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.