THE HIV AND AIDS PREVENTION AND CONTROLL

BILL, 2006. KENYA

PAPER FOR DISCUSSION ON 25TH OCTOBER 2006

In discussing the subject on The HIV and AIDS Prevention and

Control Bill, 2006 and its legal implications, it is important to
appreciate that inasmuch as we may make legislation, to add
to the existing volumes of various enactments in our country,
hold conferences and make deliberations based on statistical
data available from the Government or other organizations, the
implementation thereof shall only be achieved when all of us
are ready to conscientiously embrace the principle of
BEHAVIOUR CHANGE, without which all these legislations will
remain paper legislations.

While preparing the points of discussion in this paper,

reference has been made to the laws of the country, case law
(decided cases) – both reported and unreported – to explain
and elaborate the various relevant provisions. It is not an
authority on legal issues but my general comments and
observations on what is happening around. They do not
represent the views of the Law Society of Kenya either.

Should the Bill be passed and become law, then, amendments

may have to be made to reflect the reality on the ground. So
much information, records and data shall have to be borrowed
from those entrusted with the day-to-day care of people
affected and infected with the HIV and Aids virus. This may be
done through seminars where each section, part or provision
would or may be discussed at length and reasonable
recommendations made.

DISCRIMINATION OR STIGMATIZATION?

A.

The Law on Discrimination and HIV: Section 82 of the

Constitution provides for protection from discrimination. It is a
fundamental right.

1. CONSTITUTIONAL PROTECTION FROM DISCRIMINATORY

LAWS:

1
The Constitution prohibits the making of any law, which shall make
any provision that is discriminatory either of itself or in its effect. This
rule has the following three qualifications or exceptions. It is provided
that a law may be discriminatory so far as that law makes provision:-

a) with respect to persons who are not citizens of Kenya;

b) with respect to adoption, marriage, divorce, burial, devolution

of property on death or other matters of personal law;

c) for the application in the case of members of a particular race

or tribe of customary law with respect to any matter to the
exclusion of any law with respect to that matter which is
applicable in the case of other persons; or

d) whereby persons may be subjected to a disability or

restriction or may be accorded a privilege or advantage which
having regard to its nature or to special circumstances
pertaining to those persons is reasonably justifiable in a
democratic society.

ii) It is also provided that nothing contained in any law shall be

held to be inconsistent with or in contravention of protection
from discrimination on by law in question makes provision
with respect to standards or qualifications specifically relating
to race, tribe, place of origin or residence or other local
connection, political opinion colour or creed) to be required of
a person who is appointed to an office in the public service, in
a disciplined force, in the service of a local government
authority or in a body corporate established by any law for
public purposes.

2. CONSTITUTIONAL PROTECTION FROM

DISCRIMINATORY TREATMENT

The Constitution provides that no person shall be treated in a

discriminatory manner by a person acting by virtue of any written law
or in the performance of the functions of a public office or a public
authority.

‘Discriminatory’ in the context of the constitutional safeguard under

Section 82 of the Constitution means;-

2
‘affording different treatment to different persons attributable
wholly or mainly to their respective descriptions by race, tribe,
place of origin or residence or other local connection, political
opinions, colour, creed or sex whereby persons of one such
description are subjected to disabilities or restrictions to which
persons of another such description are not made subject or
are accorded privileges or advantages which are not accorded
to persons of another such description’.

To warrant protection from discrimination it must be proven that:-

a) treatment in a discriminatory manner was done by a

person acting by virtue of any written law or in the
performance of the functions of a public office or a
public authority; and

b) different treatment was afforded to different persons

and was attributable wholly or mainly to their
respective descriptions by race, tribe, place of origin, or
residence or other local connection, political opinion,
colour, creed or sex.

3. INADEQUACY OF CONSTITUTIONAL PROTECTION FROM

DISCRIMINATION

Would different treatment of a HIV person by a person not acting by

virtue of any written law or in the performance of the functions of a
public office or a public authority on grounds of their medical condition
entitle such person to protection from discrimination under Section 82
of the Constitution?

The High Court (Mugo Ag. J) in J. A. O.- v - Homepark Caterers

Ltd & 2 others Nairobi - High Court Civil Case No. 38 of 2003
(unreported) in dealing with an application wherein discrimination on
grounds of HIV status was in question observed that:-

‘treatment of HIV/AIDS patients by doctors, hospitals,

employers and others has been put under legal scrutiny ( in
other jurisdictions) with a view to moulding attitudes and
public policy such that the same would be free of
discriminatory tendencies’.

3
In the Homepark Caterers Ltd case, the Plaintiff’s termination from
employment was grounded on the medical report, which the Plaintiff
claimed to have been done without her consent and the disclosure
(again without her consent) of her HIV status.

The thrust of the employer’s defence was that the real reason for the
termination was prolonged absenteeism on medical grounds.

In an interlocutory ruling on an application to strike out the Plaintiff’s

suit for being scandalous, frivolous, vexatious and an abuse of the
Court process, it was held inter-alia that:-

a. if indeed the dismissal from employment can be said to have

been as a result of the Plaintiff being H.I.V positive then by
inference such treatment could, if proven, amount to inhuman
treatment contrary to Section 74 of the Constitution.

b. different treatment on medical grounds is not envisaged under

Section 82 of the Constitution since the acts in question were
not committed by the Defendants whilst acting by virtue of any
written law or in the performance of the functions of a public
office or a public authority.

4. Protection from discrimination under the HIV and AIDS

Prevention and Control Bill 2006; curing the constitutional
deficiency;

Sections 3 (b) (iii) of the HIV and AIDS Prevention and Control Bill,
2006 proposes to enact as amongst the objects and purpose of the
Act, that the Act shall extend to every person suspected or known to
be infected with HIV and AIDS, full protection of his human rights and
civil liberties by outlawing discrimination in all its forms and subtleties
against persons with or persons perceived or suspected of having HIV
and AIDS.

Part VIII of the 2006 Bill provides for protection from discriminatory
Acts and Policies and provides for protection from:-

(i). Discrimination in the work place. Section 31 (1) provides that

no person shall be :-
a. Denied access to any employment for which he is
qualified; or

4
 b. Transferred, denied promotion or have his employment
terminated on the grounds only of his actual perceived or
suspected HIV status.

Section 31 (2) provides that protection from discrimination at the work

place shall not be guaranteed in any case where an employer can
prove on application of the Equity Tribunal that the requirements of
the employment in question are that a person be in a particular state
of health or medical or clinical condition. Every employer would
definitely go this way and take this defence.

(ii) Discrimination in Schools: Section 32 provided that no

educational institution shall deny admission or expel, discipline,
segregate, deny participation in any event or activity or deny
any benefits or services to a person on the grounds only of the
person’s actual, perceived or suspected HIV status. (2005 –
Nyumbani case, judgment by Justice Martha Koome
following the introduction of the free primary education
at the beginning of last year. The learned Judge ruled in
favour of Nyumbani but then the question is whether or
not denial of admission would amount to Contempt of
Court.

(iii) Restriction on travel and habitation. Section 33 (1)

provides that a person’s freedom of abode, lodging or travel
within or outside Kenya, shall not be denied or restricted on
the grounds only of the person’s actual, perceived or
suspected HIV status.

It is common knowledge that whenever one seeks to obtain a

visa to any country, the person’s health status shall be the first
thing to be taken into account. For instance relocation to the
US via Green Card requires that every person be screened for
HIV and AIDS first before a Visa is granted to the person. In a
recent case aired on one FM radio stations – Kiss 100, a lady
called the station asking for the president’s intervention. Her
husband got a green card to the US and on going for medical
examination, tested HIV negative but the wife tested HIV
positive. Her husband got a visa and left and is now in the US.
The wife is still in Kenya one year later and has to depend on
her husband to grant a waiver for her to join him. How would
you judge this case, not independently but read with the family
in mind. Does it promote the values of a family or division?

5
What does it portend to the future of the family and the core
values for which it exists vis a vis this Bill?

Section 33 (2) provides that no person shall be quarantined,

placed in isolation, refused lawful entry or deported from Kenya
on the grounds only of the person’s actual perceived or
suspected HIV status.

(iv) Inhibition from Public Service. Section 34 provides that no

person shall be denied the right to seek an elective or other
public office on the grounds only of the person’s actual,
perceived or suspected HIV status.

(v) Exclusion from credit and insurance services. Section 35

(1) provides that no person shall be compelled to undergo a HIV
test or to disclose his HIV status for the purpose only of gaining
access to any credit or loan services, medical, accident or life
insurance or the extension or continuation of any such services.
However it is provided in Section 35 (2) that an insurer, re-
insurer or health maintenance organization shall in the case of
life and healthcare service insurance cover, devise a reasonable
cover for which a proposer shall not be required to disclose his
or her HIV status.

Section 35 (3) provides that where a proposer seeks a cover

exceeding the no test limit the insurer, re-insurer or health
maintenance organization may require the proposer to undergo an HIV
test.

Section 35 (4) provides that where a proposer elects to undergo an

HIV test and the results thereof are positive, the insurer or re-insurer
may impose a reasonable additional sum to the premium
ordinarily levied for the cover sought. (What if the additional sum
is not affordable by the proposer? The Bill is silent on this.

Section 35 (5) provides that a person aggrieved by a determination as

to what is reasonable additional premium may (optional) appeal to
the commissioner of insurance on the basis of statistical and actuarial
principles and other relevant considerations. What are these
“relevant” considerations and who would take this option any
way?

6
Sections 36 (6) provides that a person aggrieved by a determination
of the Commissioner of Insurance may appeal within thirty days to the
Equity Tribunal and the decision of the Tribunal shall be final.

(vi). Discrimination in Health institutions. Sections 36 provides

that no person shall be denied access to healthcare services in
any health institution or be charged a higher fee for any such
services on the grounds only of the person’s actual, perceived or
suspected HIV status.

(vii). Denial of burial services. Section 37 provides that a

deceased person who has had AIDS or was known, suspected or
perceived to be HIV positive shall not be denied access to any
burial services on the grounds only of their said status.

A penalty for discriminatory acts and practices is provided for under

Section 38, which states that a person who contravenes any of the
provisions of Part VIII to wit Sections 31 to 37 inclusive, commits an
offence.

B. HIV TRANSMISSION AS A SEXUAL OFFENCE OR AN

INGREDIENT THEREOF.

Until the enactment of sexual offences Act No. 3 of 2006 deliberate

transmission of HIV or any other life threatening sexually transmitted
disease was not an offence under Chapter XV of the Penal code
Chapter 63 of the Laws of Kenya dealing with Offences Against
Morality.

1. Judicial protection from deliberate transmission of HIV.

Prior to the enactment of the Sexual Offences Act No. 3 of 2006
the Judicial attitude towards deliberate transmission of HIV is
best captured in PHILLIP KIPKOECH CHEPKWONY V
REPUBLIC NAKURU HCCA NO. 128 OF 2004 (unreported)
where the Appellant was charged with defilement of a girl
contrary to Section 145 (1) of the Penal Code as amended by
legal notice No.25 of 2003. The Appellant was alternatively
charged with indecently assaulting the complainant contrary to
Section 144 (1) of the Penal Code. The Appellant pleaded not
guilty to the charges and after a full trial was convicted of the
main charge of rape. He was sentenced to serve a life
imprisonment. He was aggrieved by his conviction and sentence
and appealed to the High Court.

7
 At the hearing of the appeal, the Appellant took issue with the
allegation by the prosecution that he had been tested and found to
be H.I.V positive and therefore infected the complainant with the
AIDS virus.
He submitted that no evidence was adduced by the prosecution to
establish that indeed he had infected the complainant with AIDS
virus and reiterated that the complainant was his girlfriend and
stated further that the trial magistrate had failed to consider his
evidence on the said effect.

The Court after reconsidering and re-evaluating the evidence

adduced before the trial magistrate’s court upheld the conviction
firmly holding that:-

‘evidence was adduced that the appellant was tested and found
to be HIV positive. The appellant defiled the complainant in
the full knowledge that there was a possibility that he could
infect her with the said AIDS virus. Although the prosecution
did not establish that the appellant had indeed infected the
complainant with the AIDS virus, this court cannot ignore the
fact that the appellant was armed with a lethal weapon which
weapon he used to potentially inflict a fatal injury on an
innocent girl child.

The appellant is a danger to the children in the Society and

should therefore be put away so that he may not pose any
more threat to the innocent children of his nation. This court is
aware that sometimes justice has to be tempered with mercy.
In this case, this court does not see how it can exercise mercy
on the appellant who deliberately and without due regard to an
innocent girl, sexually assaulted here and potentially infected
here with the AIDS virus. The complainant did nothing to
deserve the treatment that was meted to her by the appellant.
The appellant did not show mercy to the complainant. The
dreams of the complainant of having a bright future and maybe
having a family was shattered by the singularly beastly and
brutal act of the appellant.

The appellant wants this court to ignore all these facts and
exercise mercy on him. I think it would be travesty of justice if
this court were to release the appellant to the society so that
he could prey on other innocent and vulnerable young girls. I
will not grant him his wish (sic). He should remain where he is

8
for the rest of his life. The appellant should not be given
another opportunity to cause misery to innocent young girls. I
decline to review the life imprisonment imposed by the trial
magistrate. His appeal on sentence is therefore dismissed. He
shall serve the sentence imposed by the trial magistrate’

2. Parliamentary (statutory) protection from deliberate

transmission of HIV.

2.1 Substantive protection from deliberate transmission of

HIV. Parliament by way of The Sexual Offences Act No. 3 of
2006 has further boosted protection from deliberate
transmission of HIV or indeed any other life threatening Sexually
Transmitted disease by enacting in Section 26 that; -

Under Section 26 (1) Any person who having actual knowledge

that he or she is infected with HIV or any other life threatening
sexually transmitted disease intentionally, knowingly and willfully does
anything or permits the doing of anything which he or she knows or
ought to reasonably know; -

a. will infect another person with HIV or any other life threatening
sexually transmitted disease;

b. is likely to lead to another person being infected with HIV or any

other sexually transmitted disease;

c. will infect another person with any other sexually transmitted

disease,

shall be guilty of an offence whether or not he or she is married to

that other person and shall be liable upon conviction to imprisonment
to a term of not less than 15 years but which may be for life.

Section 26A Where a person is convicted of any offence under

the sexual offence Act no.3 of 2006 and it is proved that at the time of
the commission of the offence, the convicted person was infected with
HIV or any other life threatening sexually transmitted disease whether
or not he or she was aware of his or her infection, not withstanding
any other sentence in The Sexual Offences Act No. 3 of 2006 he or she
shall be liable upon conviction to imprisonment for a term of not less
than 15 years but which may be enhanced to imprisonment for life.

9
Presumptions of fact underpinning protection from deliberate
transmission of HIV or any other life threatening sexually
transmitted disease.

Section 26 of the Sexual Offences Act introduces two presumptions to

underpin protection from deliberate transmission of HIV or any other
life threatening sexually transmitted disease.

1. Section 26 (10) (a) introduces on irrebuttable presumption

of fact that the presence in a person’s body of HIV antibodies or
antigens detected through an appropriate test or series of tests
shall be prima facie proof that the person concerned is infected
with HIV.

2. Section 26 (10) (b) introduces a rebuttable presumption of fact

that if it is proved that a person was infected with HIV after
committing an offence, referred to in the sexual offences Act, it
shall be presumed unless the contrary is shown, that he or she
was infected with HIV when the offence was committed.

2.2 Enabling safeguards to achieve effective protection from

deliberate transmission of HIV

Other notable important safeguards relate to collection of evidentiary

samples from the accused thereby overcoming the potential difficulty
of withholding consent to take medical samples.

It is provided that:-

(i) Not withstanding the provisions of any other written law, where
a person is charged with the office of deliberate transmission of
HIV or any other life threatening Sexually transmitted disease,
the court may direct that an appropriate sample or samples be
taken from the accused at such place not object to such
conditions as the court may direct for the purpose of
ascertaining whether or not he or she is infected with HIV or any
other life threatening sexually transmitted disease.

(ii) the sample or samples taken from the accused person shall be
stored at an appropriate place until finalization of the trial.

(iii) the court shall where the accused person is convicted order that
the sample or samples be tested for HIV or any other life
threatening sexually transmitted disease and where the accused

10
 person is acquitted order that the sample or samples be
destroyed.

(iv) where a court has given directions that sample or samples be

tested for HIV or any other life threatening sexually
transmitted disease, any medical practitioner is designated
person shall if so requested in writing by a police officer
above the rank of a constable, take an appropriate sample or
samples from the accused person concerned.

(v) An appropriate sample v samples taken:-

a. Shall consist of blood, urine or other tissue or substances as

may be determined by the medical practitioner or designated
person concerned in such quantity as is reasonably necessary
for the purpose of determining whether or not the accused
person is infected with HIV, or any other life threatening
sexually transmitted disease and

b. In case of blood or tissue sample, shall be taken from a part

of the accused persons body selected by the medical
practitioner or designated person concerned in accordance
with accepted medical practice.

(vi) any person who without reasonable excuse, hinder or

obstructs the taking of an offence of obstructing the cause of
justice and shall on conviction be liable to imprisonment for a
term of not less than five years or to a fine of not less than
fifty thousand shillings of to both.

(vii) Without prejudice to any other defence or limitation that may

be available under any law, no claim shall lie and no set-off
shall operate against

a. the state;

b. any minister; or

c. any medical practitioner or designated persons,

in respect of any detention, injury or loss caused by or in connection

with the taking of an appropriate sample, unless the taking was
unreasonable or done in bad faith or the person who took the sample
was culpably ignorant and negligent.

11
 2.4 The HIV and AIDS Prevention and Control Bill, 2006
and transmission of HIV; Supplementing The Sexual
Offences Act No. 3 of 2006.

Part VI of the HIV and AIDS Prevention and Control Bill 2006
provides for prevention of transmission of HIV thereby
supplementing the provisions of section 26 of the Sexual Offences
Act.

Sections 24 (1) provides that a person who is and is aware of being

infected with HIV or is carrying and is aware of carrying the HIV
virus shall;-

a. take all reasonable measures and precautions

to prevent the transmission of HIV to others;
and

b. inform in advance of any sexual contact or

person with whom needles are shared of that
fact.

Section 24 (2) provides that a person who is aware of being infected

with HIV or who is carrying and is aware of carrying HIV antibodies
shall not knowingly or recklessly place another person at risk of
becoming infected with HIV unless that other person knew of that fact
and voluntarily accepted the risk of being infected.

Sections 23 (3) provides that a person who contravenes the provisions

of Section 24(1) or 24 (2) commits an offence and shall be liable upon
conviction to a fine not exceeding Five thousand shillings or to
imprisonment for a term not exceeding seven years or to both such
fine and imprisonment.

Sections 24 (4) provides that a person who is and is aware of being

infected with HIV or is carrying and is ware of carrying the HIV virus
may request any medical practitioner or any other approved person to
inform and counsel a sexual contact of the HIV status of that person.

Section 24 (7) provides that a medical practitioner who is responsible

for the treatment of a person and who becomes aware that the person
has not after reasonable opportunity to do so:-

12
 (i) taken all reasonable measures and precautions to
prevent transmission of HIV to others

(ii) informed in advance any sexual contact or person with

whom needles are shared of the fact that he is infected
with HIV or is carrying and is aware of carrying the HIV
virus;

(iii) being aware of being infected with HIV or is carrying

and being aware of carrying the HIV virus requested
any medical practitioner or any approved person to
inform and counsel a sexual contact of his HIV status.

may inform any sexual contact of that person of the HIV status of that
person.

C. HIV, DEFAMATION AND CONFIDENTIALITY

3.1 HIV and the Law of Defamation.

The law recognizes in every person a right to have the estimation in

which they stand in the opinion of others unaffected by false
statements to their discredit.

The law of defamation therefore protects every person’s general

reputation in fact and not the reputation he deserves. It protects
these interests from imputations to a person’s discredit or those,
which tend to lower them in the estimation of others or to expose
them to hatred, contempt or ridicule, or to injure their reputation in
their office, trade or profession or to injure their financial credit.

At Common Law any imputation of conduct considered by right

thinking persons to be immoral is necessarily defamatory. Clerk &
Lindsell on Torts 16th Edition 1989 at paragraphs 21 to 23 on
page 1096 says that.…..“but what of an imputation that a person
is HIV positive? The general perception by the public that
AIDS is an exclusively venereal disease linked to promiscuity
and the risks of exclusion from society of HIV positive persons
are such that an imputation that a person is a carrier of or
suffering from the disease would seem to make such an
imputation properly actionable per se.”

Imputation that a person was of loose sexual morals as a result of

which that person had contracted HIV /AIDS was the subject of

13
litigation in Lucy Ndegi v James Kibe, Nairobi HCCC No. 860 of
2003).

In the Ndegi case the Plaintiff proved that the Defendant had
denounced her as a prostitute which she understood to mean that she
was of loose sexual morals and then the Plaintiff told her that she had
slimmed from her originally larger bodily appearance, she understood
it to mean that she was a victim of HIV/AIDS infection which had
cause her to slim down.

The Plaintiff proved that she had to close down her sales business, as
potential customers would say they do not want to buy goods and
supplies from an AIDS patient. She further testified that since she
incurred major business losses in the aftermath of the slander by the
Defendant she has not been able to bond very well with her husband
in the domestic arena.

The Court took the position this Ndegi case was one in which undue
harm had been caused to a peace loving citizen in character and with
serious implications for her normal and economic life. The harm had
been caused through flagrant defamation mindlessly or even recklessly
perpetuated.

The Court awarded the Plaintiff Kshs.65,000.00 general damages and

in awarding her a social loss of Kshs.20,000.00 and exemplary
damages of Kshs.5,000.00.

“……during that whole period she has lived as a rather shame-

faced person in her community following the depreciatory,
slanderous declamations of her in full public view. I also
award exemplary damages to discourage the Defendant and
others from such reckless, abusive and defamatory assault on
an innocent lady living her life in peace.”

3.2 HIV AND CONFIDENTIALITY: How The HIV and AIDS

Prevention and Control Bill 2006 Balances The Right To
Protection of a Person’s Reputation Against The
Obligation To Prevent Transmission of HIV to Innocent
People By Disclosure of a Person’s HIV Status.

Part V of the HIV and AIDS Prevention and Control Bill, 2006 deals
with confidentiality between a healthcare provider and patient but
takes note of the grave situations posed by the danger of transmitting
HIV and AIDS to innocent people. It embodies the circumstances

14
under which the result of an HIV test or any related assessments may
be disclosed to a third party without incurring any legal liability.

Section 20 (1) provides that the Minister responsible for matters

relating to health shall prescribe privacy guidelines including the use of
an identifying code relating to the recording, collecting, storing and
security of information records or forms used in respect of HIV tests
and related medical assessments.

Section 20 (2) provides that no person shall record, collect transmit or

store records information or forms in respect of HIV tests or related
medical assessments of another person otherwise than in accordance
with the privacy guidelines.

Section 21 safeguards confidentiality by prohibiting the inclusion of

any information, which directly or indirectly identifies the person to
whom an HIV test relates in the following documents and records:-

a) a request for an HIV test in respect of themselves;

b) an instruction by a Medical Practitioner to a

laboratory for an HIV test to be conducted;

c) the laboratory testing for HIV or HIV antibodies;

d) the notification to the Medical Practitioner of the

result of the HIV test.

Section 22 prohibits the disclosure of any information concerning the

result of an HIV test or any related assessment to any other person
except;

a) with the written consent of that person ;

b) if that person has died, with the written consent of that person’s
partner, personal representative, administrator or executor.

c) If that person is a child, with the written consent of a parent or

legal guardian of that child.

d) If that person is unable to give written consent, with the oral

consent of that person or with the written consent of the person
with a Power of Attorney for that person.

15
 e) If in the opinion of the Medical Practitioner, who undertook the
HIV test, that person has a disability by reason of which the
person appears incapable of giving consent with the written
consent, (in order of: (i) a legal guardian of that person, (ii) a
partner of that person, (iii) a parent of that person, or (iv) an
adult offspring of that person.

Section 22 prohibits disclosure of information concerning the results of

an HIV test or any related assessments except:

(a) to a person approved by the Minister responsible for matters

related to health who is DIRECTLY involved in the treatment or
counseling of that person;

(b)for the purpose of an epidemiological study or research

authorized by the Minister;

(c)to a Court where the information contained in medical records is

directly relevant to the proceedings before the Court, Equity
Tribunal established under the intended Act.

(d)To the Registrar of Births and Deaths, (pursuant to Sections 18

of the Births and Deaths Registration Act (Cap 149) Laws of
Kenya if the person to whom the information relates dies.

(e)If authorized or required to do so under the intended Act or

under any other written law.

Under Section 23, Breach of Confidentiality is an offence punishable

under Section 42 by imprisonment for a term not exceeding 2 years or
to a fine not exceeding Kshs.100,000.00 or both.

4. HIV and DIVORCE

Under the Matrimonial Causes Act Cap 152 and the Subordinate Courts
(Separation and Maintenance) Act Cap 153 of the Laws of Kenya, a
woman or an Applicant may apply by either petition or otherwise to
the Court for an Order or Orders or Divorce under these Acts on the
ground that;-

(a) The Respondent has since the celebration of the marriage

committed adultery (ADULTERY) or

16
 (b) Has deserted the petitioner without cause for a period of at
least 3 years immediately preceding the presentation of the
petition (DESERTION) or

(c) Has since the celebration of the marriage treated the

petitioner with cruelty (CRUELTY) or

(d) Is incurably of unsound mind and has been continuously

under care and treatment for a period of at least 5 years
immediately preceding the presentation of the petition.
(INSANITY)

The wife may present a petition on the ground that her husband
has, since the celebration of the marriage, been guilty of rape,
sodomy or bestiality. (UNNATURAL OFFENCES E.G.,
HOMOSEXUALITY)

In addition, a petition may be presented in Court by either party on

grounds of non-consummation in which case the applicant shall be
seeking orders from the Court for the nullification of the marriage.

Under Cap 153, a woman may apply to the Court for Orders on the
Grounds:-

(i) that her husband has compelled her to submit herself

to prostitution.

(ii) that her husband is a habitual drunkard or a habitual

drug taker.

(iii) that besides being guilty of persistent cruelty to her or

her children, he has willfully neglected to provide
reasonable maintenance for her or her children whom
he is legally liable to maintain.

In RETMAIR –V- RETMAIR High Court Divorce Cause No. 22 of

2001, the wife petitioned the Court for Divorce on grounds of adultery
of the Respondent that was indirectly a ground on HIV/AIDS. The
Petitioner told the Court that she had information about her husband’s
wayward behavior culminating in a sexual relationship with a woman
suspected to be suffering from HIV/AIDS. In fact both that woman
and her husband have since died of the disease. The Petitioner in

17
order to try and salvage their marriage urged her husband to take an
HIV test but he declined and this fact strained their marriage as a
result of which the husband started drinking heavily and often took
money from the business to finance this behavior. The wife felt
embarrassed and stated that there was no possibility of reconciliation
between them. The marriage had irretrievably broken down. She
prayed for dissolution of marriage on the ground of adultery but more
particularly, for fear of contracting HIV. The Respondent did not
challenge the evidence of the Petitioner and so the matter was
certified as an undefended cause. The Learned Judge in her ruling
did not delve into the details of the reasons for the marriage but only
made reference to the causes of the breakdown of the marriage and
proceeded to grant an Order dissolving the marriage.

Stigmatization or Discrimination? By whom, why and how? The line

between these two words is very narrow. To go for a HIV test, or not
to go for one? This depends on circumstances and the attitude of the
person. To disclose, or not to disclose? We need to establish our own
jurisprudence in determining these issues. Should we be unable to do
this, we shall come to a stage where the interpretation of very simple
issues touching on this subject may have to be referred to Court (for a
constitutional reference). In essence we shall be allowing the Courts
to make decisions as to what constitutes an offence.

How can we encourage our sisters and brothers, friends, relatives,

colleagues etc to accept their status? All employers require a medical
certificate from a recognized medical practitioner, before confirming
one in their employment; financial institutions demand that one
provides them with a medical report before advancing the loan to a
borrower. Besides, employers, aware of the possibility of dishonesty
among employees, provide medical health insurance to its employees.
The medical insurance provider furnishes the employer with periodical
statements/returns on the treatment of employees. This information
is confidential, but may be used by the employer, in either denying an
employee a certain right or benefit. Would you attempt to compel the
employer to do what he knows would not be beneficial to his business
or rather, not cost effective in the long run?

A court in the US had to make a decision on behalf of a family where

an operation involving Siamese twins joined at the chest had to be
done. The consequences of the operation were obvious to the doctors
intending to operate on the infants. The question arose as to who
would be best placed to give authority for the operation. The parents
and family members would not give the authority. The doctors sought

18
the Court’s intervention. The Court ruled in favour of the operation,
stating that the best interests of the children were paramount and
required that the operation be carried out regardless of the
consequences. Since one of the infants obviously had a high chance
of survival anyway, then, it would be in the best interests of the
children that the operation is carried out. The life of the person,
according to the criminal laws of every country, lies in the hands of
the State. Hence all suits against the life of a citizen are brought by
the or in the name of the State/Republic.

THANK YOU

Alexandra N. Muniafu,
Advocate,
Muniafu & Company Advocates,
FPFK Head Office,
Kindaruma Road, Off Ngong/Menelik Road,
Next to Marie Stopes Kenya,
P.O. Box 15791-00100,
GPO Nairobi.
Tel: 254 – 020 – 3877654/3874704
Fax: 254 – 020 – 3874704
Email: amuniafu@yahoo.com
Hand Deliveries to Dropping Zone Box No. 11 Revlon Professional Plaza,
Tubman Road, Next to Teachers Service Commission..

19