Woman loses Sh1million case on HIV status disclosure for lack of witnesses
The claimant sough to be paid Sh500,000 in damages by each respondent for disclosing her HIV status to third parties without her consent.
What you need to know:
- The complainant tested positive for the HIV virus and shared the result of the test with her frinends.
- Woman claims she was betrayed her friend when she needed a a true friend to help her progress mentally.
Picture this: you fall out with your spouse, move into your friend’s house, and while there, you test positive for the HIV virus.
Depression sets in, and you share the result of the HIV test with your friend for moral support, but within weeks, the entire neighbourhood and even business customers know about it.
MA found herself in a similar situation after falling out with her husband in 2022.
To her, her friends FOO and PAO, who are a couple, betrayed her when she not only needed a shoulder to lean on but also a true friend to help her progress mentally.
MA, FOO, and PAO were good friends, so in November 2022, when MA fell out with her husband, she moved into the couple’s house with her children.
While staying at the couple’s house, she tested positive for the HIV virus.
She was depressed and shared the result of the HIV test with the couple, who appeared supportive.
Three weeks later, the couple traveled upcountry for the Christmas festivities, leaving MA and her children in the house and cutting off all communication.
Feeling abandoned, MA decided to take her children and leave the couple’s house.
PAO then allegedly called MA’s sister after she left their home and disclosed that MA had tested HIV positive.
Before long, MA allegedly received several insulting messages from FOO revealing her HIV status.
Angered by the insults and the disclosure of her HIV status, MA approached the HIV and AIDS Tribunal and sued the couple for damages.
In this case, MA accused the couple of disclosing her HIV status to third parties without her consent.
As a result of this disclosure, MA lamented that her neighbors and business customers stigmatised her and her children.
“I seek a declaration that the respondents’ acts of disclosing my HIV status were in violation of my right to privacy and confidentiality,” she said.
She also requested to be paid Sh500,000 in damages by each respondent for the harm suffered due to their actions.
The woman told the tribunal that she had received insulting messages from FOO.
One of the messages she mentioned read, “Mwenye alikupea ukimwi hayuko hapa. Kwanza mpeleke polisi ashikwe sio mimi. Ako Dandora” (The one who infected you with HIV is not here. Take him to the police to be arrested, not me. He is in Dandora).
“Najua mpaka mahali unaishi na kazi unafanya. Umepeleka Watoto ushago ukuje uspread ukimwi kwa bwana za watu” (I know where you live and what you are doing. You have sent your children to the village to give you space to infect other people’s husbands).
She claimed that these messages would arrive while she was with other people, thereby disclosing her HIV status to third parties, which is contrary to section 22 of the HIV Prevention and Control Act.
MA further informed the tribunal that PAO revealed her HIV status to her best friend, who subsequently shared this information with the neighbours and business customers, leading to stigmatisation and discrimination.
“I was forced to move my business and children to a different area,” she told the tribunal.
MA served FOO and PAO with her court papers, but they neither filed a defense nor appeared in the case.
In its opening remarks, the tribunal chaired by Carolyne Mboku stated that although the claim is unopposed, MA has pleaded for damages; therefore, she is expected to prove the allegations on a balance of probabilities.
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthfully without interrogation for the reason only that it is uncontroverted. A plaintiff must prove his case too upon a balance of probability whether the evidence is challenged or not,” said the tribunal whose members were Nelson Osiemo, Jane Ngoiri and Dr Irene Mukui.
In determining this case, the tribunal considered whether FOO and PAO unlawfully disclosed MA’s HIV status to third parties and whether she (MA) suffered stigmatization or discrimination as a result of the couple’s statements.
The final question the tribunal posed was whether MA is entitled to the reliefs sought, including payment of damages.
Section 22 (1) (a) of the HIV and Aids Act provides that no person shall disclose any information concerning the result of a HIV test or any related assessments to any other person except with the written consent of that person.
The tribunal observed that many people have committed suicide in Kenya on learning that they have tested HIV positive due to the socio-cultural implications of HIV.
“Most people who test positive only share their results with close friends and loved ones for support. Even so, one’s HIV status should not be shared with third parties without their consent,” said the tribunal.
It further noted that for one to prove disclosure, he or she must show that the disclosure was made to a third party without the claimant’s consent and tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the disclosure in a platform or a forum that could be easily accessed by a third party.
The tribunal maintains that a claimant must call a witness to confirm that indeed, there was disclosure of their status to third parties, including the witness.
“This witness is a crucial key to the puzzle and assists the Tribunal in piecing together a claimant’s averments and painting the picture of the circumstances under which the disclosure occurred. The witness’s account complements and corroborates that of the claimant,” said the tribunal.
MA had testified that the couple did not seem to have an issue with her HIV status when she disclosed it to them but they went upcountry and stopped communicating with her.
She therefore left their house and lost her phone during that period.
However, the tribunal noted that MA did not call her sister, her friend or third parties to whom the couple disclosed her HIV status to.
Further, the tribunal observed that MA did not produce an extract of the short messages (sms) where FOO alluded to her HIV status as quoted in the court documents.
Read:
“In any event, the SMS, if any, were meant to be private chats between the FOO and MA as the messages were sent directly from FOO’s phone to hers. Private messages sent directly to a claimant about her HIV status are not disclosures to third parties,” said the tribunal, adding that this claim therefore fails.
MA had testified that once the neighbours knew of her status, her friends refused to talk to and associate with her for fear of being infected. She therefore lost business and had to remove her children from the school they used to go to due to the high level of stigma.
But the tribunal noted that MA failed to lead evidence to prove that she suffered stigmatization, discrimination and psychological torture as a result of the couple’s disclosing her HIV status to third parties.
It further argued that the claim cannot stand because it has not been proved that there was disclosure of the claimant’s HIV Status to third parties by the Respondents.
“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 standards. This cause is, therefore, dismissed,” said the tribunal.
However, the Ms Mboku-led tribunal acknowledged that stigma and discrimination remain a menace in the country, and most individuals seldom receive adequate support from family and friends upon being diagnosed with HIV.
“There is still a need for massive public awareness on the causes, modes of transmission and prevention of HIV and HIV care and treatment,” they said.
Failure to call witnesses and produce text messages to support her case has caused MA to squander her chances of receiving the Sh1 million from her friends, who she claimed betrayed her.
