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Lawyers are divided on whether it’s a criminal offence to bed another man’s wife.
The argument is that if one does not know of a woman’s marital status, then he cannot be legally held accountable.
But city lawyer Cliff Ombeta says adultery is an offence and is punishable under the Kenyan law. “Once you get married, like in a religious ceremony recognised by the State, the Marriage Act is very clear. It indicates that you are to be with the man or woman in exclusion of others. So, adultery basically breaks that law.”
Ombeta adds that in the case of Kirinyaga Deputy Governor, Ndambiri’s wife can move to court as the complainant and have her husband charged with adultery.
The woman with whom he was busted can also be charged with adultery by her husband, if she truly is married.
If Waithera’s husband goes to police to have her charged with adultery, the burden of proof will be on Ndambiri to convince the court that he didn’t know Waithera was married, says Ombeta.
But another lawyer, Harold Ayodo, says one cannot sue over an affair.
“Adultery is not a crime in Kenya as it is voluntary sexual intercourse between a married person and someone other than the lawful spouse. Physically attacking the man is a criminal offence and you can be charged with assault or causing grievous harm, depending on injuries inflicted. In fact killing anyone for having an affair with your spouse may result to charges of either manslaughter or murder,” he stated.
He added that “it is not in Kenya alone where adultery is not a criminal offence. It is the same case in Uganda, where the Constitutional Court scrapped it. The Constitutional Court in Uganda declared that Section 154 of its Penal Code Act, which criminalised adultery, was unconstitutional because it treated men and women differently.”
He explains that before that, the law deemed it an offence for a married woman to have an affair, but allowed a cheating husband to have an affair with an unmarried woman.
