You betrayed fatherhood: Judges shut down incest loopholes in Kenya’s law
Milimani Law Courts in Nairobi.
What you need to know:
- Grandfathers and fathers lose appeals as judges invoke strict interpretations of incest and defilement provisions under law.
- Courts close legal loopholes, uphold life imprisonment for incest against children, equating it to defilement’s gravity.
For years, convicts of incest have tried to exploit loopholes in Kenya’s Sexual Offences Act (2006) in a bid to overturn the mandatory life sentence. But the courts have consistently hit back, at times with firm and even startling decisions.
At the Chief Magistrate’s Court in Malindi, SK was convicted of incest. He had sexually abused his nine-year-old biological daughter in Kilifi. In Criminal Case No. 25 of 2013, he was handed the mandatory life sentence provided under the Sexual Offences Act.
Unhappy with the judgment, SK appealed, arguing that the use of the word “liable” in the law implied that life imprisonment was not mandatory. This was one of the six grounds he raised. He contended that the trial court failed to appreciate that the term “liable” allowed for judicial discretion, hence life sentence was not safe.
But in Criminal Appeal No. 42 of 2015, the High Court in Malindi delivered a firm rebuke. The judge cited Section 20(1) of the Act, which deals with incest by males. It provides that where the victim is a female under 18, the accused “shall be liable to imprisonment for life".
The judge noted that courts must interpret this in the context of the broader sentencing provisions in the Act, especially Section 8(2), which mandates life imprisonment for defilement of a child aged 11 or younger. The court observed that it cannot be that committing incest is treated more leniently than defiling a non-relative.
In a stern judgment, the judge said, “The appellant cannot benefit from the wording of Section 20 of the Sexual Offences Act and get a prison term of a number of years. The appellant betrayed his fatherhood and should suffer in the same manner a convict of defilement would suffer under Section 8(2) of the Act.”
He concluded that a “life sentence is the most ideal in the circumstances of this case.”
A similar fate befell CMM, a grandfather sentenced to life by the Senior Principal Magistrate’s Court in Kitui. He had sexually abused his 11-year-old granddaughter. Dissatisfied, he appealed at the High Court, which dismissed his application and upheld the conviction and the sentence.
Undeterred, CMM escalated the case to the Court of Appeal in Nairobi under Criminal Appeal E085 of 2023, pointing to a legal gap in Section 22 of the Sexual Offences Act. This section defines the relationships covered under the offence of incest. It states that a brother or sister include half-brothers, half-sisters, adoptive brothers, and adoptive sisters.
A father includes a stepfather and an uncle of the first degree and a mother includes a stepmother and an aunt of the first degree, whether the relationship arises through lawful wedlock or not. However, it does not explicitly mention grandchildren. CMM argued that because the term “granddaughter” was not included, his relationship to the victim did not fall within the legal definition of incest, hence the charge was invalid.
The Court of Appeal agreed, to an extent. It set aside the conviction for incest and substituted it with a conviction for defilement, which also attracts a life sentence. Therefore, the punishment remained intact.
DMK, another grandfather, filed Criminal Appeal No. 14 of 2019 at the High Court in Naivasha, seeking to overturn his conviction and sentencing. The Chief Magistrate’s Court in Naivasha had sentenced him to 20 years in prison for incest after he was found guilty of violating his 10-year-old granddaughter. Like CMM, DMK argued that the relationship did not fall under sections 20 and 22 of the Sexual Offences Act, making the charge of incest legally flawed.
In this case, the child testified that DMK was her grandfather and the father of her mother. The child’s mother also confirmed that DMK was her stepfather. The court observed that although Section 22 of the Sexual Offences Act does not explicitly mention stepfather, the term half-father used in the section includes a stepfather.
Therefore, by being the stepfather of the child’s mother, DMK’s relationship with the child fell within the prohibited degree of consanguinity that is a blood or family relationship recognised under the law. His appeal backfired.
The High Court found that the trial magistrate had issued an illegal sentence by giving him a 20-year term instead of the mandatory life imprisonment. Under Section 354(3)(a) and (b) of the Criminal Procedure Code, the High Court is required to correct illegalities in sentencing. The judge, therefore, upheld the conviction but set aside the 20-year sentence, replacing it with an order for DMK to serve life imprisonment.
