REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION
MILIMANI LAW COURTS
CIVIL APPEAL NO. 671 OF 2017

ATHI RIVER SHALOM COMMUNITY HOSPITAL.………………………. APPELLANT

VERSUS

MARTHA NGENDO KIHITI .………………………………………………RESPONDENT

(An appeal from the Judgment of the HIV & AIDS Tribunal delivered on the 10th day of
November, 2017 in HAT Case No. 002 of 2017)

BETWEEN
MARTHA NGENDO KIHITI ……………………………………………………CLAIMANT

VERSUS

ATHI RIVER SHALOM COMMUNITY HOSPITAL…………………….. RESPONDENT

RESPONDENT’S WRITTEN SUBMISSIONS

A. INTRODUCTION
Your Lordship,
1. The matter herein arises from the Judgment of the HIV & AIDS Tribunal delivered in the
presence of the Respondent on 10th November 2017 upon the determination of the
Claimant’s Statement of Claim dated 16th February 2017. (See pages 1 to 39 of the
Record of Appeal dated 16th November 2018)

2. Upon determination of the Claimant’s claim and the Respondent filing their witness
statements, bundle of documents and testifying in the hearing thereof, the Honourable
Tribunal exercised its jurisdiction under Section 26 of the HIV and AIDS Prevention and
Control Act Cap 264 of the Laws of Kenya and found in favour of the Claimant and
awarded her as follows;
i. Kshs 1,000,000/- in compensation of damages against the Respondent for
the unlawful testing of the Applicant’s daughter without her consent
contrary to section 13 and 14 of the HIV and AIDS Prevention and
Control Act.
ii. Kshs 500,000/- in damages against the Respondent for giving wrong HIV
result to the patient.
iii. Costs of the HIV & AIDS Tribunal
(See Judgment on pages 84 to 95 of the Record of Appeal dated 16th November 2018)
3. The Judgment of the HIV Tribunal was thereafter adopted by the Honourable Court in
Nairobi Miscellaneous No. 99 of 2018: Martha Ngendo Kihiti –vs- Athi River Shalom
Community Hospital on 7th May 2018 as an order of the Court binding upon parties. The

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 Decree was thereafter extracted and served upon the Respondent on 4th July 2018. (See a
copy of the Decree on page 96 of the Record of Appeal dated 16th November 2018)

4. The Appellant herein settled the Decree issued on 7th May 2018 by this Honourable Court
and the same was confirmed in the Supplementary Affidavit of the Respondent sworn on
29th October 2018 and filed on 29th October 2018 in the Appeal herein and served upon
the appellant on 30th October 2018.

5. The Appellant through its insurer, PACIS Insurance Company Limited forwarded to the
Respondent’s Advocates herein its cheques Nos. 041550 for Kshs 751, 225.00 and
cheque No. 041548 for Kshs 751,225/- and a final cheque no. 041551 for Kshs 180,000/-
in favour of the Auctioneers Kiriiyu Merchants who had sought to execute the Decree.

6. The Decretal sum and the award of the HIV Tribunal have since been settled by the
Appellant herein on 26th July 2018.

ISSUES FOR DETERMINATION

7. Whether this Court has jurisdiction to hear the Appeal AND Whether the Appellant
should have filed an Appeal OR sought to review the Decree of the Court issued In
Nairobi Miscellaneous No. 99 of 2018: Martha Ngendo Kihiti –vs- Athi River Shalom
Community Hospital on 7th May 2018?
8. Whether the Learned Tribunal misdirected itself and erred in law and fact by writing and
delivering a judgment against the law and weight of evidence?
9. Whether the Learned Tribunal misdirected itself in law and in fact by delivering a
Judgment without jurisdiction?

LAW
A. Whether this Court has jurisdiction to hear the Appeal AND Whether the Appellant
should have filed an Appeal OR sought to review the Decree of the Court issued In
Nairobi Miscellaneous No. 99 of 2018: Martha Ngendo Kihiti –vs- Athi River
Shalom Community Hospital on 7th May 2018?

1. Your Ladyship, in the celebrated case of ‘Lilian S’ case [1989] KLR ‘Jurisdiction is
everything. Without it, a court has no power to make one more step. Where a court has
no jurisdiction, there would be no basis for a continuation of proceedings pending other
evidence. A court of law must down its tools in respect of the matter before it the moment
it holds the opinion that it is without jurisdiction’. (Emphasis ours)

2. We submit that the Appeal in this present case seeks Orders against the Award of the
HIV and AIDS Tribunal delivered on 10th November 2017.

3. We submit that the Award of the HIV and AIDS Tribunal is NO LONGER an award
BUT an order and decree of the High Court having been adopted on the 7th day of May
2018 in Miscellaneous Cause No. 99 of 2018: Martha Ngendo Kihiti –vs- Athi River
Shalom Community Hospital.

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4. We submit that the term ‘Decree’ is defined under section 2 of the Civil Procedure Act as
“decree” means the formal expression of an adjudication which, so far as regards the
court expressing it, conclusively determines the rights of the parties with regard to all or
any of the matters in controversy in the suit and may be either preliminary or final; it
includes the striking out of a plaint and the determination of any question within section
34 or section 91, but does not include—
(a) any adjudication from which an appeal lies as an appeal from an order; or
Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be
appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not
have been drawn up or may not be capable of being drawn up;

5. We submit that a Court cannot adopt an award and thereafter purport to determine an
Appeal against an award that has seized to exist.

6. We submit that this Honourable Court can only be moved by way of review/setting
aside the Order and Decree of the High Court in Miscellaneous No. 99 of 2018 and
cannot hear and determine an Appeal against an award that has been adopted as an Order
of the High Court.

7. We humbly submit that this Honourable Court has held in several cases such as in the
case of Republic –vs- Kajiado North District Land Disputes Tribunal & Another ex
parte Caroline Wambui Ngujiri & 2 Others (2014) eKLR where Odunga J observed
‘…Where a decision of the Tribunal has been adopted by the Court of Law is that the
former is subsumed into the latter and the former ceases to exist with the result that the
only decision that can be quashed is the Magistrate’s adoptive decision…’

8. Your Lordship, in the case of Florence Nyaboke Machani v Mogere Amosi Ombui &
2 others [2015] eKLR, the Supreme court affirmed the findings of the High Court which
declined to grant the Orders sought, stating that “…the award of the Borabu Land
Disputes Tribunal having been adopted by the Senior Resident Magistrate’s Court at
Keroka, ceased to exist on its own, and thus, could not be the subject of a declaration.
The High Court further observed that even if the declaration was to issue with regard to
the Tribunal’s award, it would have no effect as the decree that emanated from the lower
Court’s Judgment had not been challenged by the plaintiff. The learned Judge further
held that, upon an award becoming a Judgment of a Court of competent jurisdiction, it
can only be varied, vacated, set aside or reviewed by the same Court, or by an appellate
Court in appropriate proceedings...” (Emphasis ours)

9. Your Lordship, the Decree of this Honourable Court as adopted in Miscellaneous

Cause 99 of 2018 has not been challenged by the Appellant and further the
Appellant has not sought any orders before a Court of competent jurisdiction to
vary, vacate, set aside or review the Decree OR an appellate court in appropriate
proceedings. (Emphasis added)

10. We submit that the Memorandum of Appeal/Appeal offends the provisions of Section 66
of the Civil Procedure Act which provides for an appeal to the Court of Appeal on a
Decree of the High Court since the award of the Tribunal no longer exists.

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11. We submit that it is the Respondent contention that this Honourable Court has no
jurisdiction to determine the Appeal herein which has been overtaken by events as the
Award being appealed has ceased to exist.
12. Your Ladyship, we submit that this Honourable Court cannot entertain the Appeal having
pronounced itself in Miscellaneous No. 99 of 2018 and adopted the award of the
Tribunal.

B. SUBMISSION TO THE ISSUES AS RAISED IN THE APPEAL

a) Whether the Learned Tribunal misdirected itself and erred in law and fact by
writing and delivering a judgment against the law and weight of evidence

13. Your Lordship, it is our humbly submission that the learned Tribunal delivered a
judgment as per the law and reviewed the evidence and the testimony placed before it by
the Appellant and the Respondent.

14. We submit that CONTRARY to the re-edition of the proceedings and testimony of the
Appellant’s witness before the HIV Tribunal on pages 5 and 6 of the Appellant’s written
submissions, the CORRECT position of the evidence adduced and the testimony given
before the HIV Tribunal is found in the proceedings which were recorded by the
Tribunal itself and re-produced for the readership of this Honourable Court on pages 43
to 49 of the Record of Appeal and further re-evaluated by the Tribunal in its judgment on
pages 1-3 titled Summary of the Pleadings, Evidence and submissions by parties hereto.
(See pages 84 to 95 of the Record of Appeal)

15. It is our submission that no evidence has been illustrated by the Appellant herein to show
that there was no analysis made by the learned Tribunal of the evidence and submissions
of parties in issuing its final determination.

16. We urge this Court to find that the learned Tribunal delivered a judgment based on the
law and evidence on record.

b) Whether the Learned Tribunal misdirected itself in law and in fact by delivering a
Judgment without jurisdiction?

17. Your lordship, we submit that the Honourable Tribunal had jurisdiction to hear and
determine the Respondent’s claim.

18. We submit that Section 26(a) of the HIV and AIDS Prevention and Control Act No.14 of
2006, provides for the jurisdiction of the HIV and AIDS Tribunal as follows:

a. The Tribunal shall have jurisdiction to hear and determine complaints arising out of
any breach of the provisions of this Act.

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19. We submit that a perusal of the entire judgment of the HIV and AIDS Tribunal does not
illustrate in any paragraph whatsoever that they have considered the complaints of the
Clamant under any article of the Constitution of Kenya 2010. (See pages 84 to 95 of the
Record of Appeal)

20. We submit that the Appellant has not illustrated under which paragraph of the Judgment,
the tribunal addressed any issue in reference to the Constitution of Kenya 2010.

21. A judgment cannot be null and void based on fictitious allegations that the Tribunal over
stepped its boundaries. We submit that an allegation such as this has to be backed with
facts.

22. We submit that the Tribunal determined the matter based on the following laws:

i. sections 13, 14 (1) (a) and (b), section 14(2)(c)(i) and (ii) and section 21 of the
HIV and AIDS Prevention and Control Act No.14 of 2006
ii. The 2008 Kenya Guidelines on HIV Testing and Counseling
iii. The 2015 HIV Testing Services Guidelines
iv. Kenya Quality Model of Health 2011

23. We submit that the Appellant has not provided any information or facts that indicate that
the HIV Tribunal acted beyond its scope.

24. We submit that the Honourable Tribunal had jurisdiction to hear and determine the
Respondent’s claim.

c) The learned Tribunal misdirected itself and erred in law and fact by holding that
the Appellant compelled the Respondent’s minor to undergo HIV testing without
her consent, A Constitutional matter disguised as a non-existent ‘tort’ and holding
the Appellant liable for damages, without jurisdiction, against the law, practice and
precedent and against the weight of evidence and whether the Learned Tribunal
misdirected itself and erred in law and fact by disregarding the truthful, cogent and
reliable evidence of the Appellant’s witnesses and instead relying on the untruthful,
contradictory, unsupported testimony of the Respondent.

25. We submit that the HIV Tribunal did not err in holding that the Appellant compelled the
Respondent’s daughter to undergo HIV testing without consent.

26. Your Lordship, contrary to the submissions and assertions of the Appellant herein, the
HIV tests were indeed conducted by its officers without the written consent of the
guardian of the minor.

27. We submit that the Appellant filed their witness statements dated 23rd March 2017 which
included;

i. The handwritten statements by Michael Opondo, Clinician;

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 ii. Typed Statement by Michael Opondo, Clinician and
iii. Typed Statements by violet Chereger, Laboratory Incharge
(See page 30 -36 of the Record of Appeal)

28. We submit that on page 32 and 35 of the Record of Appeal, the handwritten statement of
Michael Opondo he affirms as follows:
‘I further requested for an HIV test for diagnostic purposes based on failure to gain
weight only to be informed by the customer clerk after the patient had left my
consultation room that the mother had left for work therefore she was not within the
hospital premises. It was therefore not possible to gain consent from the patient as she
was a minor…’

29. We also submit that on page 36 of the Record of Appeal, the typed statement of Violet
Chereger begins with ‘…On 5th of July 2016, the above patient was attended to in our
lab. The test requested were ESR, malaria and HIV test. The only tests that were done
were ESR and BS for MPS. HIV test was not doneas the patient was a minor and the
reagents were out of stock…’

30. During the trial, the DW2, Violet Chepchumba Chereger adopted her witness statements
and during the trial gave testimony completely CONTRARY to her witness statement ‘…
I didn’t know her exact age…’ This is after stating that she knew that the test was for a
minor. (See page 48 of the Record of Appeal.

31. She also proceeded to testify that ‘…the clinician directed me to do three (3) test…’ (See
page 49 of the Record of Appeal.

32. During the trial DW1 testified that ‘…I ordered for some test which included HIV
testing…’ When asked whether he had the informed consent…he testified that he did not
have the signed consent form…’ (See page 45 of the Record of Appeal).

33. There were so many inconsistencies in the Appellant’s witnesses testimony both written
and in Court and this was noted by the HIV Tribunal (see pages 2 and 3 of the Judgment
on page 85 and 86 of the Record of Appeal, from paragraphs 5)

34. Further the Appellant and the Respondent herein both produced the results of the HIV
tests which indicated that P24 was positive. (See Respondent’s List of Documents dated
24thMarch 2017 on pages 37 and 38 of the Record of Appeal and the Claimant’s List of
documents dated 8th March 2017 on page 19 and 22 of the Record of Appeal)

35. The HIV Tribunal did in fact analyze both the evidence and the testimony of the both
parties and gave conclusions in its judgment including the numerous inconsistencies that
were apparent with the testimony of the Appellant herein.

36. We submit that the facts and evidence were analyzed and it was in fact the Appellant’s
evidence that was uncollaborated with any evidence to the contrary.

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d) The learned Tribunal misdirected itself and erred in law and fact by shifting the
burden of proof, even knowing through settled law and practice that the Burden of
proof lies with the Respondent in proving all her allegations (which she never
proved), then the Learned Tribunal proceeded to shift the Burden of proof to the
Appellant against law and practice, commenting in sections of the judgment that ‘…
the Respondent’s arguments cannot success under this head’ disregarding the law
and fact that it was the Respondent’s burden to prove her allegations.

37. We submit that the ground herein is completely unsupported by the Appellant and merely
sought to misdirect this Honourable Court.

38. We invite this Honourable Court to peruse the Judgment of the HIV Tribunal which will
indicate that parties had filed their written submissions and under each head it provided
its determination. On several of these issues for determination, the Claimant also lost. See
the judgment of the Tribunal on pages 84-95 of the Record of Appeal)

39. Both submissions were analyzed by the Tribunal and it is therefore false to state that the
Tribunal completely disregarded the Written Submissions of the Appellant herein.

40. It should be noted your Lordship, that no evidence was provided by either DW1 or DW2
that the healthcare system had changed, including notified to the public of the testing of
the new system.

41. We submit that the Appellant’s testimony was inconsistent and not backed by any
evidence.

42. We submit that the Respondent herein discharged her burden of proof in the case before
the HIV Tribunal when she provided her witness statements and further backed it using
her list of documents which included a screenshot of the computer results which
confirmed that the HIV/P24 test was conducted and that the results were positive.

43. Further the Appellant proceeded to use the same results and did not refute them. Further
no ‘written consent’ was provided which backed the evidence and allegation of the
Claimant.

44. We submit that section 107 of the Evidence Act, which deals with the burden of proof in
any case aptly stated that it lies with the party who desires any court to give judgment as
to any legal right or liability, is for that party to show that the facts which he alleges his
case depend upon exist.

45. We submit that the Claimant discharged here legal burden of proof by way of the
Written Statement, her List of documents and her consistent testimony before the HIV
Tribunal. (See the Record of Appeal)

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46. We also submit that the Respondent discharged her legal burden and the principle of law
is amplified by the learned authors of the leading Text Book;- The Halsbury’s Laws of
England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:
“…The legal burden is the burden of proof which remains constant throughout a
trial; it is the burden of establishing the facts and contentions which will support a
party’s case. If at the conclusion of the trial he has failed to establish these to the
appropriate standard, he will lose...’

47. We submit that in respect of a particular allegation, the burden lies upon the party for
whom substantiation of that particular allegation is an essential of his case. There may
therefore be separate burdens in a case with separate issues. (See the case of Mbuthia
Macharia v Annah Mutua Ndwiga & another [2017] eKLR where the Court of
Appeal held that ‘… [16] The legal burden is discharged by way of evidence, with the
opposing party having a corresponding duty of adducing evidence in rebuttal. This
constitutes evidential burden. Therefore, while both the legal and evidential burdens
initially rested upon the appellant, the evidential burden may shift in the course of trial,
depending on the evidence adduced. As the weight of evidence given by either side during
the trial varies, so will the evidential burden shift to the party who would fail without
further evidence?...’

48. We submit that the Appellant herein failed to discharge its corresponding duty of
adducing evidence in rebuttal to the Claimant’s allegations.

49. We submit that in this incidence of both the legal and evidential burden was with the
Appellant herein. It was upon the Appellant to prove that they did not conduct a HIV Test
and that there was a written consent by the Claimant’s guardian to have the HIV test
conducted and that the system they were using was new.

50. We submit that the Appellant did not adduce any such evidence before the Tribunal and
that the testimony of its witness was inconsistent.

e) The Learned Tribunal misdirected itself and erred in law and fact by disregarding
and/or misapprehending the provisions of Chapter 2 of the National Guidelines for
HIV testing and Counseling in Kenya, part headed Provider- initiated HIV testing
and Counseling and Sections 13 and 14 of the HIV and AIDS Prevention and
Control Act

51. Your Lordship, the submissions of the Appellant under this head are completely
contradictory and the HIV Tribunal dedicated itself to answering the Appellant’s
submissions under the head ‘The Legal Status of HIV testing as part of routine medical
care’ (See the Judgment on page 89 and 90 of the Record of Appeal)

52. We submit that the Appellant herein is being very selective with the HIV and AIDS
Prevention Act and the NASCOP Guidelines.

53. Section 14(2)(c)(i) and(ii) of the HIV and AIDS Prevention Act provides”

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 ‘A medical practitioner responsible for the treatment of a person may undertake an HIV
tests in respect of that person without the consent of the person if-
(i) the person is unconscious and unable to give consent; and
(ii) the medical practitioner reasonably believes that such a test is clinically
necessary or desirable in the interest of that person.

54. We concur with the determination of the HIV Tribunal and reiterate that ‘…after c(i)
there is the use of the word AND is a conjunction. We need to look at the meaning of the
word conjunction. The Cambridge dictionary simply stats “conjunctions are linking
words like AND, OR, BUT, THEN…’ Another general definition found in the Mermiam
Webster Dictionary and is said to be ‘the act or an instance of conjoining…’ Thus,
section 42(2) (c)(i) and (ii) are conjoined by the word AND. You cannot have one without
the other. This is simple English grammar. It would be mischievous to try and block
one...’

55. We also reiterate the HIV Tribunal’s determination on the NASCP Guidelines where it
provides that ‘…Prior to receiving [Provider- Initiated] HIV test, the health care
provider will explain the procedure and reasons for requesting the test to the client or
patient. Upon recommendation of the health care provider if the client or patient agrees
to learn their HIV status he/she will receive an HIV test and will be informed of their
results...

56. We submit that the NASCOP Guidelines does not provide for the arbitrary testing of all
patients including minors without the consent. Both the Act and the Guidelines support
patients/clients right to decide whether or not to be tested. If the healthcare provider gets
permission to test then she/he MUST observe the conditions laid out in law like pre-test
and pots test counseling and written consent from the parents in the case of a minor.

f) Grounds g, h, I, k and l on the Appellant’s Memorandum of Appeal

57. We submit that the HIV Tribunal relied on the law and precedent in reaching its final
decisions.

58. We submit that the learned Tribunal did not misdirect itself and relied on the law by
assessing the facts and the evidence and finally issuing the award of Kshs 1,000,000/- for
testing without consent and Kshs 500,000/ for damages for giving a wrong result.

59. We submit that it is the discretion of the Tribunal to award. The case at hand involved a
minor who went to the clinic to received medication or a cough and instead the appellant
herein through its agents took it upon themselves to test a minor for HIV because she was
thin without the consent of her parent and thereafter proceeded to give a wrong result
which showed that the minor was HIV Positive.

60. The Respondent herein suffered emotional trauma and had to re-test the minor to confirm
her HIV status. It is shown that the Respondent’s family suffered immensely as the

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 family could not come to terms as to why the hospital would test for HIV and then give a
wrong result.

61. The Respondent’s actions were careless and they failed to take note that they were
dealing with the life of a minor.

62. We submit that the Court of Appeal in the case of Andrew O Nyangweso v Alloys
Barasa & 2 others [2018] eKLR relied on the holding in the case of Edward Sargent –
versus- Chhotabhai Jhaverbhat Patel [1949] 16 EACA 63, it was held that an appeal does
lie to an appellate Court against an order made in the exercise of judicial discretion, but
the appeal Court will interfere only if it be shown that the discretion has not been
exercised judicially. The circumstances under which an appellate Court can interfere with
discretionary orders are well settled. See the case of Mbogo & Another versus Shah
[1968] E.A. 93, where it was held at page 96 that:-
  “..An appellate Court will interfere if the exercise of the discretion is clearly wrong
because the Judge has misdirected himself or acted on matters which he should not have
acted upon or failed to take into consideration and in doing so arrived at a wrong
conclusion. It is trite law that an appellate Court should not interfere with the exercise of
the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion
has misdirected himself and has been clearly wrong in the exercise of the discretion and
that as a result, there has been injustice…”

63. We submit that assessment of quantum of damages is a matter for the discretion of the
trial judge, which must be exercised judicially and with regard to the general conditions
prevailing in the country and to prior relevant decisions. See KIGARAGARI
V AGRIPINA MAYA AYA(1985) KLR 273 and SOUTHERN ENGINEERING  CO
LTD  V  MUTIA, 
(1986-1989 EA 541).    

64. Moreover, the principles which guide an appellate court in this country in an appeal on
award of damages are  now  well  settled.    In   KEMFRO AFRICA   LTD   V   LUBIA   &
ANOTHER, (No. 2) 1987 KLR 30, Kneller JA identified the principles as follows:
“The  principles   to  be  observed  by  an  appellate court   in   deciding   whether   
it   is    justified   in disturbing the quantum of damages awarded by a trial judge were
held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that
either the judge, in assessing the damages, took into account an irrelevant factor, or left
out of account a relevant one, or that , short of this, the amount is so inordinately low or
so inordinately high that it must be wholly erroneous estimate of the damage.”

65. Later in Johnson Evan Gicheru v Andrew Morton & another [2005] eKLR, this
Court reiterated the same principles in the following words:
“It is trite that this court will be disinclined to disturb the findings of a trial judge as to
the amount of damages merely because they think that if they had tried the case in the
first instance they would have given a larger sum. In order to justify reversing the trial
judge on the question of the amount of damages it will generally be necessary that this
court should be convinced either that the judge acted upon some wrong principle of law,

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 or that the amount awarded was so extremely high or so very small as to make it, in the
judgment of this court, an entirely erroneous estimate of the damage to which the
plaintiff is entitled.”(See also BUTT VS KHAN, (1981) KLR 349 and STANDARD
LTD VS KAGIA T/A KAGIA & COMPANY ADVOCATES, (2010) 2 KLR 55).

66. On the purpose of awards of damages, the Supreme Court of Uganda in CUOSSENS V
ATTORNEY GENERAL, (1999)1 EA 40, noted that the object of an award of damages is
to give an injured party compensation for the damage, loss or injury that he has suffered
and that the general rule regarding the measure of damages is that the injured party
should be awarded a sum of money as would put him in the same position as he would
have been if he had not sustained the injury.  Where the injury in question is non-
pecuniary loss, assessment of damages does not entail arithmetical calculation because
money is not being awarded as a replacement for other money; rather it is being awarded
as a substitute for that which is generally more important than money, and that is the best
that a court can do in the circumstances.

67. We submit that the award is discretionary and the HIV Tribunal has a wide range of
decisions and has given awards to its claimants based on its discretion.

68. We submit that the financial needs of the Claimant was a NONE ISSUE at the tribunal
and the financial/economic power of the Respondent was not an issue for debate but
rather the Tribunal determined the breach of the law by the Respondent’s actions of
conducting a HIV test to a minor without the written consent of the parent and thereafter
giving wrong HIV test results to the minor and the parent.

69. We also submit that the Appellant has fully settled the decretal sum and the same was
voluntarily done despite the Appellant breaking the law on res subjudice and filing
multiple applications for stay of execution in Misc Application 99 of 2018: Martha
Ngendo Kihiti –vs- Athi River Shalom Community Hospital and on the same day in
Civil Appeal No. 671 of 2017: Athi river Shalom community Hospital –vs- Martha
Ngendo Kihiti.

70. We submit that we had filed a preliminary objection noting that the Appellant herein was
forum shopping before this Honourable Court and when parties appeared before the
Honourable Lady Justice Njuguna in July 2018 in Civil Appeal No. 671 of 2017: Athi
river Shalom community Hospital –vs- Martha Ngendo Kihiti the Court noted that
two Applications had been filed by the Appellant herein seeking stay.

71. We submit that when the Honourable Lady Justice Njuguna denied the Appellant herein
their interim Orders for stay and in fact set the matter for herein on 18 th July, 2018; the
Appellant proceeded and filed a similar application demanding for the same interim
Orders using the same grounds in Miscellaneous Case No. 99 of 2018: Martha Ngendo
Kihiti –vs- Athi River Shalom Community Hospital and got interim Orders without
disclosing that a similar application had been filed.

Page 11 of 15
 72. We submit that it is extremely insensitive of the Appellant to allege that the trauma of
learning that your child is HIV Positive is self-inflicted and failed to appreciate the extent
of their breach and actions against the minor.

73. We submit that the Appellant is a hospital hence a corporation with means as it collects
its finance from its patients and has not filed for bankruptcy.

74. We submit that pray that your Lordship to find that the Appellant’s claim in the Appeal is
not merited and should be dismissed with costs.

g) The Learned Tribunal misdirected itself and erred in law and fact by ignoring the
Appellant’s written submission on record and all relevant pertinent issues raised
therein and failing to address and analyze in line with the law and evidence
presented, any of all the raised relevant pertinent issues properly and lawfully in its
judgment.

75. We submit that that both parties filed comprehensive written submissions during trial and
the learned Tribunal CONSIDERED all submissions and all the issues raised were
substantially and conclusively determined. (See the judgment of page 85 to 95 of the
Records of Appeal)

76. We submit that it is false for the Appellant to state that the Respondent was satisfied with
the results when in fact the Respondent testified and gave evidence that she had to make
arrangement to re-test the minor and know the actual HIV test results. (see pages 26 and
2 of the Record of Appeal)

C. CONCLUSION
77. We submit that the Appeal against the Award of the Tribunal have been overtaken by
events as the Award of the HIV & AIDS Tribunal was adapted as an Order of the Court
on 7th May 2018.

78. The Appellant through its insurer, PACIS Insurance Company Limited forwarded to the
Respondent’s Advocates herein its cheques Nos. 041550 for Kshs 751, 225.00 and
cheque No. 041548 for Kshs 751,225/- and a final cheque no. 041551 for Kshs 180,000/-
in favour of the Auctioneers Kiriiyu Merchants who had sought to execute the Decree.

79. We submit that the Appellant has admitted liability by settling the decretal sum.

80. We submit that the Appellant herein has not demonstrated any of the grounds in its
Memorandum of Appeal.

81. The Appeal is not merited and should be dismissed in it’s entirely with costs to the
Respondent.

DATED at NAIROBI this ………. 9th ……………day of ……..September ……………….2019

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Princess Park, Flat No. 15
off Ngong Road, off Kabarnet Road
P.O.Box 38154-00100
NAIROBI
Email: musundib@yahoo.com

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 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MILIMANI LAW COURTS
CIVIL APPEAL NO. 671 OF 2017

ATHI RIVER SHALOM COMMUNITY HOSPITAL.………………………. APPELLANT

VERSUS

MARTHA NGENDO KIHITI .………………………………………………RESPONDENT

(An appeal from the Judgment of the HIV & AIDS Tribunal delivered on the 10th day of
November, 2017 in HAT Case No. 002 of 2017)

BETWEEN
MARTHA NGENDO KIHITI ……………………………………………………CLAIMANT

VERSUS

ATHI RIVER SHALOM COMMUNITY HOSPITAL…………………….. RESPONDENT

RESPONDENT’S LIST OF AUTHORITIES
DOCUMENTS
1. Copies of cheques Nos. 041550 for Kshs 751, 225.00 and cheque No. 041548 for Kshs
751,225/- and a final cheque no. 041551 for Kshs 180,000/- in favour of the Auctioneers
Kiriiyu Merchants who had sought to execute the Decree.
2. Copy of letter dated 26th July 2018.

ACTS/STATUTES
1. HIV and AIDS Prevention and Control Act Cap 264 of the Laws of Kenya

CASE LAW
1. Republic v Kajiado North District Ngong Land Disputes Tribunal & another Ex-Parte
Caroline Wambui Ngunjiri & 2 others [2014] eKLR
2. Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others [2015] eKLR
3. Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] eKLR
4. Andrew O Nyangweso v Alloys Barasa & 2 others [2018] eKLR
5. Johnson Evan Gicheru v Andrew Morton & another [2005] eKLR

DATED at NAIROBI this ………. 9th ……………day of ……..September ……………….2019

LUMUMBA & LUMUMBA

ADVOCATES FOR THE RESPONDENT

DRAWN AND FILED BY:-

Lumumba & Lumumba
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Advocates
4th Avenue Towers, 15th Floor, Suite No. 3
4th Ngong Avenue
P.O.Box 10676-00400
NAIROBI
Email: info@lumumbalaw.com
Tel: 0710409145

TO BE SERVED UPON:
Magare Musundi & Company
Advocates
Princess Park, Flat No. 15
off Ngong Road, off Kabarnet Road
P.O.Box 38154-00100
NAIROBI
Email: musundib@yahoo.com

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