7.PW1, E.W.K was the Plaintiff herein. She adopted her witness statement dated 21/11/2011 as her evidence in chief and adduced her List of Documents in support thereof. It was her testimony that on 13/7/2004, Mr. Mathew Kongo, an agent of the Defendant, took her to the Third Party herein for medical examination. She did not know that she was to undergo a HIV test. After being tested, she was advised that the results would be forwarded to the Defendant.
8.PW1 testified that after a while, the Defendant sent her a letter dated 5/8/2004 informing her that they were unable to offer her a Life Insurance Policy and that she should consult her personal medical doctor for details. She stated that she went to her doctor and had various tests conducted on her, all of which turned negative. Thereafter, she went to the Defendant's offices and asked the agents to explain why they had refused to insure her but they instructed her to write a letter requesting that the results be released to her doctor. She wrote the said letter on 6/9/2004.
9.The Plaintiff further averred that she learned that the results had been sent to her personal doctor, Kinyua, at Zimmerman Clinic prior to writing the letter and that the doctor had returned them to Defendant because he was unable to disclose them to her. She went back to the Defendant's offices and was advised to go back to the Third Party herein.Further, PW1 asserted that on 13/9/2004 upon arrival at the Third Party's offices, she paid Kshs. 700/- for consultation and doctor Ruga told her that she was HIV Positive, without any prior counselling. The revelation traumatized her and all she could think about was how it was going to impact her marriage and the health of her 5-month old baby, whom the doctor advised her to bring to him to commence medication. It was PW1’s testimony that 14/9/04, she returned to Dr. Ruga and requested him to repeat the HIV test, for which she paid Kshs. 800/-. The second test came out negative but the Third Party never apologized or refunded her money.
10.The Plaintiff testified that she went back to the Defendant's offices and was sent to another doctor to carry out a HIV test which also turned out to be negative. She then requested the Defendant to release to her the initial false positive results but the Defendant's agents refused to release them to her and instead referred her to their legal adviser who offered to pay her Kshs. 1,000,000/- which she declined to accept. Subsequently, on 23/9/2004, the Defendant purported to offer her the Life Insurance Cover but she refused to accept.
11.On cross-examination, the Plaintiff reiterated that she did not know that she was being tested for HIV and Jubilee did not tell what tests were going to be done. She asserted that she was not the one who filled the policy application form but admitted that she signed it. She averred that she could not recall whether she was given a list of doctors to choose from. Further, the Plaintiff admitted that she signed the Consent form that gave approval for medical tests to be done and that she is the one who authorized Jubilee to give the results to her doctor Kinyua. She also averred that she sued Jubilee because she did not know Dr. Ruga.
12.PW1 further stated that she knew her HIV status was negative as she had been tested at Nazareth hospital when pregnant. She also averred that the doctor apologized for the first test but the damage had already been done. She maintained that Dr. Ruga did not counsel her or explain to her why the two results were different. In her view, a second test ought to have been done immediately after the first one. She asserted that since she was married, it was very difficult to tell her husband that she was HIV positive but she eventually told him about the false-positive test result. PW1 further confirmed that Dr. Ruga was not involved in the transmission of the results to third parties.
13.In re-examination, the Plaintiff stated that Dr. Ruga was chosen by Jubilee and its agent took her to him. She was adamant that the Defendant did not explain to her the tests she was to undergo and neither did Dr. Ruga.
14.The Defendant’s witness, DW1, Kigunda Kagwana, a Business Manager at the Defendant Company adopted his statement dated 5/11/2021 and adduced the Defendant’s List of Documents dated 2/10/2008 and Supplementary List of Documents dated 12/3/2013.
15.It was his testimony that on 11/6/2004, the Plaintiff applied for a Career Life Policy for the sum of Kshs. 300,000/- and was issued with an application form which she signed. Based on the sum assured by the Plaintiff, the Defendant requested the Plaintiff to undergo various medical tests including a HIV test. That prior to the tests, the Plaintiff was required to read the Identity and Consent form (page 2 of Defendant’s List of Documents) and thereafter fill two forms namely an Extract of Identity Card Details form (page 3) and a Declaration of Informed Consent to HIV Test form (page 5). That it was also standard procedure that the person drawing the blood sample executes a Declaration Form (page 4) confirming that the informed consent of the patient had been obtained prior to testing.
16.Further, DW1 averred that out of the doctors in the Defendant's panel, the Plaintiff settled on Dr. Maina Ruga for purposes of the HIV test which was conducted on 13/7/2004. Thereafter, the Defendant received the laboratory report indicating that the Plaintiff has tested Positive for HIV, under confidential cover. According to DW1, at the time, a HIV positive person could not be covered under the Career Life Policy hence the reason why the Defendant wrote the letter of 5/8/2004 declining the Plaintiff's proposal and processed a refund of the premium deposit.
17.It was DW1’s further assertion that the Plaintiff wrote to the Defendant on 6/9/2004 asking it to forward the medical report to Dr. Kinyua of Zimmerman Clinic through an agent of Jubilee, one Mathew Kongo. He stated that the medical report was forwarded to the said Dr. Kinyua vide a confidential letter dated 8/9/2004 and copied to the Plaintiff. However, Dr. Kinyua wrote to the Defendant on 8/9/2004 indicating that he was unable to disclose the medical results to the Plaintiff. That as such, on 9/9/2004, the Defendant forwarded the results back to Dr. Ruga to disclose them to the Plaintiff. Thereafter, on 20/9/2004, Dr. Ruga wrote to the Defendant indicating that he had undertaken fresh counselling and fresh HIV testing on the Plaintiff and the results turned out negative. That in light of this new development, the Defendant made an acceptance letter dated 23/9/2004 to the Plaintiff but she refused to take up the policy.
18.In addition, DW1 testified that on 12/10/2004, one Mr. Perminus Gibson presented a letter dated 11/10/2004 purporting to be from the Plaintiff seeking to collect her initial medical report. However, the Defendant refused to provide the report as it could not ascertain the identity of the said Perminus Gibson who claimed to be Dr. Kinyua but failed to produce his National ID. As such, on 21/10/2004, the Defendant wrote to the Plaintiff and referred her to Dr. Ruga for collection of her initial results. DW1 asserted that the Defendant did not disclose the Plaintiff's medical results to anybody else other than Dr. Kinyua, at the Plaintiff's request.
19.On cross-examination, DW1 admitted that the HIV test was not specified in the consent form. He claimed that it is the doctor who specifies the test to be done. He admitted that the Defendant advised the Plaintiff to see her personal doctor but did not indicate the reason. He stated that following the Plaintiff’s written request, they released the results through agent Kogo to deliver to her doctor. He stated that they did not request a repeat test but when Dr. Ruga sent them the second medical report, they offered a letter of acceptance to the Plaintiff based on that. Further, DW1 confirmed that the Defendant only paid Kshs. 790/- for the Plaintiff’s HIV test.
20.The Third Party herein Dr. Maina Ruga, a general medical practitioner based in Nairobi adopted his Witness Statement dated 13/3/2013 as his evidence in chief. He stated that the Plaintiff was sent to his clinic on 13/7/2004 by the Defendant. He averred that he did not meet the Plaintiff on that day but she was directed to the laboratory where her blood sample was taken. He testified that the initial results from the laboratory showed that the Plaintiff was HIV Positive and the results were released to the Defendant as per the instructions of the Defendant and with the Consent of the Plaintiff. It was his testimony that he however met the Plaintiff on her second visit to the clinic on 13/9/2004. That he personally counselled the Plaintiff on the different result, offered possible reasons for the same and offered an apology for the previous false HIV-positive results.
21.The Third Party testified that he then immediately called the Underwriting Department of the Defendant to explain the error in the initial laboratory test results. In his view, the error in the initial test results may have resulted from a defect in the test kit that was used at the laboratory which can only be attributed to the manufacturer. It was also his view that the false HIV test result may also be caused by a patient's health condition and/or other reasons at the material time such as:a.Whole blood or plasma containing other anticoagulants other than EDTA.b.Levels of antibodies in Plaintiff and of other viruses other than HIV 1 and II.c.Disease state of the Plaintiff at time of test and other potentially interfering substances in the blood.d.Protein cross reaction due to the congregation of antibodies at one place.e.Causes of unknown aetiology reacting in a positive manner, but the origin of the cause at that time is unknown.
22.The doctor noted that medical laboratory tests for HIV are not full proof and that is why repeat tests are normally advised. Further, he stated that on both occasions, the test results from his laboratory were sent to the Defendant only and were concealed with a mark of the requisite confidentiality, with the Plaintiff’s knowledge and consent. He maintained that the sum of Kshs. 770/- paid by the Defendant for the test only covered the screening test and/or HIV (eliza) and not foolproof tests.
23.On cross-examination, Dr. Ruga stated that he was appointed to the Defendant’s panel in 1999 and the Defendant paid for services referred to him. He averred that on 13/7/2004, his lab technician, Ann Njoroge, did the test and counselled the Plaintiff accordingly. He asserted that the Plaintiff signed a consent for the test to be done. Lastly, the doctor noted that Jubilee received the first Report on 21/7/2004.
Analysis and Determination
24.The court has perused and carefully considered the parties' pleadings, documents, evidence adduced as well as the submissions and numerous authorities cited. The following are the issues that fall for determination :-i.Whether the Plaintiff’s informed consent was obtained prior to HIV testingii.Whether the Plaintiff underwent post-test counselling before being told that she was HIV positive?iii.Whether the Third Party was negligent in the manner in which he conducted the HIV testing and informed the Plaintiff that she was HIV positive when she was notiv.Is the Defendant vicariously liable for the negligent acts of the Third Party?v.Whether the Plaintiff has made out a case for defamation against the Defendantvi.Whether the Plaintiff is entitled to the Reliefs sought.
Whether the Plaintiff’s informed consent was obtained prior to HIV testing
25.The Plaintiff claimed that she was not informed that she was to undertake a HIV test. However, during cross-examination, she admitted that she signed the ‘Declaration of Informed Consent to HIV Test’ (page 5 of Defendant’s List of Documents). The Defendant also adduced a document titled ‘Declaration by Person Drawing the Sample’ (page 4 of Defendant’s List of Documents) executed by one Anne N. Njoroge and confirming that the informed consent of a patient of Identity Card Number 14608642 who was the Plaintiff herein, was obtained prior to testing for HIV antibodies. In the premises, the court finds that there is no evidence that the Plaintiff was subjected to involuntary HIV testing. Her consent was duly obtained prior to the exercise.
Whether the Plaintiff underwent post-test counselling before being told that she was HIV positive
26.The Plaintiff pleaded and testified that the Third Party did not counsel her prior to informing her about the initial HIV false-positive result. On the other hand, the doctor maintains that he personally saw the Plaintiff on her second visit to the clinic and counselled her accordingly. The court notes that the Defendant adduced a letter dated 20/9/2004 from the Third Party indicating that he counselled the Plaintiff on 13/9/2004 and took another blood sample, which turned negative (page 12 of the Defendant’s List of Documents). Notably, the Plaintiff did not controvert the contents of this letter hence the court can only deduce that the Plaintiff was indeed counselled by the Third Party on 13/9/2004 when she went for her initial results and decided to undertake a confirmatory/ repeat test on that basis.
Whether the Third Party was negligent in the manner in which he conducted the initial HIV testing
27.It is not in contention that the Plaintiff was a victim of a false-positive HIV result. The Plaintiff accused the Third Party of conducting the HIV Antibodies screening test negligently and unskillfully. Her claim is anchored on the contention that a confirmatory test was not done soon after the false-positive result to avoid a misdiagnosis.
28.Negligence was defined in the case of Blyth vs. Birmingham Water Works Co. 11 Ex. 784 as, “The omission to do something which a reasonable man would do; or doing something which a reasonable man would not do.”
29.In Lucy Njeri Ngugi & another v Avenue Healthcare Ltd & 2 others  eKLR, Njuguna J. held that:
30.In the case of Jimmy Paul Semenye v Aga Khan Hospital & 2 Others  eKLR, the court stated that:
31.It is common ground that the Third Party performed a HIV Antibodies Screening Test using the ELISA method. In the court’s view, although the Third Party was nominated to the conduct the HIV test on the Plaintiff without his prior approval, once he agreed to test her at his clinic, a duty of care arose on his and his staff part to the Plaintiff herein. That duty required the Third Party to ensure that his laboratory technician who attended the Plaintiff possessed the knowledge, skills and expertise to conduct the test and that the same is done in a proper and reasonable manner.
32.The question therefore would be whether a reasonable doctor would have immediately carried out a confirmatory test to establish whether the Plaintiff was indeed HIV positive before transmitting the results to the Defendant. In the court’s considered view, the answer to this question is in the affirmative. The Stanford Medicine Healthcare in their online article on Enzyme-Linked Immunosorbent Assay (ELISA) states that a positive (reactive) ELISA test must be used with a follow-up (confirmatory) test, such as the Western blot test, to make a positive diagnosis. The Third Party himself testified and indeed confirmed on cross examination that medical laboratory tests for HIV are not foolproof hence repeat tests are normally advised.
33.The Third Party, being the one possessed of the knowledge and skills of HIV testing in his capacity as a doctor, was obligated to inform the Defendant that a single HIV Positive test result was insufficient under the circumstances because of the possibility of erroneous results. It was incumbent upon the doctor to advise the Defendant to withhold any action based on the initial positive results and to allow the Plaintiff to undertake a confirmatory test so as to establish her true HIV status. Rather, the Third Party simply transmitted the false results to the Defendant and kept mum until the Plaintiff took herself back to his clinic and requested for a repeat test upon being informed that she was HIV positive.
34.In the premises, the court finds that the Third Party breached the duty of care which a prudent doctor possessed of experience and special knowledge and skill would have been expected to exercise keeping in mind the best interest of the patient and the impact that false HIV-positive results can have on someone. Suffice it to note, there is no doubt that as a result of the wrong diagnosis, the Plaintiff suffered great mental anguish and emotional trauma. The Plaintiff has therefore proven negligence on the part of the Third Party.
35.Is the Defendant vicariously liable for the negligent acts of the Third Party? In this court’s considered view, indeed it is as it nominated, authorised and paid the Third Party to conduct the initial HIV test that produced erroneous results, for its own use.
Whether the Plaintiff has made out a case for defamation against the Defendant
36.According to Black’s Law Dictionary, 9th Edition at page 479 defamation is defined as:
37.Patrick O'Callaghan in The Common Law Series: The Law of Tort at paragraph 25.1 stated that the law of defamation is primarily concerned with the protection of a person’s reputation and not his or her character.
38.The elements of defamation were outlined by the Court of Appeal in case of Selina Patani & another v Dhiranji V. Patani  eKLR and Raphael Lukale v Elizabeth Mayabi & another  eKLR as follows:i.The statement must be defamatory.ii.The statement must refer to the plaintiff.iii.The statement must be published by the defendant.iv.The statement must be false.
39.In the instant case, the Plaintiff claims that the Defendant defamed her by publishing the initial erroneous HIV positive results to a third party. There is no doubt that such a publication would be defamatory as it can lower the Plaintiff’s reputation in the estimation of right thinking members of society generally or expose her to public hatred, contempt or ridicule or shunning. It is also crystal clear that the said results which appear at page 6 of the Defendants List of Documents refer to the Plaintiff by her three names. Further, there is no contention that the statement was false as it was later discovered to be erroneous and when a confirmatory test revealed that the Plaintiff is HIV negative.
40.The issue in contention is whether the Plaintiff proved that the Defendant published the erroneous results to third parties. The Court of Appeal in the case of Wycliffe A. Swanya v Toyota East Africa Ltd & Another civil Appeal 70 of 2008  eKLR stated that publication in the sense of defamation means that the defamatory statement was communicated to someone other than the person defamed. In this case, the Plaintiff claims that she discovered that the Defendant forwarded the erroneous results to a third party through a letter dated 5/8/2004. She also claims that the results were initially sent to her personal doctor without her approval.
41.The court has carefully examined the evidence on record. Foremost, the court notes that the Plaintiff’s allegations are not backed by any evidence. She did not tell the court how she came to learn that her doctor had been sent the erroneous results without her approval and neither did she call the said doctor to testify in court and corroborate that assertion. Instead, the evidence on record corroborates DW1 testimony that the results were released to the Plaintiff’s doctor with her full consent.
42.Indeed, on 6/9/2004, the Plaintiff wrote a note to the Defendant requesting that her medical report be forwarded to Dr. Kinyua of Zimmerman Clinic through Mathew Kongo. (See page 9 of Defendant’s list of Documents). Subsequently, on 8/9/2004, the Defendant forwarded the Plaintiff’s medical report to her doctor as instructed. (See page 10 of Defendant’s list of Documents). On the same day, the Plaintiff’s doctor wrote back to the Defendant confirming receipt of the report and informed the Defendant that he could not divulge the information to the Plaintiff.(See page 11 of Defendant’s list of Documents). On that basis, through a letter dated 9/9/2004, the Defendant returned the Plaintiff’s medical report a letter to the Third Party so he could get in touch with her.
43.Consequently, the court finds that the Plaintiff did not prove that the Defendant published and/or communicated the erroneous results to any third party without her consent. The tort of defamation has therefore not been proved against the Defendant at all.
Whether the Plaintiff is entitled to the Reliefs sought. Special damages in the sum of Kshs. 2,200/-.
44.Special damages must be specifically pleaded and strictly proved. The Plaintiff only adduced two receipts from Exchange Laboratory Services for a total sum of Kshs. 1,500/-. That is the only amount recoverable as special damages.
General damages for pain, suffering and loss of amenities.
45.There is no doubt that the Plaintiff suffered great mental anguish and emotional trauma from the time she learnt about the erroneous results on 13/9/2004 up to 14/9/2004 when the repeat test was conducted. The Plaintiff has urged that she be awarded general damages of Kshs. 7,000,000/- while the Defendant urged that an award of Kshs. 1,000,000/- would suffice in this regard. In M K v Seventh Day Adventist Health Services & Maragia Omwega  eKLR, Sergon J. awarded Kshs. 6,000,000/- to a Plaintiff who was misdiagnosed with HIV and was traumatized for eight (8) months before a repeat test revealed that he was HIV negative. In Lucy Njeri Ngugi & another v Avenue Healthcare Ltd & 2 others  eKLR, the Court awarded the plaintiff general damages of Kshs. 600,000 for pain and suffering occasioned by the side effects of malaria misdiagnosis. In the instant case, taking into account the fact that the plaintiff suffered mental trauma and anguish for just a day, the court will award general damages of Kshs. 600,000/-.
General damages for defamation
46.There is no basis for this award as defamation was not proved.
47.Exemplary damages also known as punitive damages are awarded to punish and deter. The Court of Appeal Godfrey Julius Ndumba Mbogori & another V. Nairobi City County  eKLR stated that:
48.In the present case, the court has not found any basis for awarding exemplary damages.