A woman has moved to court seeking orders to allow her to visit her husband in prison for conjugal rights.

The woman identified as Ogembo has sued Attorney-General Kihara Kariuki, arguing that although her husband - Erastus Odhiambo - is serving 20 years for murder, he retains all his other rights, including conjugal rights.

In a case likely to set a precedent on prisoners’ right to have sex with their spouses, Ogembo argues that she has been deprived of her right to procreate and have intimacy with her husband.

“The first petitioner is in her reproductive years and it is her desire to sire more children, continue being a woman and now seeks for conjugal visits with her spouse in a bid to meet her sexual needs,” her lawyer says. 

The Marriage Act guarantees spouses conjugal rights from their partners. However, Kenyan laws are silent on the rights of a prisoner to procreate while serving a sentence or while in police custody.

Countries such as Germany, Russia, Spain, Saudi Arabia, Denmark, Israel, Belgium and some states in America allow prisoners to spend intimate time with their legal spouses. The duration of such visit varies from a few hours to several days.

Justice Stella Mutuku jailed Odhiambo in July 2018 for the murder of Linda Wanjiku Irungu, a 27-year-old lawyer who was alleged to be his wife. The crime was committed in Buru Buru Phase 5, Nairobi.

During the trial, however, Odhiambo's marriage to Wanjku was disputed. Whereas Odhiambo said he had paid some dowry, her family maintained that the two were just friends.

The court heard that the accused had gone looking for Wanjiku on the night she was killed. A quarrel ensued during which Odhiambo is reported to have assaulted Wanjiku before shooting her.

In her case, Ogembo now argues that the State’s failure to build or allocate facilities within prisons for conjugal visits is against her rights as a spouse.

“The first petitioner has read and understood the content and substance in the Persons Deprived of Liberty Act 2014 and strongly believes that she is entitled to conjugal visits since her spouse retains all the rights under Article 51 of the Constitution," her lawyer argued.

"Failure by the respondent to accord, provide facilities to enable the first petitioner access such visits elucidated above amounts to a violation of her most basic need as a woman."

A 2018 University of Nairobi research on sexual rights in Kamiti Maximum Prisons found that a majority of prisoners considered a denial of sexual rights as unjustified and against their basic human rights.

Ann Nyakara Mososi in her research said that 91 per cent of the 1,800 prisoners who responded to her questions supported introduction of conjugal visits. 93 per cent said denial of conjugal rights was a human rights violation.

Mososi noted that those in support said such visits said they would "reduce the alienation of inmates from the community they will eventually rejoin".

Ogendo now wants the court to find that her right to reproduction has been violated. She also wants the court to find that since the State has not provided facilities and opportunities for conjugal visits and how male parents can take care of their children while in prisons, her spouse should get a non-custodial sentence to cater for these.