Nairobi Court Acquits Man Charged With Willful HIV Transmission
"The court cannot fill the gap that during the material period the accused's viral load was high," the magistrate said.
A Nairobi court has acquitted a man who was charged with knowingly and willfully transmitting HIV to another person through unprotected sexual contact.
The Milimani Principal Magistrate, Rose Ndombi, acquitted XML after reviewing the evidence presented before her and noted the prosecution did not present their case beyond reasonable doubt.
“Considering the evidence produced before this court under Section 26 of the Sexual Offenses Act, the prosecution did not produce a prima facie case against the accused,” the Magistrate said.
The court also noted that the complainant PQR, who is a medical practitioner, tested negative whilst at the same time during the trial the accused tested positive.
During the hearing of the case, a medical practitioner confirmed that the accused person had been attending treatment at Coptic Hospital. The court heard that he was diagnosed to be positive on July 9, 2020.
The accused was charged on various dates between October 2022 and June 30, 2025, within the country knowingly and intentionally engaged in unprotected sex with the complainant while aware that he was under HIV medical care.
The complainant testified that she learned about the condition of the accused through his wife, who informed her that the accused had been HIV positive for several years.
To confirm the allegations by the complainant, the court ordered the accused’s samples to be taken to Kenyatta National Hospital, where the doctor confirmed he was HIV positive.
In his defense, the accused called a medical practitioner, who testified that the accused had adhered to the treatment to a point in which his viral load reached to zero and the record showed that it was consistent.
“The viral load reaching to zero means that the virus that exists in the blood is undetectable and thus non-transmissible,” he told the court.
The officer admitted before the court that he was a specialist in transmissible diseases but not HIV.
Regarding the defense’s testimony, the court indicated that it could not rely on the medical officer’s testimony, since he admitted not to be an HIV expert.
While analyzing the issues for determination, the magistrate indicated that the prosecution had failed to prove beyond reasonable doubt that during the said period the accused’s viral load was consistently to zero or not.
“The court cannot fill the gap that during the material period the accused’s viral load was high,” the magistrate said.
The court also stated that it could not tell whether the accused during the material period, despite being positive about whether he could transmit the virus to the complainant or not.
In determination, the court acquitted the accused, indicating that the doubts arising in the matter would befall in favor of the accused and proceeded to acquit him.
