GSN v Nairobi Hospital & 2 others [2020] eKLR

Key Facts

Issues

• The court ruled the petitioner is entitled to general damages (Kshs. 2,000,000/-) and costs for the violation of her privacy rights, but not exemplary damages, as the conditions for such awards were not met.
• The court determined that the 1st Respondent (Nairobi Hospital) and 2nd Respondent (Liberty Assurance) breached the petitioner's right to privacy by disclosing her HIV status to her employer without consent, violating Section 70(c) of the repealed Constitution.
• The court evaluated if the petition was barred by res judicata due to prior cases (HAT Case No. 003 of 2011 and HAT Case No. 005 of 2016), concluding it was not as the previous rulings lacked jurisdiction or addressed different claims.
• The court considered whether Section 70(c) of the repealed Constitution protected personal privacy beyond the home and property, interpreting it broadly to include medical information confidentiality.

Holdings

• The petitioner was awarded general damages of Kshs. 2,000,000/- for physical and psychological suffering caused by the violation of her privacy rights.
• The court declared that the disclosure of the petitioner's HIV status by the 1st and 2nd respondents to her employer without consent violated her right to privacy under Section 70(c) of the repealed Constitution.
• The petitioner was awarded costs of the proceedings against the 1st and 2nd respondents.

Remedies

• The Petitioner was awarded the costs of the proceedings against the 1st and 2nd respondents.
• The Petitioner was awarded general damages of Kshs. 2,000,000 against the 1st and 2nd respondents for physical and psychological suffering caused by the unlawful violation of her right to privacy.
• A declaration was issued that the disclosure of the Petitioner's HIV status by the 1st and 2nd respondents to her employer without consent violated her right to privacy under Section 70(c) of the repealed Constitution.

Monetary Damages

Legal Principles

• The court determined that the petition was not barred by the doctrine of res judicata because prior cases (HAT 003 and HAT 005) were dismissed for lack of jurisdiction and did not address the privacy breach claim. The current petition raised distinct issues not previously adjudicated on merits.
• The court recognized the Petitioner's legitimate expectation of confidentiality for her HIV status, as she explicitly requested non-disclosure and relied on this expectation in her legal arguments.
• The court employed a purposive approach to interpret Section 70(c) of the repealed Constitution broadly, extending privacy protection to personal information and health data. This aligned with international human rights law and democratic governance principles.
• The court ruled that the Nairobi Hospital (1st Respondent) was vicariously liable for the actions of Dr. Musau, a consultant, as he was treated as an employee despite being on call. The hospital could not avoid liability for his disclosure of the Petitioner's HIV status.
• The court applied the burden of proof principle, requiring the Petitioner to demonstrate that the respondents' actions violated her right to privacy. The Petitioner provided evidence of stigma, discrimination, and termination linked to the disclosure, which the respondents failed to rebut effectively.

Precedent Name

• Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others [2016] eKLR
• EMA v World Neighbours & another HAT Case No. 007 of 2015
• Commission for the Implementation of the Constitution v Attorney General & another [2013] eKLR
• John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR
• Re Butali Sugar Mills Ltd, Kisumu HCJR No. 17 of 2010
• Munwar Shuttle v County Government of Kilifi & 2 others [2018] eKLR
• Herman Nyangala Tsuma v Kenya Hospital Association t/a The Nairobi Hospital & 2 others [2012] eKLR
• Brooker v the Police (2007) NZSC 30
• Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR
• Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154

Cited Statute

• Evidence Act, Cap. 80 - Section 107
• Constitution of Kenya (Repealed) - Section 70(c)
• HIV/AIDS Prevention and Control Act

Judge Name

Passage Text

• Privacy can be more or less extensive, involving a broad range of matters bearing on an individual's personal life... Recognising and asserting this personal and private domain is essential to sustain a civil and civilised society... It is closely allied to the fundamental value underlying and supporting all other rights, the dignity and worth of the human person.
• Disclosure was necessary, and should only be authorized where the following conditions were met and not otherwise: a) Where the patient's viral load was so high that it militated against quick recovery... b) Where the patient's HIV status was the sole or primary cause of the medical condition that was being treated; c) Where the patient's HIV status or impact significantly affected the costs of the medical treatment... d) Where recurrence of the problem in future was reasonably foreseeable owing to the HIV status of the patient.
• A declaration is hereby issued that the disclosure of the Petitioner's HIV status by the 1st and 2nd respondents to the Petitioner's employer without the knowledge and consent of the Petitioner was a violation of the Petitioner's right to privacy under Section 70(c) of the repealed Constitution;