Sexual relations with a cousin: What the law says

On Thursday morning, Kenyan YouTube content creator Kabi Wa Jesus shook the interweb when he confessed to siring a daughter with his cousin.

Kabi, who has cut the figure of a saved young man deeply in love with his wife Millicent Wambui, aka Milly Wa Jesus, took to Instagram to acknowledge the news would shock his followers.

“I know this news (confirmation of siring child with a cousin) comes as a shock to many of you who follow and watch us. I also know that my public comments about this matter gave a false impression, which I deeply regret,” said Kabi.

The social media influencer had, in January 2021, denied ever having a sexual relationship with his cousin.

“Now with the paternity results out, it is a relief as we can now chat (sic) the way forward together with the mother for the welfare of our child. I am immediately reaching out to her so that we can discuss and agree on her future,” he said.

“I have sought forgiveness from God, my family and I also seek your (fans’) forgiveness.”

The 30-year-old said he sired the baby before getting married to Milly Wa Jesus, who has since pledged to support her husband.

Twitter went into overdrive Thursday morning, May 6, with users making varied reactions to the news. Kabi Wa Jesus, Milly Wa Jesus and the name of the baby sired by Kabi were all trending on the micro-blogging site.

What the law says

With questions rife on whether Kabi Wa Jesus could suffer legal implications following his confession, The Standard delves into what the Sexual Offences Act (2006) says in regard to incest.

Sections 20 and 21 of the Act outline what constitutes incest by male and female persons respectively.

According to the law, incest, which is defined as sexual relations between persons with blood ties, occurs when, in this case, a male person engages in intimacy with his daughter, granddaughter, sister, mother, niece, aunt or grandmother.

For female persons, incest occurs when a person has sexual knowledge of a son, father, grandson, grandfather, brother, nephew or uncle.

If found guilty of the offence, the law stipulates that the offender be imprisoned for a term of not less than ten years if the act is done with an adult (a person aged 18 years and above).

If the incest is committed with a minor (a person aged below 18 years), the offender will be sentenced to life in jail, the law says.

The Act says it doesn’t matter whether the incest was committed after getting consent, or not.

Section 22 of the Act says incest is classified as first degree or otherwise.

Persons under first degree, are: father, mother, uncle, nephew, niece, half-brother, half-sister, adoptive brother and adoptive sister.

“In this Act, an ‘uncle’ means the brother of a person’s parent and ‘aunt’ has a corresponding meaning. A ‘nephew’ means the child of a person’ s brother or sister and ‘niece’ has a corresponding meaning; ‘half-brother’ means a brother who shares only one parent with another; ‘half-sister’ means a sister who shares only one parent with another; and ‘adoptive brother’ means a brother who is related to another through adoption and ‘adoptive sister’ has a corresponding meaning.”

When a suspect is arraigned, the law presumes that he or she had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest, unless it is contrary proved.

Kabi’s case

The law, based on the Sexual Offences Act (2006), does not recognise sex between cousins as incest. It therefore means Kabi Wa Jesus can’t be charged with contravening the Act, even if someone wanted to prosecute him. However, it is a taboo in a majority of Kenyan communities for cousins to engage in sexual relations.

Previous ruling

In August 2016, the High Court ruled that it is not illegal for cousins to marry or engage in sex.

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.

He denied the claims and the case went to full hearing after which the lower court found him guilty of incest and slapped him with 10 years in prison.

The man appealed on account that the lower court did not consider that the girl never testified that he defiled her and did not elaborate on how they were related.

According to court records, the man had told the girl to accompany him to his house at 3pm on April 9, 2014, and she agreed and even prepared a meal for him.

Her mother found her in the house and the result was the criminal case.

The girl's mother testified that the accused was the girl's paternal cousin but the court found that the trial court erred in finding that he was guilty of incest.

Makau found that the prosecution had failed to prove that the offence lay under prohibited relationships as provided for by law.

"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," the judge ruled.

The judge ordered the man's release.