High Court upholds ruling against KDF for HIV discrimination in recruitment
The Tribunal had earlier found that KDF officers subjected him to HIV testing without consent, failed to provide mandatory pre- and post-test counselling, and dismissed him from training on account of his HIV status in January 2022.
The High Court has dismissed an appeal by the Attorney General, the Ministry of Defence, and the Kenya Defence Forces (KDF) and upheld a decision faulting the military for unlawfully testing a recruit for HIV and discriminating against him during enlistment.
Justice Antony Mrima, sitting at the Milimani Law Courts, delivered the judgment in Civil Appeal No. E904 of 2025, affirming the HIV & AIDS Tribunal's finding that KDF violated the rights of a recruit identified in court papers as PKJ.
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The Tribunal had earlier found that KDF officers subjected him to HIV testing without consent, failed to provide mandatory pre- and post-test counselling, and dismissed him from training on account of his HIV status in January 2022.
PKJ told the Tribunal that after presenting himself for training at the Eldoret Recruit Training School, he and several others were called out by officers, publicly informed they were HIV-positive, and ordered to leave the camp. He argued that this amounted to unlawful disclosure and discrimination, contrary to the HIV and AIDS Prevention and Control Act.
The Tribunal agreed and awarded him Sh1.05 million in damages while directing KDF to review its recruitment procedures to comply with the law.
The State agencies appealed, arguing that the Tribunal lacked jurisdiction and that it improperly admitted unverified documents, including a calling letter and medical forms. They further claimed the recruit had consented to testing by signing an enlistment form and that the Tribunal wrongly shifted the burden of proof.
But Justice Mrima rejected all grounds of appeal. He ruled that the Tribunal was the proper forum for the dispute because the complaint centred on HIV-related rights—specifically compulsory testing, lack of counselling, and unlawful disclosure—not employment matters requiring the intervention of the Employment and Labour Relations Court.
He emphasised that the Tribunal's mandate includes determining violations related to HIV rights and enforcing protections under the Act.
The judge also upheld the Tribunal's decision to admit the contested documents, noting that the law allows the Tribunal to rely on any relevant evidence even where strict rules of evidence would normally bar it.
He faulted KDF for failing to produce key documents, including signed consent forms or testimony from medical personnel, to rebut PKJ's claims.
On discrimination, the court found that the recruit proved he was treated differently solely because of his HIV status, and the State had offered no medical or operational justification for excluding him from service.
"The Respondent was discriminated against on account of his health status," Justice Mrima affirmed, noting that the conduct violated Articles 27 and 47 of the Constitution.
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