The High Court has upheld a Sh1.05 million compensation awarded to a recruit who was dismissed from the KDF training school in Eldoret after testing positive for HIV.
Justice Anthony Mrima, in his judgment, agreed with the HIV Tribunal that the man, identified only as PKJ, was illegally subjected to the test and was not offered post-test counseling.
He also noted that there was no evidence to suggest that PKJ was incapable of working because of his medical condition.
"Further, the appellants did not provide any evidence, medical, technical, or otherwise, to show that, given the nature of the service, persons who are HIV positive are unsuitable to serve in the KDF. Had such evidence been presented, the position might have been different. Since the respondent was not given any reason or explanation for why he could not continue with training, other than his HIV-positive status, this amounts to unjustified differential treatment, which infringes Articles 27 and 47 of the Constitution and the Act," said Justice Mrima.
In the case, PKJ believed he was just two feet away from his dream career with the Kenya Defence Forces. But after only seven days as a recruit, he was told to pack and leave.
Now, his determination to pursue his dream could pave the way for the military to open doors for others who were turned away due to medical conditions.
He told the court that he was dismissed in front of other recruits and given only Sh1,000 for fare home because of his HIV status.
The Attorney General, however, argued that the Tribunal had no jurisdiction to hear the case. It also contended that the 90-day order directing the KDF to review its recruitment regulations would infringe on Parliament's law-making powers. According to the petitioner, in November 2021, while still serving at the National Youth Service (NYS), he applied to join the KDF.
On November 24, 2021, he attended an interview for enlistment into the KDF and underwent a medical examination at the NYS headquarters, a designated recruitment centre. He lamented that the tests included HIV screening, yet he was not offered pre-test or post-test counselling.
Despite this, he was among those who successfully transitioned from the Youth Service to the disciplined forces.
He reported to the Eldoret training school on Christmas Day 2021, as instructed in his calling letter. On boxing day, he was subjected to further medical tests. Again, the KDF personnel did another HIV test.
The man said he stayed at the recruits' training school until January 2, 2022, when he was informed in the presence of other recruits that his journey had ended. He was dismissed from the service. He argued that he was humiliated in the presence of other recruits by having his status disclosed publicly.
In its response, KDF called its record officer to testify. The officer, a Major, admitted that the complainant was among those who had been recruited.
He testified that although the recruit's medical report, notice paper, certificate of recruiting officer and attestation paper were similar to the calling letter issued by KDF to successful candidates, they were not from DoD since the recruitment officer collects them during the recruitment exercise due to their confidential nature.
He argued that there is a possibility the man was a victim of fraud. The military officer, however, admitted that during the background check, he did not call NYS to find out whether the man was recruited from there.
However, the Tribunal overruled its argument after finding that it would only settle the dispute on HIV. The Tribunal noted that scientific advancements have been made in treatment with tremendous benefits to those infected with the virus.
Anti-retroviral treatment (ART) not only reduces death among HIV-infected people, but also reduces the frequency of illness and improves their quality of life leading to them living normal lives and working without interference.
"We find that the Respondent's act of releasing the Claimant from the Recruit Training School solely based on his HIV status is discriminatory and a violation under Section 31 of the HIV and AIDS Prevention and Control Act," it ruled.
It awarded the petitioner Sh400,000 for KDF's failure to have his consent. At the same time, KDF was ordered to pay him Sh250,000 for not subjecting him to pre and post-HIV testing counselling. It was also directed to pay Sh400,000 for discrimination.