Justice prevails as court stops unfounded HIV transmission charges
On October 7, 2024, the Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN) secured a significant victory, stopping the prosecution of P.K.K, a domestic worker living with HIV. Charged with attempting to transmit HIV to her employer and family by allegedly spitting on their food, P.K.K. faced accusations under Section 26(a) of the Sexual Offences Act (SOA), which criminalizes deliberate HIV transmission.
The case encountered repeated delays, with hearings on May 8 and August 14, 2024, adjourned due to the absence of the complainant—the prosecution’s primary witness. Furthermore, the Investigating Officer withheld critical evidence from P.K.K., violating Article 50(j) of the Constitution, which guarantees the right to a fair trial and access to prosecution evidence.
KELIN’s legal team pursued the release of key evidence, including CCTV footage, during court proceedings on September 9 and October 7, 2024. Ultimately, the court dismissed the case under Section 87A of the Criminal Procedure Code (CPC), which allows for the withdrawal of prosecution in subordinate courts. Although the dismissal concludes current proceedings, it leaves open the possibility of future charges based on the same allegations.
Reflecting on the outcome, P.K.K. expressed her relief: “The charges were unfounded and did not align with the alleged actions. I categorically deny ever spitting in my employer’s food or engaging in any act that could transmit HIV. This ordeal was rooted in stigma, not fact.”
Namulanda from KELIN commented on the broader implications of the case: “This case highlights the troubling impact of Section 26(a) of the SOA, which has been repeatedly misused to harass people living with HIV. Criminalizing HIV transmission without scientific backing only deepens stigma. Advances in HIV science confirm that saliva, including spitting, poses absolutely no risk of HIV transmission.”
KELIN remains committed to challenging outdated and discriminatory laws, advocating for policies informed by accurate science, and promoting justice for persons living with HIV. KELIN’s ongoing appeal in EM & Others v. Attorney General seeks to address the constitutionality of Section 26(a), ensuring the law reflects current HIV knowledge and protects human rights for all
