1. James Mark, the appellant herein, was convicted of the offence of deliberate transmission of HIV contrary to section 26 (1) (a) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on diverse dates between the 1st day of September 2023 and the 1st day of October 2023, at Oruba village, Suna West sub-county within Migori County, having actual Knowledge that he was that he was infected with HIV, intentionally Knowing and wilfully and needle pricked S.N.G., a child aged twelve years, which he knew or ought to have reasonably known was likely to lead S.N.G. to be infected with HIV.
3. The appellant was sentenced to serve thirty years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) That the trial court erred both in law and fact by not complying with Article 50(2) (g) (h) of the Kenyan Constitution 2010.
b) That the trial court erred in both law and fact by not considering that the ingredients of the case herein were not proved to the required standard in law and fact.
c) That the trial court erred in both law and fact by meting out a harsh and excessive sentence in the circumstances by not considering the appellant’s defence and mitigations.
4. The state did not file any grounds of opposition or submissions.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. An offence ofdeliberate transmission of HIV is established against an accused person when the prosecution has proved the following ingredients:
a) The accused was infected with HIV and/or a sexually transmitted infection.
b) That the accused had knowledge of their infection status at the time of the act.
c) That the accused intentionally, deliberately, knowingly and wilfully did an act or conducted him/herself in a manner that exposed the complainant to the risk of infection. It is important to note that actual transmission is not mandatory. The act must be deliberate and not negligent and/or accidental.
d) The accused failed to disclose the infection to the complainant.
7. I will determine if the prosecution proved these ingredients to the required standards.
8. S.N.G. (PW1), the complainant, testified that her grandfather was the appellant. She stated that in September (likely 2023, as she testified on November 21, 2023), both she and the appellant’s daughter contracted malaria. She claimed that the appellant injected them in the buttocks with a needle containing blood. He then told them not to tell anyone. Her evidence was that the appellant had defiled her and used to kiss her on the mouth. Although she did not specify who the other person was who had been kissed, the assumption is that it was the appellant’s daughter, as she had mentioned earlier. During cross-examination, she said that the appellant defiled his daughter, E.
9. The allegations against the appellant were indeed serious. The prosecution failed to provide any explanation as to why he was not charged with the offences involving the defilement of the two minors. It remains unclear whether the investigating officer doubted the minor's testimony, as there was no evidence to support such a decision. However, D.M.PW4, the complainant’s mother, testified that she took her to the hospital on 9 October 2023 after the appellant’s son Joseph Mark, who is her husband, had defiled the minor.
10. James Mark, the appellant, denied any involvement in the offense. He claimed he was falsely accused by the complainant’s mother because he opposed her marriage to his son Joseph Mark, who was still in school.
11. E., the appellant’s daughter, was a very material witness in this case. She was not called to testify, yet it was alleged that both she and the complainant herein were injected with blood. This omission is fatal to the prosecution's case. The Court of Appeal in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held:
The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
12. In this case, I am satisfied that if E. had testified, her evidence would likely have been detrimental to the prosecution's case.
13. Even if we accept that the complainant's account of the injection is accurate, the claim of defilement by her stepfather, Joseph Mark, was not investigated to determine if it was the source of the HIV infection.
14. The conclusion from the earlier analysis of the available evidence is that the prosecution did not meet the necessary burden of proof. As a result, the conviction is quashed, and the sentence is set aside. The appellant is released unless there are lawful reasons to detain him.
Delivered and signed at Migori on this 23rd day of February 2026
2. The particulars of the offence are that on diverse dates between the 1st day of September 2023 and the 1st day of October 2023, at Oruba village, Suna West sub-county within Migori County, having actual Knowledge that he was that he was infected with HIV, intentionally Knowing and wilfully and needle pricked S.N.G., a child aged twelve years, which he knew or ought to have reasonably known was likely to lead S.N.G. to be infected with HIV.
3. The appellant was sentenced to serve thirty years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) That the trial court erred both in law and fact by not complying with Article 50(2) (g) (h) of the Kenyan Constitution 2010.
b) That the trial court erred in both law and fact by not considering that the ingredients of the case herein were not proved to the required standard in law and fact.
c) That the trial court erred in both law and fact by meting out a harsh and excessive sentence in the circumstances by not considering the appellant’s defence and mitigations.
4. The state did not file any grounds of opposition or submissions.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. An offence ofdeliberate transmission of HIV is established against an accused person when the prosecution has proved the following ingredients:
a) The accused was infected with HIV and/or a sexually transmitted infection.
b) That the accused had knowledge of their infection status at the time of the act.
c) That the accused intentionally, deliberately, knowingly and wilfully did an act or conducted him/herself in a manner that exposed the complainant to the risk of infection. It is important to note that actual transmission is not mandatory. The act must be deliberate and not negligent and/or accidental.
d) The accused failed to disclose the infection to the complainant.
7. I will determine if the prosecution proved these ingredients to the required standards.
8. S.N.G. (PW1), the complainant, testified that her grandfather was the appellant. She stated that in September (likely 2023, as she testified on November 21, 2023), both she and the appellant’s daughter contracted malaria. She claimed that the appellant injected them in the buttocks with a needle containing blood. He then told them not to tell anyone. Her evidence was that the appellant had defiled her and used to kiss her on the mouth. Although she did not specify who the other person was who had been kissed, the assumption is that it was the appellant’s daughter, as she had mentioned earlier. During cross-examination, she said that the appellant defiled his daughter, E.
9. The allegations against the appellant were indeed serious. The prosecution failed to provide any explanation as to why he was not charged with the offences involving the defilement of the two minors. It remains unclear whether the investigating officer doubted the minor's testimony, as there was no evidence to support such a decision. However, D.M.PW4, the complainant’s mother, testified that she took her to the hospital on 9 October 2023 after the appellant’s son Joseph Mark, who is her husband, had defiled the minor.
10. James Mark, the appellant, denied any involvement in the offense. He claimed he was falsely accused by the complainant’s mother because he opposed her marriage to his son Joseph Mark, who was still in school.
11. E., the appellant’s daughter, was a very material witness in this case. She was not called to testify, yet it was alleged that both she and the complainant herein were injected with blood. This omission is fatal to the prosecution's case. The Court of Appeal in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held:
The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
12. In this case, I am satisfied that if E. had testified, her evidence would likely have been detrimental to the prosecution's case.
13. Even if we accept that the complainant's account of the injection is accurate, the claim of defilement by her stepfather, Joseph Mark, was not investigated to determine if it was the source of the HIV infection.
14. The conclusion from the earlier analysis of the available evidence is that the prosecution did not meet the necessary burden of proof. As a result, the conviction is quashed, and the sentence is set aside. The appellant is released unless there are lawful reasons to detain him.
Delivered and signed at Migori on this 23rd day of February 2026