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Man set free as court rules sex with cousin is not incest


A High Court ruling that set free a young man accused of having sex with his first paternal cousin has brought to the limelight an anomaly on the law that touches on incest.

In the ruling delivered by the High Court in Siaya on July 28, the accused was a cousin of the 16-year-old victim.

In 2014, Magistrate Monica Nafula found the man guilty and jailed him 10 years.

His lawyer however appealed against the ruling, claiming that the trial court erred in convicting the man as his act was not incestuous.

“The upshot is that the prosecution failed to prove that the appellant is related to the complainant within the prohibited relationship enumerated under Section 20 (1) and 22 (1) of the Sexual Offences Act,” Justice James Makau ruled.

The Sexual Offences Act Section 20 and 22 lists an uncle, nephew, half-brother, half-sister and adoptive brother as the persons who can be subjected to the test of committing the offence of incest.

Incest, in the said law, is when any male person who commits an indecent act or that which causes penetration with a female person considered to be in his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother. It clearly leaves out cousins.

Those found guilty of committing incest, even if the female involved is below the age of 18 and regardless of whether she consented to sex, will face life imprisonment.

If a male person is accused of attempting to commit such an offence, he will be guilty of attempted incest and is liable to a conviction of imprisonment not exceeding 10 years.

On the other hand, if the accused person is found guilty and was acting as a guardian of the minor, he is snatched away that responsibility and female persons are directed to take over guardianship.