JM v HM [2015] KEHAT 7 (KLR)

JM v HM (Tribunal Case 066 of 2014) [2015] KEHAT 7 (KLR) (Family) (18 December 2015) (Judgment)

Neutral citation: [2015] KEHAT 7 (KLR)

Republic of Kenya

In the HIV and AIDS Tribunal

Family

Tribunal Case 066 of 2014

JO Arwa, Chair, A Siparo, Vice Chair, M Deche, MN Kullow, S Bosire, J Muriuki & J Kyambi, Members

December 18, 2015

Between

JM

Claimant

and

HM

Respondent

Judgment

Constitutional Law - fundamental rights and freedoms – discrimination -whether the respondent’s acts and behavior amounted to discrimination against the claimant based on her HIV status – whether there was breach of confidentiality from the unlawful disclosure of the claimant’s HIV status by the respondent –whether the claim was merited.Jurisdiction - jurisdiction of the HIV and AIDS Tribunal - whether the tribunal could infer jurisdiction to determine matters of discrimination within the home or family setting – whether the HIV and AIDS Prevention and Control Act had comprehensively dealt with all forms of discrimination - HIV and AIDS Prevention and Control Act, 2006, section 3; HIV and AIDS Prevention and Control Act Part VIII. Words and phrases: 1. Discrimination has commonly been defined as “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group, not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of the society.” (Andrews vs Law Society of British Columbia [1989] 1 SCR 143).

Brief Facts: 2. The claimant and the respondent had been married for the last 12 years. In 2010, the claimant tested HIV positive and on informing the respondent of her status, the respondent was at first supportive but later on changed and allegedly started discriminating against her based on HIV status by, inter alia, refusing to talk to the claimant, refusing to eat together with the claimant or share utensils with her and moving out of their matrimonial home without the claimant’s knowledge. Thus the claimant sought for a declaration that the actions of the respondent were unlawful, unfair and prejudicial to the claimant. The claimant also sought exemplary damages and costs of the suit. Conversely, the respondent denied discriminating against the claimant based on her HIV status.

3. He contended that the claimant was cruel and disrespectful to him and listed particulars of cruelty, inter alia, that due to the respondent’s work engagement he would travel for weeks and after long safaris the claimant was not there to welcome him and that whenever the claimant took her leave from work, she would disappear and never inform the respondent of her whereabouts and whenever the respondent enquired he was told that she was an adult.

4. The Tribunal ordered the parties to file their submissions and fixed the matter for mention for purposes of highlighting the submissions. On the mention date, there was no appearance by the respondent or his Counsel, neither were there submissions on record. The Tribunal fixed mention dates on three more occasions for the respondent to file his submission but he did not comply accordingly.

5. The main issues for determination by the tribunal were:i.Whether the respondent’s acts and behavior amounted to discrimination against the claimant based on her HIV status;ii.Whether there was breach of confidentiality from the unlawful disclosure of the claimant’s HIV status by the respondent;iii.What damages, if any, were payable to the claimant in the circumstances and what was the appropriate order as to costs?

6. Held:1. Part VIII of the HIV and AIDS Prevention and Control Act, 2006 dealt with the issue of discrimination, specifically addressing discrimination at the workplace, schools, with regard to travel and habitation, in public service, in respect of access to credit and insurance services, in health institutions, and with regard to burial. It did not mention discrimination within the home or in the marriage setting, which was the gist of the instant claim. However, section 3 of the HIV and AIDS Prevention and Control Act inferred the Tribunal’s jurisdiction to deal with discrimination within the home by outlawing discrimination in all its forms and subtleties against persons with or persons perceived or suspected of having HIV and AIDS.2. The Tribunal took judicial notice of the fact that a lot of abuse, especially gender based abuse took place within the home. Some of the gender based violence was HIV related. With prevalence of discrimination within the home, people did not feel safe enough to get tested and know their HIV status and be at liberty to disclose the same, which impacted negatively on the fight against the spread of HIV. It was therefore useful for Parliament to specifically expand the areas in Part VIII of the HIV and AIDS Prevention and Control Act to include the home and family setting.3. Regarding the respondent’s conduct towards the claimant, the alleged mistreatment of the claimant did not start immediately upon learning of her HIV status. If the respondent’s reason for changing his behavior towards the claimant had anything to do with the claimant’s HIV status, then the reaction would have been immediate rather than delayed. The basis of the behavior and attitude between the claimant and the respondent was a series of long standing and deep seated matrimonial issues unrelated to her HIV status. Such matters would be best addressed in a matrimonial cause rather than in the instant forum. Thus, the respondent had not discriminated against the claimant on the basis of her HIV status.4. The above holding notwithstanding, that did not mean that the maltreatment of family members by spouses and extended family was not probable. Such existed and took the form of desertion, denial of conjugal rights, and economic sabotage especially where there was discordance. Where there was sufficient evidence of its occurrence, the Tribunal would not hesitate to exercise its jurisdiction to remedy such a wrong.5. Under section 22(1)(a) of the HIV and AIDS Prevention and Control Act, one of the objects of the Act was to extend to every person suspected or known to be infected with HIV and AIDS full protection of their human rights and civil liberties by guaranteeing the right to privacy of the individual. Unlawful disclosure of one’s HIV status violated the right to privacy as it opened doors to invasion of one’s autonomy of their personal space. The respondent’s discussion and subsequent disclosure of the claimant’s HIV status with his brother was uncalled for and unlawful. Just like discrimination, breach of confidentiality through unlawful disclosure created stigma which had a negative impact on the fight against HIV and AIDS.6. Although the claimant did not include an indication on the amount of damages claimed, the Tribunal considered past awards by the Tribunal (B. O v Meridian Equator Hospital, Claim No 005 of 2013) and awarded the claimant a sum of Kshs.150,000/= for unlawful disclosure.

7. Claimant awarded Kshs. 150,000/= for unlawful disclosure and costs of the suit.

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF DECEMBER, 2015. ……………………………J. ARWACHAIRMAN……………………………A. SIPAROVICE CHAIR…………………………M. DECHEMEMBER………………………M.N. KULLOWMEMBER…………………………S. BOSIREDR-MEMBER…………………J. MURIUKIMEMBER…………………………J. KYAMBIPROF.-MEMBER