A Nairobi court ruling on sexual relations between cousins has left tongues wagging after it said the act is not illegal in Kenya.
High Court Judge James Makau said that the Sexual Offenses Act does not mention cousins under the offence of incest which is sexual relations among relatives.
In the ruling, the judge acknowledged that it is not illegal for cousins to marry or engage in sex depending on communities. Some communities allow sexual relationships between cousins while it is taboo in others.
"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,” said the judge as quoted by The Standard.
The ruling came in a judgment summary after a woman took her nephew to court for sleeping with her daughter.
“The National Assembly did not leave out the clause on cousins by intention but by the fact that in some cultures in Kenya, like the Hindus and Muslims, sexual acts and marriage between cousins are allowed. It is not criminalised,” said Makau.
The accused, code named 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 a lower court found him guilty of incest and sentenced him to serve 10 years in prison.
Judge Mutua said the magistrate court erred in finding that he was guilty of incest.
“The prosecution failed to prove that the offence lay under prohibited relationships as provided for by law. The court should not have imported the relationship of cousins and included it in illegal relationships,” he said.