EOD v OC & another [2020] eKLR Case Summary

Court
HIV and Aids Tribunal at Nairobi
Category
Civil
Judge(s)
Helene Namisi (Chairperson), Melissa Ng’ania, Justus T. Somoire, Dr. Maryanne Ndonga, Tusmo Jama, Dorothy Kimeng’ech, Abdullahi Diriye
Judgment Date
May 04, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the EOD v OC & another [2020] eKLR case summary, analyzing key legal principles and implications. Gain insights into this landmark judgment and its impact on future cases.

Case Brief: EOD v OC & another [2020] eKLR

1. Case Information:
- Name of the Case: EOD v. OC and SAO
- Case Number: H.A.T. CAUSE NO. 27 OF 2018
- Court: HIV & AIDS Tribunal at Nairobi
- Date Delivered: May 4, 2020
- Category of Law: Civil
- Judge(s): Helene Namisi (Chairperson), Melissa Ng’ania, Justus T. Somoire, Dr. Maryanne Ndonga, Tusmo Jama, Dorothy Kimeng’ech, Abdullahi Diriye
- Country: Kenya

2. Questions Presented:
The court must resolve the following legal issues:
1. Whether the Respondents are guilty of disclosing the Claimant’s HIV status contrary to Section 22 of the HIV and AIDS Prevention and Control Act (HAPCA).
2. Whether the Claimant is entitled to an award of damages.
3. Who is entitled to the costs of the suit.

3. Facts of the Case:
The Claimant, EOD, resides in Kisumu County and alleges that on November 5, 2018, the 1st Respondent (OC) and the 2nd Respondent (SAO), his landlady, confronted him regarding rent arrears, leading to a public altercation. During this confrontation, the Respondents allegedly hurled insults at the Claimant, including references to his HIV status, which he had not consented to disclose. The Claimant claims to have suffered psychological distress, necessitating counseling. The Respondents admitted to being neighbors but denied the allegations and filed a preliminary objection regarding the Tribunal's jurisdiction, which was later withdrawn.

4. Procedural History:
The Claimant filed a Statement of Claim on December 18, 2018, seeking damages for emotional suffering and an apology from the Respondents. The Respondents responded on August 22, 2019, denying the claims. A preliminary objection regarding jurisdiction was raised but subsequently withdrawn. The Tribunal conducted a full hearing, during which testimonies were presented from both parties and their witnesses.

5. Analysis:
Rules:
The relevant statute considered was Section 22 of the HAPCA, which prohibits the disclosure of an individual's HIV status without their consent.

Case Law:
The Tribunal referenced previous cases, including MCM v. BOO (2019) and BNN v. CMM (2019), establishing that for a claim of unauthorized disclosure to succeed, the Claimant must provide evidence of disclosure to a third party.

Application:
The Tribunal found that the Claimant successfully demonstrated that the Respondents disclosed his HIV status during the public confrontation, which was witnessed by others, including CW2. The Respondents' denial was deemed insufficient without corroborative evidence. The Tribunal held that the Respondents' actions constituted a violation of the Claimant's rights under HAPCA, leading to emotional and psychological harm, thus warranting damages.

6. Conclusion:
The Tribunal ruled in favor of the Claimant, declaring that the Respondents had disclosed his HIV status without consent, contrary to Section 22 of HAPCA. The Claimant was awarded Kshs. 350,000 as general damages for emotional and psychological suffering, with costs awarded to the Claimant.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The Tribunal found the Respondents liable for unauthorized disclosure of the Claimant's HIV status, resulting in emotional harm. The ruling emphasizes the importance of confidentiality regarding HIV status, reflecting broader implications for the rights of individuals living with HIV in Kenya. The award of damages serves to uphold these rights and deter similar violations in the future.

Citations:
- HIV and AIDS Prevention and Control Act (HAPCA)
- MCM v. BOO [2019] eKLR
- BNN v. CMM [2019] eKLR
- Hornal v. Neuberger Products Limited [1957] 1 QB 247
- John Kanyungu Njogu v. Daniel Kimani Mwangi [2000] eKLR
- S.N.W v. A.G [2019] eKLR
- R.N v. R.O.O [2019] eKLR
- V.M.K v. CUEA [2013] eKLR
- M.K v. SDA Health Services and another [2016] eKLR

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