Jtk v Republic

4. Additionally, the prosecution proffered an alternative count of committing an indecent act with a child, contrary to section 11(1) of the Act. This alternative count alleged that the appellant intentionally touched the vagina of M.N.G., described therein as a child aged 17 ½ years, with his penis. 5. The Appellant entered a plea of not guilty to all charges, thereby placing the burden upon the prosecution to prove every essential element of the offences beyond a reasonable doubt. Following a full trial wherein the prosecution called 4 witnesses and the Appellant offered an unsworn defence without calling any witnesses, the trial court delivered judgment on January 27, 2022. The trial court found the prosecution had discharged its evidentiary burden and proceeded to convict the Appellant on both main counts. 6. Consequently, the trial court sentenced the Appellant to serve a term of 10 years imprisonment for the offence of rape (Count I) and 15 years imprisonment for the offence of Deliberate Transmission of HIV (Count II). The prison committal records indicate that these sentences were construed to run consecutively, subjecting the Appellant to an aggregate custodial term of 25 years. 7. Aggrieved by both the conviction and the severity of the sentence, the Appellant filed a Memorandum of Appeal, subsequently amended, raising multiple grounds challenging the factual findings and legal conclusions of the trial court. In response, the Respondent, not only opposed the appeal through written submissions but also filed a Notice of Enhancement, praying that this Court enhances the sentences to life imprisonment in accordance with the statutory provisions of the Act. Prosecution’s Case 8. The prosecution’s narrative was primarily constructed upon the testimony of the complainant, M.N.G., who testified as PW1. PW1 recounted that in September 2020, on a specific day and date she could not recall, the Appellant, who was a neighbour residing in a ground-floor unit of the same multi-tenant plot, sent her to purchase paraffin. Upon her return to deliver the paraffin, the Appellant allegedly pulled her into his house, locked the door, and commenced a sexual assault. PW1 testified that the appellant removed her clothes, laid her on the bed, and forcefully penetrated her vagina with his penis. She averred that she resisted and attempted to scream but was overpowered and unable to attract assistance. 9. According to PW1, the ordeal lasted for over 2 hours. Upon its conclusion, she dressed herself and returned to her family's residence within the same plot. She testified that she did not disclose the incident to her mother or anyone else at the time because the Appellant had issued a threat to kill her if she revealed what had transpired. PW1 further testified that it was not her first time having sexual intercourse. 10. The immediate aftermath of the alleged incident passed without report. However, PW1 testified that she failed to see her menstrual periods in October and November 2020 and began experiencing abdominal pain. The situation escalated on November 22, 2020, when the abdominal pains became unbearable, accompanied by profuse vaginal bleeding. After an initial unsuccessful attempt to seek medical attention at the closed Athena Health Centre, her mother took her to Kiandutu Health Centre the following day. 11. At the Health Centre, the clinical realities of the situation were documented by PW3, Patrick Munyua, a Clinical Officer. PW3 testified that upon examining PW1 on November 24, 2020, he observed that she was bleeding from the vagina, her hymen was not intact, and her cervix was open. Laboratory and urine tests conducted at the facility revealed two critical findings: first, PW1 was pregnant and experiencing an incomplete abortion, necessitating a medical procedure to clean the remains of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 2

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pregnancy; and second, a rapid diagnostic test revealed that PW1 was HIV positive. PW3 produced the complainant’s treatment notes, laboratory test results, a P3 form, and a Post Rape Care (PRC) form as exhibits before the trial court. 12. The complainant’s mother, testifying as PW2, corroborated the sequence of events leading to the hospital visit and the subsequent diagnosis. PW2 testified that she and her husband were HIV negative, and that PW1 was born HIV negative. Crucially, PW2 asserted that PW1 was a member of a nongovernmental organization program known as "Dreams," which provided peer education and allegedly conducted HIV tests on its members every 3 months. According to PW2, PW1’s prior tests under this program had consistently returned negative results, implying that the infection was recently acquired. Following the medical revelations, PW1 was taken to Thika Level 5 Hospital for confirmatory testing, where the HIV positive diagnosis was reaffirmed, leading PW1 to disclose the alleged September rape by the Appellant. 13. The investigative phase was detailed by PW4, Police Constable Steven Mbiti, who testified that a formal report of rape and deliberate HIV infection was received on December 23, 2020. Acting on this report, PW4 arrested the Appellant and escorted him to Thika Level 5 Hospital for an HIV test. The test confirmed that the Appellant was HIV positive. PW4 testified that during interrogation, the Appellant admitted to being HIV positive and stated he was already on Antiretroviral (ARV) medication, though he vehemently denied the allegations of rape. The Police subsequently formally charged the Appellant. The Defence 14. Upon the close of the prosecution's case, the trial court found that a prima facie case had been established and placed the appellant on his defence. Electing to give an unsworn statement without calling any supporting witnesses, the Appellant, testifying as DW1, presented a defence of alibi and fabricated charges. 15. The Appellant testified that he was employed as a matatu tout, a profession that demanded he leave his residence at dawn and return late in the evening. He averred that on the evening of December 27, 2020, he arrived home at approximately 6:00 p.m. and was served tea by his wife. Shortly thereafter, he heard a loud knock on the door. Upon opening it, three men, one armed with a gun, entered the premises. These individuals, who were later identified as police officers, confiscated his television set, a charger, and a computer CPU, indicating a suspicion that the electronics were stolen. The Appellant was then arrested and escorted to a waiting motor vehicle. 16. It was during the transit to the police station, the Appellant asserted, that the nature of his arrest shifted, and he was informed for the first time that he was being accused of defiling a student. He further testified that upon the compulsory medical examination determining his HIV positive status, an Investigating Officer explicitly threatened to ensure he was sent to jail. The appellant maintained that he was entirely innocent of the charges and that it was factually impossible for him to have committed the offence during the day as alleged, given his employment schedule and the densely populated nature of the residential plot. The Appeal 17. The Appellant’s amended Memorandum of Appeal and subsequent written submissions consolidated his grievances into several pivotal grounds of law and fact. First, he contended that the trial court erred in convicting him despite the prosecution's case being riddled with incurable contradictions and inconsistencies, particularly concerning the exact date of the offence, the nature of the medical emergency, and the plausibility of the delayed reporting. Second, he argued that the main prosecution witness (PW1) was irredeemably incredible and that her testimony regarding the timeline of the HIV https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 3

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infection contradicted established scientific knowledge regarding the HIV window period. Third, the Appellant submitted that the prosecution failed to prove its case beyond a reasonable doubt, highlighting the absence of DNA or paternity testing to connect him to the aborted pregnancy, and the lack of phylogenetic strain matching to prove he was the source of the HIV infection. Fourth, he argued that the trial court unlawfully disregarded his cogent defence of alibi. Finally, he contended that the consecutive sentences imposed were harsh, excessive, and violated the legal principle against consecutive sentencing for offences arising from a single transaction. 18. Conversely, the Respondent’s written submissions staunchly defended the trial court's judgment. The Respondent argued that the essential elements of rape—penetration without consent—were conclusively established by PW1’s testimony and corroborated by the clinical findings of PW3. Regarding the deliberate transmission of HIV, the Respondent submitted that the evidence of PW1’s prior negative status, coupled with the Appellant’s confirmed positive status, sufficiently proved the charge under Section 26 of the Act. The Respondent further contended that identification was by recognition, eliminating any risk of mistaken identity, and that any minor contradictions in the prosecution's evidence did not vitiate the core of the case. Through its Notice of Enhancement, the Respondent urged this Court to apply the mandatory minimum provisions of the Act and enhance the sentences to life imprisonment. Analysis & Determination 19. Before embarking on an analysis of the substantive grounds of appeal, it is necessary to delineate the jurisdiction and duty of this Court as a first appellate court. The parameters of this duty are firmly entrenched in Kenyan criminal jurisprudence. As articulated in the locus classicus case of Okeno v Republic EA 32, a first appellate court is bound to consider the evidence adduced before the trial court, evaluate it comprehensively, draw its own inferences, and reach its own independent conclusions regarding the guilt or innocence of the appellant. 20. This Court is mindful of the caveat that it did not have the distinct advantage of observing the demeanour of the witnesses as they testified in the trial court. Consequently, appellate courts must demonstrate a measure of deference to the trial court's findings of fact where such findings are hinged purely on the credibility of a witness's physical presentation. However, this deference is not absolute. Where it is apparent that the trial court failed to account for material inconsistencies, misapprehended the law, or drew conclusions that are unsupportable by the weight of the recorded evidence, it becomes the solemn duty of the appellate court to interfere and substitute its own findings. The analysis that follows is conducted with strict adherence to this rigorous standard of comprehensive re-evaluation. 21. The grounds of appeal advanced by the Appellant and the counter-arguments posited by the Respondent raise profound questions touching upon constitutional fair trial rights, the reliability of visual recognition, the threshold for scientific proof in criminal cases, and the application of sentencing guidelines. These issues are systematically evaluated below. Constitutional Fair Trial Rights and Non-Disclosure of Evidence 22. A foundational grievance raised by the Appellant touches upon a fundamental constitutional breach: the failure of the prosecution to supply the defence with critical documentary evidence prior to or during the trial. The Appellant submitted that the treatment notes, the P3 form, and the Post Rape Care (PRC) form, which were produced by the clinical officer (PW3) as exhibits to corroborate the rape and the medical findings, were never provided to him. He argued that this omission infringed upon his right to a fair hearing as enshrined in Article 50(2)(c) and (j) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 4

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23. Article 50(2) of the Constitution is the bedrock of criminal justice in Kenya, guaranteeing every accused person the right to a fair trial. Specifically, Article 50(2)(c) guarantees the right to have adequate time and facilities to prepare a defence, while Article 50(2)(j) explicitly protects the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence. 24. The jurisprudence surrounding prosecutorial disclosure is unambiguous and marks a definitive departure from the archaic practice of trial by ambush. In Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, the Court of Appeal unequivocally established that the failure to provide the defence with witness statements and documentary exhibits in advance violates the constitutional right to a fair trial. This principle was further reinforced in Dennis Edmond Appa and 2 Others v EACC and Another [2012] eKLR, where the Court underscored that full discovery is a mandatory feature of modern criminal practice, essential for eliminating the element of surprise and ensuring the parties can address issues based on complete information. 25. The rationale for this strict requirement is eloquently captured in the Thuita Mwangi Case, which notes that non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence. The prosecution’s duty of disclosure is a continuing obligation throughout the trial process. 26. A perusal of the trial court record confirms the Appellant's assertion. There is no indication that an inventory of exhibits was served upon the Appellant, nor is there any record of the medical documents being supplied to him prior to PW3 taking the stand. The prejudice suffered by the Appellant is manifest. The medical records contained critical, potentially exculpatory or contestable information. For instance, the distinction between a spontaneous miscarriage and an incomplete abortion—a central point of contention raised by the appellant regarding PW1's credibility—could only be effectively cross-examined by a defence armed with the actual clinical notes. Furthermore, the records regarding the staging and indicators of the HIV infection were vital for the appellant to instruct any medical experts in his defence. 27. The trial court erred in admitting and relying upon documentary evidence that was unlawfully withheld from the accused. This procedural anomaly constitutes a significant breach of the Appellant's Article 50(2)(j) rights. When the scales of justice are tipped by the suppression of evidence, the resulting trial is fundamentally flawed, rendering any subsequent conviction inherently unsafe. The Reliability of Identification by Recognition 28. The prosecution’s case against the Appellant rested entirely on the doctrine of recognition. The Respondent vehemently argued that because the Appellant and PW1 were neighbours residing in the same plot, this was not a case of mistaken identity, but rather a clear case of identification by recognition. The trial Magistrate accepted this premise without subjection to rigorous testing. 29. While it is a well-established tenet of law that a fact may be proved by the testimony of a single witness, courts have consistently urged extreme caution where that single witness is identifying an assailant. The foundational principles were laid down in Abdalla Bin Wendo & Another v R 20 EACA 166, which held that evidence of visual identification must be tested with the greatest care. This principle was expanded upon in the context of recognition in Maitanyi v Republic KLR 198 and Wamunga v Republic [1986] KLR 424. These cases establish that where the only evidence against a defendant is evidence of identification or recognition, a trial court is strictly enjoined to examine such evidence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 5

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carefully and must be satisfied that the circumstances of identification were favourable and absolutely free from the possibility of error before making it the basis of a conviction. 30. It is true that recognition of an assailant is generally more satisfactory, more assuring, and more reliable than the identification of a stranger because it relies on personal knowledge. However, courts must exercise caution because mistakes can still be made even in circumstances of recognition, as it is not unusual for a person to mistakenly recognize a relative or close acquaintance. This risk is amplified when the alleged recognition occurs under stressful or traumatic circumstances. Evaluating the circumstances of the recognition in the present case reveals significant vulnerabilities in the prosecution's narrative that the trial court failed to scrutinize. 31. The Appellant raised a compelling argument regarding the plausibility of the environmental context. The alleged rape occurred during the daytime in September 2020. This period coincided with the national response to the COVID-19 pandemic, during which schools were closed and many citizens were subjected to lockdowns or remote working arrangements. Consequently, residential plots were densely occupied. PW1 herself admitted that the plot had several houses and many people. It strains credulity that a traumatic sexual assault lasting over 2 hours could occur in a locked ground-floor unit within a crowded compound without a single neighbour seeing the complainant enter, hearing a commotion, or seeing her leave in distress. 32. Furthermore, PW1 testified that she resisted but was unable to scream because the Appellant "had tightly pinned her down" or, as she stated in cross-examination, "ulikuwa umenilalia kabisa" (you had lain completely on me). While the law does not require a victim of sexual violence to exhibit perfect resistance or vocalize their distress to prove lack of consent, the physical mechanics described by PW1 over a continuous 2-hour period without any outcry in a densely populated environment cast a shadow of doubt over the veracity of her account. 33. The trial court accepted the recognition evidence merely because the parties knew each other, completely ignoring the Maitanyi case (supra) obligation to ensure the circumstances were watertight and free from error. When the surrounding circumstances render the narrative highly improbable, relying on uncorroborated recognition by a single witness is legally unsafe. Evaluation of the Alibi Defence 34. Compounding the weakness of the prosecution's identification evidence is the trial court's treatment of the Appellant's alibi. In his defence, the appellant asserted that he was employed as a matatu tout, a job that required his absence from the residential plot from dawn until late evening, making it impossible for him to have committed a daytime assault. 35. The law regarding the defence of alibi is well-settled. An accused person who raises an alibi does not bear the burden of proving it to establish their innocence. The evidential and legal burden of proof remains squarely and entirely upon the prosecution to prove the accused's presence at the scene of the crime beyond a reasonable doubt. As was eloquently stated in Uganda v Ssebyala (1969) EA 204, an accused does not have to establish his defence is reasonably true. All he has to do is to create doubt as to the strength of the case for the prosecution. Furthermore, in Wangombe v Republic (1980) KLR 149, it was held that the prosecution has a duty to test and investigate an alibi wherever possible, and it is sufficient for the trial court to weigh the alibi against the prosecution evidence to see if it creates a reasonable doubt. 36. The trial court's judgment is remarkably silent on the Appellant's alibi, casually dismissing the defence by stating it at best places him at the scene of the crime at time of offence. This conclusion is factually and legally erroneous. The appellant did not place himself at the scene of the crime during the daytime; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 6

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he explicitly placed himself at his place of employment. The prosecution made absolutely no effort to rebut this alibi. They did not investigate his employment as a tout, nor did they call any neighbours to testify that the appellant was seen lounging in the plot during the daytime hours in September 2020. 37. By failing to evaluate the alibi and improperly shifting the burden of proof, the trial court violated the principles articulated in Ouma v Republic KLR 619, which mandates that a court must satisfy itself that the prosecution has left no reasonable possibility that the defence is true. The Appellant successfully created a reasonable doubt regarding his presence at the scene, a doubt which the prosecution failed to displace. Contradictions, Inconsistencies, and Witness Credibility 38. The Appellant averred that the prosecution’s case was fatally compromised by a colossal number of contradictions and inconsistencies, primarily emanating from PW1 and her mother, PW2. While the Respondent correctly submitted, citing Njuki & 4 Others v Republic 1 KLR 771, that minor discrepancies do not per se vitiate a prosecution's case if they do not affect the otherwise proved facts, the contradictions in this matter cannot be summarily dismissed as minor. They go to the very root of the complainant's credibility. 39. First, there is an incurable contradiction regarding the timeline of the offence. The charge sheet broadly alleges the offence occurred on diverse dates during the month of September 2020. However, the entirety of PW1's testimony describes a singular, isolated incident. Furthermore, despite being a student capable of recalling precise dates in November when she experienced abdominal pain (November 22) and went to the hospital (November 23/24), PW1 was utterly unable to recall the day or date of a highly traumatic 2-hour assault that occurred just weeks prior. This discrepancy impairs the appellant's ability to provide a precise alibi and raises questions about the reality of the event. 40. Second, the delay in reporting the offence is deeply troubling. The alleged rape occurred in September 2020, yet no report was made to the police until December 23, 2020—a delay of approximately 3 months. While jurisprudence acknowledges that victims of sexual offences may delay reporting due to trauma, shame, or fear, the law requires a reasonable explanation for such delay to maintain the evidentiary value of the complaint. PW1 claimed she was silenced by the Appellant's threat to kill her. However, PW1 lived in the protective custody of her parents within the same compound, and the Appellant was a tout who spent most of his days away from the premises. The assertion that a death threat sustained her silence for months, even while she sought medical treatment for an aborted pregnancy, lacks the requisite cogency to excuse the delay. 41. Third, a critical contradiction exists regarding the nature of the medical emergency that brought the matter to light. PW1 testified that she was informed by the hospital that she had a miscarriage. However, PW3, the clinical officer who actually examined her, explicitly testified that PW1 was experiencing an incomplete abortion. In medical and legal contexts, these terms are distinct. A miscarriage is a spontaneous loss of pregnancy, whereas an incomplete abortion often denotes the remnants of an induced termination. The Appellant plausibly theorized that PW1, having engaged in consensual sexual activity resulting in pregnancy, attempted to unlawfully terminate it. Upon suffering complications that required medical intervention, she utilized the Appellant—a known neighbour with a sickly wife—as a convenient scapegoat to conceal her actions and appease her parents' anger. The medical evidence of an incomplete abortion, standing unclarified by the prosecution, lends significant weight to the Appellant's theory. 42. Finally, the credibility of PW2 regarding PW1's prior HIV status is highly suspect. PW2 testified that PW1 was regularly tested for HIV every 3 months by a peer-education NGO named "Dreams," and that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 7

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her last test prior to the incident was negative. As the Appellant correctly pointed out, the year 2020 was characterized by severe COVID-19 lockdown measures that severely restricted or completely halted the operations of community-based NGOs and schools. The failure of the prosecution to adduce any documentary evidence, membership cards, or official test results from the "Dreams" organization to corroborate this highly convenient claim renders it unsubstantiated hearsay. 43. When the primary evidence against an accused is the uncorroborated testimony of a single witness, that testimony must be clear, cogent, and unimpeachable. In Kimani Ndung'u v Republic [2000] KLR 282, the Court of Appeal warned against relying on a witness whose evidence creates an impression of untrustworthiness or doubtful integrity. The accumulation of these material contradictions renders PW1 an unreliable witness whose testimony cannot safely support a conviction. The Charge of Deliberate Transmission of HIV 44. The most scientifically and legally complex facet of this appeal concerns the conviction under Section 26(1)(a) of the Sexual Offences Act for the deliberate transmission of HIV. The application of this section sits at the intersection of criminal law, human rights, and evolving virological science. 45. Section 26(1)(a) of the Act criminalizes the conduct of any person who, having actual knowledge that he or she is infected with HIV, intentionally, knowingly, and wilfully does anything which he or she knows or ought to reasonably know will infect another person with HIV. A conviction carries a mandatory minimum sentence of 15 years imprisonment, which may be enhanced to life. 46. The constitutional validity and interpretive scope of this section were recently and definitively clarified by the High Court in Petition No. 447 of 2018: EM and 6 Others v Attorney General and Another. In dismissing a petition to strike down the law as unconstitutional, Justice Ong’udi held that the provision is valid but emphasized that to prevent the unjust criminalization of persons living with HIV, the offence must be restrictively applied. The Court established a rigorous three-pronged test that the prosecution must prove beyond a reasonable doubt: first, the perpetrator must act intentionally and with a specific, proven intention to infect another person; second, the perpetrator must have actual knowledge of their HIV status at the material time of the offence; third, the prosecution must prove that the perpetrator actually infected the other person with HIV. 47. An evaluation of the trial court’s judgment reveals a profound misapprehension of both the legal threshold established in Petition 447 of 2018 and the scientific realities required to prove actual transmission. 48. To satisfy the first and second prongs, the prosecution relied on the testimony of the investigating officer (PW4), who stated that upon arrest in late December 2020, the Appellant admitted to being HIV positive and was already taking Antiretroviral (ARV) medication. While this establishes that the Appellant knew his status in December, it requires a retrospective presumption to conclude he possessed this actual knowledge during the alleged diverse dates in September. 49. More critically, the prosecution adduced absolutely no evidence regarding the specific intent to transmit the virus. The trial court erroneously conflated the act of unprotected sexual intercourse with the specific intent to transmit a life-threatening disease. Under the restrictive interpretation mandated by Petition 447 of 2018, the mens rea for section 26 is elevated; mere recklessness or the occurrence of unprotected sex is insufficient to prove a specific, malicious intent to infect. 50. The most glaring failure of the prosecution's case lies in the third prong: proving actual transmission. The trial court concluded that because the Appellant is living with HIV, and the complainant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 8

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subsequently tested positive for HIV, an unbroken chain of causation was established. This conclusion is scientifically fallacious and legally untenable. 51. To establish that an accused person actually infected a complainant, courts cannot rely on mere temporal proximity or the coincidence of positive statuses, particularly in a high-prevalence jurisdiction. The scientific realities of HIV transmission demand rigorous forensic proof, specifically addressing two concepts: the "Diagnostic Window Period" and "Phylogenetic Strain Matching." 52. As detailed in the Consensus Statement on HIV Transmission in the Context of Criminal Law, often cited in international and comparative jurisprudence dealing with HIV criminalization, medical records identifying who tested positive first cannot establish transmission between a complainant and a defendant. Information related to viral loads or rapid test positivity cannot determine exactly when someone acquired HIV due to intra-individual variations. The gold standard for proving actual transmission—the standard demanded by the severe penal consequences of section 26—is phylogenetic strain matching, which analyses the genetic sequence of the virus in both individuals to ascertain linkage. 53. The prosecution in this case squandered every opportunity to scientifically connect the appellant to the infection. They relied on the unverified hearsay of PW2 regarding prior NGO tests to establish a baseline negative status, ignored the immunological implications of the window period, and completely failed to conduct strain matching. Consequently, the prosecution failed to prove specific intent, failed to prove the timeline of infection, and failed to scientifically prove actual transmission. The conviction under section 26(1)(a) of the Act is a gross miscarriage of justice and cannot stand. 54. The Appellant was also convicted of Rape under Section 3(1) of the Act. The elements of rape require the prosecution to prove intentional penetration of the genital organs and the absence of consent. 55. The medical evidence presented by PW3 established that PW1 had an open cervix and was experiencing an incomplete abortion, which constitutes irrefutable clinical proof that she had engaged in penetrative sexual intercourse. However, in criminal jurisprudence, the fact that an offence occurred is entirely distinct from the identity of the perpetrator. 56. Medical corroboration in sexual offences must not only show that a crime was committed but must also contain elements that scientifically or circumstantially connect the accused to the offence. The prosecution had at its disposal the ultimate forensic tool to connect the Appellant to the offence: a DNA or paternity test on the aborted foetal tissue recovered during the medical cleaning procedure. Inexplicably, the Investigating Officer (PW4) failed to secure this evidence or request DNA analysis. 57. Having failed to utilize available forensic methods, the prosecution was left relying solely on the uncorroborated testimony of PW1. As previously analyzed, PW1’s testimony regarding the implausible daylight assault, the delayed reporting, the contradictory medical diagnosis, and the scientifically flawed HIV timeline is riddled with inconsistencies. The trial court's reliance on section 124 of the Evidence Act to convict on the uncorroborated evidence of a single witness was misplaced, as that provision requires the court to be fully satisfied that the witness is telling the truth—a standard PW1 failed to meet. Sentencing 58. Although the finding that the convictions are unsafe effectively resolves the appeal and renders the sentences a nullity, it is incumbent upon this Court to pronounce upon the glaring sentencing anomalies observed in the trial court's judgment. This analysis serves to guide subordinate courts and directly addresses the respondent's Notice of Enhancement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 9

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59. The trial magistrate sentenced the Appellant to 10 years for rape and 15 years for deliberate HIV transmission. The prison committal warrants and the Appellant's submissions indicate these sentences were directed to run consecutively, resulting in a 25-year cumulative term. 60. The jurisprudence governing the sentencing of multiple offences arising from the same set of facts is firmly established in Kenya. The general rule is that where an accused person is convicted of multiple offences that are committed in the course of a single, continuous transaction, the sentences imposed must run concurrently, not consecutively. 61. In the present case, the act of alleged rape and the act of alleged HIV transmission were inextricably linked; they were the exact same physical transaction occurring at the exact same moment. Imposing consecutive sentences for what was essentially a single continuous act offends the established principles of sentencing, effectively punishing the offender twice for the same physical conduct. Had the convictions been upheld, this Court would have been bound by law to order that the 10-year and 15year sentences run concurrently. 62. The Respondent, via a Notice of Enhancement, invited this Court to exercise its appellate powers to enhance the sentences to life imprisonment, arguing that the trial court erred in failing to apply the mandatory minimum provisions envisaged by the Sexual Offences Act. 63. This argument brings to the fore the highly contentious debate surrounding mandatory minimum sentences in sexual offences, a subject recently and authoritatively settled by the Supreme Court of Kenya in Republic v Joshua Gichuki Mwangi (Petition No. E018 of 2023). 64. Following the landmark Supreme Court decision in Francis Karioko Muruatetu v Republic, which declared the mandatory death penalty for murder unconstitutional for depriving judges of sentencing discretion, several subordinate courts and panels of the Court of Appeal erroneously applied the Muruatetu ratio to invalidate statutory minimum sentences under the Sexual Offences Act. They reasoned that mandatory minimums similarly violated the separation of powers and judicial independence. 65. However, in the Joshua Gichuki Mwangi decision, the Supreme Court explicitly arrested this jurisprudential drift. The apex court clarified a critical legal distinction between a mandatory sentence and a minimum sentence. A mandatory sentence is one prescribed by law where the presiding judicial officer has absolutely no discretion to individualize the punishment (e.g., the former death penalty for murder). A minimum sentence is the least severe sentence a court can issue, setting a statutory floor rather than a ceiling. It preserves judicial discretion by allowing the court to impose harsher sentences, up to life imprisonment, if the aggravating circumstances of the case warrant it. 66. The Supreme Court definitively held that Muruatetu was narrowly confined to the offence of murder and did not outlaw minimum sentences in other statutes like the Sexual Offences Act. The Court reaffirmed that while sentencing is a judicial function, Parliament possesses the constitutional authority to set the parameters of punishment to deter heinous crimes, protect public safety, and reflect societal abhorrence. Therefore, the statutory minimums within the Sexual Offences Act remain valid, constitutional, and binding upon all judicial officers. 67. Consequently, as a pure matter of law, the Respondent's submission that the trial court was bound to adhere to the statutory minimums of the Act is jurisprudentially correct. However, the application of sentencing principles is entirely predicated upon the existence of a valid, safe, and lawful conviction. Because the underlying convictions in this appeal have been subjected to rigorous appellate scrutiny and found to be irredeemably flawed, uncorroborated, and scientifically unsupportable, the Respondent's prayer for enhancement is rendered entirely moot and must be declined. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 10

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68. Accordingly, this Court issues the following orders: i. The appeal is hereby allowed in its entirety. ii. The conviction for Rape, contrary to section 3(1)(a)(b)(3) of the Sexual Offences Act, is hereby quashed. iii. The conviction for Deliberate Transmission of HIV, contrary to section 26(1)(a) of the Sexual Offences Act, is hereby quashed. iv. The consecutive sentences of 10 years and 15 years imprisonment imposed by the trial court are set aside in their entirety. v. The Notice of Enhancement is dismissed. vi. The Appellant, Josephat Thiga Kuria, shall be set at liberty forthwith unless he is otherwise lawfully held for any other cause. DATED AND DELIVERED AT THIKA THIS 20 DAY OF FEBRUARY 2026. HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For the Appellant: Present at Kamiti Maximum Prison For the Respondent: Ms Torosi Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2011/eng@2026-02-20 11

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