‘affording different treatment to different persons attributablewholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one suchdescription are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description’.
To warrant protection from discrimination it must be proven that:-a)treatment in a discriminatory manner was done by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority; and b)different treatment was afforded to different personsand was attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, or residence or other local connection, political opinion,colour, creed or sex.
3.INADEQUACY OF CONSTITUTIONAL PROTECTION FROM DISCRIMINATION
Would different treatment of a HIV person by a person not acting by virtue of any written law or in the performance of the functions of a public office or a public authority on grounds of their medical conditionentitle such person to protection from discrimination under Section 82of the Constitution?
The High Court (Mugo Ag. J) in J. A. O.- v - Homepark CaterersLtd & 2 others Nairobi - High Court Civil Case No. 38 of 2003
(unreported) in dealing with an application wherein discrimination ongrounds of HIV status was in question observed that:-
‘treatment of HIV/AIDS patients by doctors, hospitals,employers and others has been put under legal scrutiny ( inother jurisdictions) with a view to moulding attitudes and public policy such that the same would be free of discriminatory tendencies’.