclosure of the Claimant’s HIV status contrary to Section 22 of HAPCA;
ii. Whether the Claimant is entitled to an award of damages; and
iii. Who is entitled to the costs of the suit.
42. Section 22 of HAPCA provides that no person shall disclose any information concerning the results of an HIV test or any related assessment of that person. The Claimant accuses the Respondents of having disclosed his status to third parties. The Claimant testified that on 5th November, 2018 the Respondents insulted the Claimant in front of people who were outside the premises, claiming that the Claimant should take his ARVs in peace. According to the Claimant, the 1st Respondent got to know of his HIV status when she visited the Claimant in hospital. It was the evidence of the Claimant that the 2nd Respondent had come to know of his HIV status through the 1st Respondent because they are close. To prove this allegation, the Claimant called CW2 who testified that on that material day, she witnessed the confrontation between the Claimant herein and the Respondents. It was the evidence of CW2 that the Respondents insulted the Claimant over his HIV status. There were so many people who gathered around because, according to CW2, they live close to the road. CW2 also testified that prior to the confrontation between the Claimant and the Respondents, she was not aware that the Claimant was HIV positive. She also never knew that the Claimant had ever been taken ill.
43. The Respondents denied having insulted the Claimant over his HIV status. They did not call any witness to collaborate this assertion. According to the 1st Respondent, on that day, she was preparing to go to work and while coming from the bathroom, she saw the Claimant outside carrying a sword. When the confrontations between the Claimant and the 2nd Respondent occurred, there was nobody save for the tenant in house No. 3 and the tenants across the road. The 1st Respondent was also categorical that she usually leaves very early in the morning around 6am but on cross examination, the 1st Respondent testified that she did not leave that day in the morning because she had some other issues to attend to. She did not mention what issues those were. The 1st Respondent also testified that the 2nd Respondent usually comes to live with her whenever she visits Kisumu because, according to the 1st Respondent, they are close. The 1st Respondent confirmed having visited the Claimant in hospital sometime back when he was hospitalized though she did not know what the Claimant was suffering from.
44. On the part of the 2nd Respondent, she confirmed that she spent the night at the 1st Respondent’s place when she came to Kisumu that evening. It was also the evidence of the 2nd Respondent that when the confrontation with the Claimant ensued, the Claimant was carrying a stick and that the only people that were around were the occupants of houses No. 3 and 4 as well as the Claimant’s children and wife. It was the 2nd Respondent’s evidence that though the plot is close to the road, there was nobody from outside who came. The 2nd Respondent also testified that she was aware that the Claimant had once been taken ill and admitted in hospital though she did not know what the Claimant was suffering from and had presumed that it was malaria.
45. For a Claimant to succeed in a claim for disclosure as provided under section 22 of HAPCA, the Claimant must provide a witness to collaborate the evidence of disclosure in order to discharge that burden in respect of disclosure. This Tribunal has considered this issue on a number of cases. See the cases MCM –VS- BOO  ekLR and BNN –VS- CMM (2019) eKLR, where this Tribunal held that for a party to succeed in a claim of disclosure, a Claimant must call a witness to show that the information was disclosed to another person other than the Respondent himself.
46. In the instant case, the Claimant called CW2 who testified that she heard the Respondents insult the Claimant about his HIV status. According to CW2 the 1st Respondent insulted the Claimant that, “Take your ARV’s in peace. I helped you when you were almost dying, take your medicine in peace”, while the 2nd Respondent said “You from Sondu, I did not infect you. Take medication in peace. Teddy’s father assisted you when you had diarrhea and you were almost dying.” It is, therefore, the finding of this Tribunal that the Claimant discharged that burden and it was incumbent upon the Respondents to prove that they did not utter the said words.
47. In their testimony before the Tribunal, the Respondents denied uttering the said words about the Claimant’s status because according to them, they were not aware whether the Claimant was HIV positive or negative. It is immaterial whether the Respondents knew the status of the Claimant. What is central and crucial is the fact that the said words were said by the Respondents, which words referred to the HIV status of the Claimant which in effect amounted to disclosing the status of the Claimant contrary to section 22 of HAPCA. The Respondents have submitted that the status of the Claimant is not known and it cannot, therefore, be said with certainty whether the Claimant is HIV positive for there to be disclosure. A reading of section 22 prohibits disclosure of one’s HIV status and the said provision does not say that the status to be disclosed is that of one who is HIV positive. Under section 22 of HAPCA, it is, therefore, immaterial whether a person is HIV positive or HIV negative as the HIV status of a person is a private affair. The import of section 22 of HAPCA is that it protects against the necessary revelation of information relating to the HIV status of a person in order to protect such a person from the disclosure and attendant stigmatization and mental distress and injury. This position is further fortified by section 3 of HAPCA which prohibits against compulsory testing of a person.
48. It was also the evidence of the 1st Respondent that there was nobody else who was around save for the tenants who live near the road and that CW2 was not around. The 2nd Respondent, on the other hand, testified that the only persons who were around where the occupants of houses No. 3 and 4 as well as the Claimant, the Claimant’s children and wife but denied that people from outside gathered. According to CW2, she was present and even went to the Police Station to record a statement. This evidence was not challenged. The Claimant and CW2 testified that many people gathered because they live near the road. From the analysis of this evidence, the 1st Respondent corroborated the evidence given by the Claimant when she testified to the effect that tenants who live near the road were present. From the analysis of this evidence, it is clear that it was not only the Claimant who was present when the said words were uttered by the Respondents and, therefore, it amounted to disclosure of information to third parties other than the Claimant.
49. Further, the evidence of the Respondents herein was marred with contradictions. The 1st Respondent testified that the Claimant was standing outside the door with a sword whereas the 2nd Respondent testified that the Claimant was holding a stick. A sword and a stick are two different things. In fact, if the Claimant was indeed holding a sword, one is left to wonder why the 1st Respondent left the 2nd Respondent at the mercy of the Claimant wielding such a dangerous weapon.
50. The Respondents have submitted that the Claimant has not proved his claim beyond reasonable doubt and as such the same should be dismissed. The Claimant has referred the Tribunal to the case of Hornal –vs- Neuberger Products Limited 1 QB 247 to the effect that in civil proceedings, the standard of proof is that of the balance of probabilities. This Tribunal is established under section 25 of HAPCA and the jurisdiction of the Tribunal is provided under section 26, which, according to section 26(2), does not extend to criminal matters. It, therefore, follows that the matters before the Tribunal are civil in nature. The issue as to what standard is applicable in civil matters to be applied in civil matters is an issue that our Courts have dealt with it time without number and in our opinion we need no refugee in foreign decisions. In the case of John Kanyungu Njogu –vs- Daniel Kimani Mwangi  eKLR, the Court of Appeal held that in civil matters, the Plaintiff had the burden of proving her case on a balance of probabilities. When the Court is faced with two probabilities, it can only decide the case on a balance of probability if there is evidence to say that one probability was more probable than the other. It is the finding that the test to be applied in a matter before the Tribunal is one of a balance of probabilities and not beyond reasonable doubt, which standard applies to criminal cases that this Tribunal has no jurisdiction over.
51. The Claimant submitted that as a result of the disclosure of his status by the Respondents, the Claimant testified that as a result of the Respondents’ action, he got depressed and had to seek counselling at Jaramogi Oginga Odinga Hospital where he was treated. The Claimant produced the note from one P.O, a clinical officer from the said hospital confirming that he indeed attended a psychological counselling session. The objectives of the Tribunal are set out under section 3 of HAPCA. Section 3(d) provides that HAPCA ‘endeavors to positively address and seek to eradicate conditions that aggravate the spread of HIV infection.’ Research has shown that disclosure of one’s status whether actual or perceived may lead to depression amongst other effects.
52. In the instant case, the Claimant has proved that as a result of the disclosure of his HIV status, he has suffered depression and had to undergo psychological counselling. If such issues are not attended to, it will have a negative impact on the fight against HIV/AIDS in the country. Section 27 (7) (b) of HAPCA empowers this Tribunal to make any order as may be appropriate in the circumstance.
53. The Claimant has submitted that he be awarded a sum of Kshs. 2,500,000/= as compensation and relies on the cases of V.M.K –vs- CUEA  eKLR and M.K –vs- SDA Health Services and another  eKLR. The Respondents have submitted that the authorities relied upon by the Claimant are distinguishable with the present facts for the reason that in those authorities, the Claimants were tested and their HIV status where known but in the instant case there was no status to disclose in the first place.
54. This Tribunal in the case of S.N.W –vs- A.G  eKLR awarded the Claimant Kshs. 250,000/= as general damages where the Claimant’s status was disclosed without her consent and in the case of R.N –vs- R.O.O  eKLR the Claimant was awarded Kshs. 300,000/= for psychological and emotional suffering. Taking into consideration the circumstances of this case and taking into regard to the previous decisions of this Tribunal referred to above, we award a sum of Ksh. 350,000/= as general damages for emotional and psychological suffering occasioned by the disclosure of the Claimant’s status without his consent.
55. In the premise, we hereby grant the following orders;
1) A declaration that the Respondents disclosed the HIV status of the Claimant without his consent contrary to the provision of section 22 of the HIV and AIDS Prevention and Control Act, 2006.
2) The Claimant is awarded Kshs. 350,000/= as general damages against the Respondents, jointly and severally, for emotional and psychological suffering as a result of the disclosure of his HIV status without the Claimant’s consent.
3) That the sum of Kshs. 350,000/= shall accrue interest at Court rate from the date of this Judgement until payment in full.
4) Costs of the suit are awarded to the Claimant.
56. It is so ordered.
Dated and signed in Nairobi this 4th day of MAY, 2020
Delivered at Nairobi this 4th day of MAY, 2020
Helene Namisi (Chairperson) ………………..…………….
Melissa Ng’ania ………………………….......
Justus T. Somoire ………………………………
Dr. Maryanne Ndonga ………………………............
Tusmo Jama ………………………………..
Dorothy Kimeng’ech ………………………………..
Abdullahi Diriye ……………………………….