Drafters of the law penalising sexual offences did not include a clause to shield boys from preying male relatives, or stop the sexual abuse of girls by their female relatives.
Although the Sexual Offences Act defines defilement as the abuse of both male and female children, it is silent on what should be done to men or women who commit incest with minor kin of the same gender.
Justice Roselyn Wendoh, in a case where a man was found guilty of sexually abusing his nine-year-old son, noted the oversight in Section 20(1) of the Sexual Offences Act needs to be rectified to seal the gap.
The section provides that the victim must be of the opposite gender and related to the perpetrator.
“The complainant is a male person and does not fall within the above category listed in Section 20(1). Section 20(1) is clear that a male person must commit the incest with a female relative. There is no provision in the Sexual Offences Act where a male is deemed to commit incest with a male relative. I wish to point out that the Rules Committee needs to reconsider Section 20(1) of the Sexual Offences Act, whether a man can commit incest on a male relative. Was it an oversight on the part of the drafters,” she posed.
It is now 14 years since the Act became effective as a law.
Despite there being a gap in the law, the judge enhanced a 20-year jail sentence initially handed by the magistrate’s court to 30 years after finding that the man’s actions had harmed the minor both emotionally and psychologically.
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“The complainant is a young boy of tender age, his own son upon whom he inflicted serious injuries by his bestial acts. Instead of being his protector, he was the molester until the young boy had to run for his life and find refuge in the bathroom. He does not deserve mercy,” the judge observed.
The State had preferred two charges against the man code-named JKM. In the first count, he was accused of incest while in the second, he was charged with an indecent act with a child.
After hearing a horrifying testimony from the boy left alone with his father in Laikipia County, the magistrate in 2018 found JKM guilty and handed him a 20-year jail sentence.
Aggrieved, he appealed, arguing that the sentence was too harsh. He also faulted the magistrate’s court for allegedly entering a conviction that went against the Constitution, adding that the trial court did not factor his side of the story.
The Director of Public Prosecutions opposed the appeal noting that JKM was rightly jailed from uncontested evidence from his son.
The boy testified after taking an oath to tell the truth. He was the prosecution’s first witness.
The boy recalled that he lived with his father in their house while his other six siblings lived with relatives as his mother works in Saudi Arabia. He narrated that he shared a bed with him.
He told the court that sometime in August 2017, JKM told him that men do not sleep with clothes on. He then abused him three times. The boy slept in a bathroom the first time it happened. The second time, he informed a neighbour named Mama Nancy who then informed his uncle and he was taken to a hospital. This time, the victim slept outside a shop.
The minor told the court that his father used to beat him a lot and that he had slept outside five times.