Nairobi, Kenya: It is not illegal for cousins to marry or engage in sex, the High Court has ruled even though relationships between cousins are acceptable in some communities and taboo in others.
High Court judge James Makau, in an appeal where a man was contesting a conviction of alleged incest with a cousin by the Magistrates Court, found that the Sexual Offences Act does not mention cousin among the list of relatives under the offence of incest.
Justice Makau ruled that the National Assembly did not leave out the clause on cousins by intention but by the fact that in some cultures in Kenya - such as Hindus and Muslims - and some African communities, sexual acts between cousins are not criminalised.
"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 person, named in the court's verdict as WOO, was arrested and subsequently charged in 2014 for allegedly engaging in sex with a 16-year-old girl knowing that she was his cousin.
He denied the claims and the case went to full hearing after which the lower court found him guilty of incest and slapped him with 10 years in prison.
LOWER COURT
The man appealed on account that the lower court did not consider that the girl never testified that he defiled her and did not elaborate on how they were related.
According to court records, the man had told the girl to accompany him to his house at 3pm on April 9, 2014, and she agreed and even prepared a meal for him.
Her mother found her in the house and the result was the criminal case.
The girl's mother testified that the accused was the girl's paternal cousin but the court found that the trial court erred in finding that he was guilty of incest.
Makau found that the prosecution had failed to prove that the offence lay under prohibited relationships as provided for by law.
"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," the judge ruled.
The judge ordered the man's release.
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