Even though romantic relationships between relatives are largely considered a taboo in Kenya, the High Court has ruled that it’s not illegal for cousins to engage in sex or marry.
High Court Judge James Makau made the pronouncement while ruling on an appeal by a man who had been convicted of incest by the Magistrates court. Justice Makau established that the Sexual Offence Act did not criminalise sex between cousins.
The judge observed that the legislators in the National Assembly did not leave out the Clause by mistake, but because some cultures in Kenya like Hindu and Muslims allow it.
“This means it is permissible to have sex with a cousin,” the judge ruled. “My understanding of the said section (Section 20(1) of the Sexual Offences Act) is that if any sexual act takes place between two cousins, that does not amount to incest within the meaning of the provisions of the Sexual Offences Act.”
The accused only identified as Woo was arrested and charged in 2014 for intentionally having sex with a 16-year-old girl knowing that they were cousins.
During the time of the incident, the 16-year old was reportedly found in Mr Woo’s house and taken to hospital where it was established she had been defiled.
Mr Woo was arraigned before a Magistrate Court where he was slapped with a 10-year jail term for engaging in incest.
The High Court, however, ruled that the Lower Court erred in finding the accused guilty of incest.
“I find that it was an error in law for the trial court to have imported the relationship of a cousin and included it within the provisions of the law when that relationship was not among the specified relationships to be considered in determining a case of incest,”Judge Makau ruled.
The High Court Judge ordered Mr Woo be released immediately and stated that the court failed to establish whether the offense was provided for in the law.