Cousins Can Engage in Consensual sex: Court Rules

September 26, 2023

NAIROBI,Kenya – In a landmark ruling, the High Court of Nairobi, Kenya, has affirmed that it is not illegal for cousins to marry or engage in consensual sexual relationships. This groundbreaking decision came after an appeal by a man, known in court records as WOO, who was contesting his conviction for alleged incest with a cousin by the Magistrates Court.

High Court Judge James Makau, presiding over the appeal, made it clear that the Sexual Offences Act in Kenya does not explicitly mention cousins among the list of relatives covered under the offense of incest. Judge Makau pointed out that the omission of cousins from the law was not an oversight but a reflection of the diverse cultural practices within the country.

“The Sexual Offences Act does not criminalize sexual acts between cousins,” Judge Makau stated unequivocally. “This means it is permissible to have consensual relationships and engage in sexual activities with a cousin.”

As a result of the High Court’s decision, WOO has been ordered to be released from custody.

The accused, WOO, had been arrested and charged in 2014 for allegedly engaging in a consensual relationship with a 16-year-old girl, with both parties knowing they were cousins. He vehemently denied the allegations, leading to a full hearing in the lower court, which ultimately found him guilty of incest and sentenced him to 10 years in prison.

However, WOO appealed the decision, arguing that the lower court had not considered important factors, such as the absence of testimony from the girl indicating non-consensual activity, and that the nature of their cousin relationship had not been adequately established.

During the trial, it was revealed that WOO had invited the girl to his house on April 9, 2014, and she had willingly accompanied him, even preparing a meal for him. It was her mother who had discovered them together, leading to the criminal case.

The girl’s mother testified that WOO was the girl’s paternal cousin. However, Judge Makau found that the trial court had made a legal error by including cousin relationships within the scope of the law, as the Sexual Offences Act did not specify them as prohibited relationships.

“I find that it was an error in law for the trial court to have imported the relationship of a cousin and included it within the provisions of the law when that relationship was not among the specified relationships to be considered in determining a case of incest,” Judge Makau emphasized in his ruling.