In a landmark judgment that sends shockwaves through Kenya’s security sector, the High Court has upheld a ruling faulting the Kenya Defence Forces (KDF) for illegally testing a recruit for HIV and dismissing him from training solely because of his status.
Justice Antony Mrima, delivering judgment in Civil Appeal No. E904 of 2025 at the Milimani Law Courts, dismissed an appeal filed by the Attorney General, the Ministry of Defence, and KDF—affirming the HIV & AIDS Tribunal’s decision that the military violated the rights of a young man identified in court documents as PKJ.
According to the Tribunal’s earlier findings, KDF officers subjected PKJ to an HIV test without his consent, failed to provide mandatory pre- and post-test counselling, and then dismissed him from Eldoret Recruit Training School in January 2022 after announcing—in front of other recruits—that he was HIV-positive.
PKJ told the Tribunal that he and several others were abruptly called out by officers, informed of their status in public, and ordered to leave the camp immediately. He argued that the ordeal amounted to blatant discrimination and unlawful disclosure, both barred under the HIV and AIDS Prevention and Control Act.
The Tribunal agreed and awarded him Sh1.05 million in damages, also directing KDF to overhaul its recruitment procedures to align with the law.
The State appealed the ruling, insisting that:
The Tribunal lacked jurisdiction
Key documents were unverified
The recruit had “consented” by signing an enlistment form
The Tribunal had improperly shifted the burden of proof
But Justice Mrima dismissed every argument.
He affirmed that the Tribunal was the correct forum because the case revolved around HIV-related rights violations, not employment disputes requiring the intervention of the Employment and Labour Relations Court.
He also upheld the admission of contested documents, emphasising that the Tribunal is empowered to accept any relevant evidence—even where strict rules of evidence might ordinarily reject it.
The judge sharply criticised the military for failing to produce:
A signed consent form
Medical records
Testimony from personnel who allegedly conducted the test
This failure, he said, strengthened PKJ’s case and demonstrated that the State had no credible defence.
Justice Mrima ruled that PKJ had been treated differently solely because of his HIV status, with the State offering no medical, scientific, or operational justification for excluding him.
“The Respondent was discriminated against on account of his health status,” the judge declared, noting that the conduct violated Articles 27 and 47 of the Constitution, which protect equality, dignity, and fair administrative action.
The ruling reinforces Kenya’s legal protections for people living with HIV and sends a message to all State agencies—including the disciplined forces—that compulsory testing, public disclosure, and health-based discrimination are illegal.
For KDF, it is a stern reminder that even military procedures are not above the Constitution.
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