The Kenya Defence Forces has faced a legal defeat after the High Court dismissed its appeal challenging a ruling that found it discriminated against a recruit because of his HIV status.
The court on Tuesday upheld the July 2024 decision by the HIV and AIDS Tribunal, which awarded PKJ Sh1 million in damages and instructed the military to review its recruitment procedures.
The dispute dates back to December 2021, when PKJ underwent an HIV test during the KDF recruitment process without giving informed consent.
Despite being medically cleared and issued a formal call-up letter to join training at Eldoret Recruits’ Training School, he was dismissed shortly after reporting for duty.
In court, he described how officers publicly disclosed his HIV-positive status before other recruits, telling him to “seek treatment” rather than continue with military service. He contended that this treatment violated his rights to privacy, dignity, and fair administrative action while disregarding the mandatory HIV testing protocols under Kenyan law.
The State had argued that the tribunal lacked jurisdiction, claiming disputes related to employment should be handled by the Employment and Labour Relations Court. The High Court disagreed, noting that the central issue concerned breaches of the HIV and AIDS Prevention and Control Act, not employment terms.
“The predominant issue was not employment, rather, how the KDF officers handled the respondent’s HIV status,” the judgment stated. The court also dismissed claims that the tribunal overstepped its role by requiring KDF to amend its regulations and recruitment practices.
KDF maintained that recruits sign consent forms for medical examinations, but the court found no evidence that PKJ had specifically authorized HIV testing or received the mandatory pre- and post-test counselling.
With the appeal rejected, the military is required to pay the damages and implement reforms in its enlistment process. Legal observers suggest the ruling may influence future cases in the public sector, particularly those involving workplace HIV policies and the rights of employees and recruits.
The judgment reinforces the principle that organizations, including state institutions, must follow legal procedures for HIV testing and safeguard the privacy and dignity of individuals.
It also sets a precedent for how public bodies handle medical information and underscores the legal protections available to those living with HIV in employment and recruitment contexts.
