Can I sue spouse for infecting me with HIV?

My wife of 15 years has infected me with the HIV/AIDS virus. She confessed to me recently that she had an affair with a married man who passed on last month.

She spilled the beans after I tested positive last week following my routine tests every six months. I am now devastated as we are strict Christians with three children below 13 years.

I am annoyed with her and contemplating taking legal action against her. Is that possible?

PAUL, NAIROBI.

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It took me three years to discover that my husband of seven years secretly took Anti-Retro Virals (ARVs). I recently bumped into the drugs inside the glove department of his car.

He admitted that he has been on them since 2010. I feel betrayed. After undergoing a blood test last week, I found out that I was positive too.

I am so stressed out. I feel like my life has lost meaning. Can I sue him for ruining my life at 31?

ANGELA, NAIROBI.

Dear Paul and Angela

The Sexual Offenses Act of 2006 criminalizes infection of spouses with HIV or any other life threatening sexually transmitted disease. And the penalty is imprisonment for a term not less than 15 years in jail. The law also provides for life imprisonment for the guilty spouse.

Paul, yes it is possible for you to take legal action against the acts of your wife. Firstly, if you were married in Church, your wife's self-confessed extra-marital affair amounts to adultery. Secondly, knowingly infecting you with HIV is criminal.

Angela, you can sue your husband and further institute divorce proceedings – if you wish – in case he got infected following an extra-marital affair, and if married under the Marriage Act which allows only for monogamy.

As part of evidence, apart from his confession, the court may order blood, urine or other tissue samples taken from your husband by a qualified medical practitioner for screening to ascertain whether he is/was infected with HIV or any other life threatening disease.

Harold Ayodo is a practicing advocate of the High Court of Kenya. He works for the Law Society of Kenya


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