Lamu woman serving ten-year sentence for incest set free by Garsen Court

The High Court in Garsen, Tana River County, has quashed a ten-year sentence handed to a woman over incest.

Justice Reuben Nyakundi ordered the release of the woman named in court papers as MNM following her appeal challenging the sentence.

The Judge said the lower court failed to prove beyond doubt that the said woman was in a relationship with her uncle.

MNM had been sentenced to serve ten years in jail after she pleaded guilty to engaging in sex with a man known to be her uncle.

Particulars of the charge were that she committed the offence on diverse dates between March 15, 2019, and July 11, 2020, at Hindi Location Lamu West Sub County within Lamu County.

In her appeal, MNM claimed that the magistrate erred in law by failing to appreciate that the plea was taken virtually while being held at a police station frightened and intimidated by the presence of fierce-looking fully uniformed all-male police officers.

The woman further said the trial magistrate failed to ask her the language which she understood and preferred to be used during her trial.

The prosecution she said did not satisfy the test of the niece-uncle relationship beyond reasonable doubt through evidence when the facts were read by the prosecutor.

The facts of the case as presented by the prosecution before the trial court was that the woman approached her father seeking permission for a marriage to one JM aged 22 years. In utter shock, the father told her JM was her uncle.

In response, the prosecution argued that the lady informed her father that she would not end the relationship despite knowing that JM was her uncle.

MNM's father then summoned an emergency family meeting at his home where JM and his two brothers attended and the blood relations were fully explained.

The woman, however, disregarded the resolutions of the family meeting and eloped with JM as her husband.

Judge Nyakundi in his judgment questioned how the court got convinced that the relationship had been proved.

“The question I pose here is how did the court get convinced that the relationship had been proved? Whereas the prosecution indicated that they established an uncle-niece relationship, the appellant (MNM) argues that there is no such relationship. On the contrary, the appellant argued that JM is a cousin to her mother and not the brother,” stated Judge Nyakundi.

The judge said if indeed JM, the co-offender is a cousin to MNM's mother and not her brother, there is no uncle-niece relationship as defined in the Act.

The judge in further analysing the case said there is no indication from the record of the lower court that the trial court explained to MNM the consequences of her plea.

“Rather, the court recorded her plea without informing her of the consequences of that decision,” read the judgment.

 The judge said it was wrong for the magistrate to enter the plea and also not question the facts of the prosecution to establish that they had discharged their burden of proof as regards the existence of an uncle-niece relationship.

“In the foregoing, I am convinced that there was a miscarriage of justice that cannot be cured by a retrial. I, therefore, proceed to quash the conviction and sentence of the trial court and set it aside,” ruled the judge.