The High Court has declared that the Kenya Defence Forces (KDF) unlawfully dismissed a recruit based solely on his HIV status, a ruling poised to transform recruitment practices across Kenya’s public service.
The judgment, stemming from a petition filed by the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN), on behalf of the individual identified as PKJ, asserts that HIV status alone cannot be grounds for exclusion from national service.
The historic ruling, delivered in Petition E028 of 2022, marks a significant milestone in the fight against institutional HIV stigma, particularly within Kenya’s disciplined forces.
“This ruling affirms that people living with HIV have an equal right to serve their country without fear of discrimination,” stated Allan Maleche, Executive Director of KELIN. He added that it’s “a significant step in dismantling the deep-rooted stigma that has long kept many Kenyans from pursuing careers in the military and other public institutions.”
PKJ had successfully completed both medical and physical assessments during a KDF recruitment drive and received a formal calling letter. However, upon reporting to the Recruits Training School, he was dismissed. Crucially, officers allegedly disclosed his HIV status publicly to fellow recruits, causing him humiliation and psychological distress.
KELIN argued that the dismissal violated several constitutional provisions, including Article 27 (equality and freedom from discrimination), Article 28 (human dignity), and Article 41 (fair labour practices). They also contended that PKJ’s right to fair administrative action under Article 47 was breached due to the KDF’s lack of lawful and transparent procedure in his removal.
The Respondents, including the Cabinet Secretary for Defence, the Chief of the Kenya Defence Forces, and the Defence Council, contested the claims, questioning the authenticity of PKJ’s recruitment documents and denying any public disclosure of his HIV status.
However, the court rejected these arguments, ruling that PKJ had indeed been recruited and that his dismissal constituted “direct discrimination.” The Court further emphasized that “The act of publicly disclosing the Petitioner’s HIV status was not only insensitive but also degrading and humiliating. The KDF’s actions violated the Petitioner’s right to dignity and lacked any medical or legal justification.”
Beyond a personal remedy, the court directed the KDF to enlist PKJ in the next recruitment exercise unless valid and lawful reasons, communicated in writing, exist otherwise. In a pivotal move towards systemic reform, the Court ordered the Ministry of Defence and KDF leadership to publish a constitutionally compliant policy on the recruitment and retention of persons living with HIV within 90 days and to report back to the court within 120 days.
Legal experts laud the judgment for its potential to set a powerful precedent. Anne Ireri, a human rights lawyer, remarked, “This is more than just a personal victory for the Petitioner. It establishes that public institutions—including the military—must align their internal practices with the Bill of Rights.”
The ruling is anticipated to influence not only military policy but also the broader public sector, where HIV-related discrimination persists. For advocates and people living with HIV, this decision offers both vindication and a clear call to action.
As Maleche concluded, “This win is not just for one individual. It is for every Kenyan who has ever been denied an opportunity simply because of their HIV status. The Constitution protects all of us—and today, the court made that protection real.”
