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Avon Global Center for Women and Justice at Cornell Law School - Green Background

Country Details

Kenya

  • CK v. Commissioner of Police, Kenya, High Court, 2013.
    The High Court of Kenya held that the police have a duty to investigate allegations of sexual abuse made by female complainants, stating that “by failing to enforce existing defilement laws, the police have contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity.”
  • In Re Estate of Lerionka Ole Ntutu (Deceased), Kenya, High Court of Kenya at Nairobi, 2008.
    The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.
  • Murunga v. Republic, Kenya, Court of Appeal, 2008.
    The appellant was charged and convicted of three counts of robbery with violence and one count of rape, with the charge of rape stating that the appellant "jointly with another not before the court" had carnal knowledge of the complainant.  He appeals on the grounds that the charge for the offense of rape was defective. The Court held that two or more men cannot jointly commit the offense of rape against one woman so the offenders cannot be charged jointly but each offender must be charged on a separate count of rape.
  • Tom Ochieng v. Republic, Kenya, High Court, 2008.
    The appellant was charged and convicted of defilement and indecent assault of a girl under 16 years old by touching her private parts.  He was sentenced to 10 years imprisonment on the first count and five years imprisonment for the second.  He appealed on the grounds of insufficient evidence to sustain a conviction and an excessive sentence. The Court affirmed the convictions because medical evidence may be corroborative evidence to sustain a conviction and an unexplained disappearance after an alleged incident may also be considered corroborative evidence.  The Court also held that the sentences were not excessive. 
  • Zacharia Waithaka Mwaura v. Republic, Kenya, Court of Appeal, 2007.
    The accused was charged with defilement of a girl under the age of 14 years, and was convicted and sentenced to 14 years imprisonment.  He appealed for leniency on the grounds that he was remorseful, suffering from acute pneumonia and only 17 years of age at the time of the incident. The Court upheld the sentence finding that the sentence of 10 years for defilement of a girl and 5 years for indecent assault is not excessive and no circumstances existed to justify modification of the sentence.
  • ENN v. JCB, Kenya, High Court, 2006.
    The petitioner-wife sought the dissolution of her marriage on the grounds of cruelty and adultery because respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner's testimony was believable and established cruelty that endangered her life and health.  The Court therefore dissolved the marriage.  (Kenya domestic law does not explicitly recognize marital rape.) 
  • Phillip Kipkoech Chepkwony v. Republic, Kenya, High Court, 2006.
    The appellant was convicted of defilement for taking the complainant to the forest and forcefully having sexual intercourse with her.  He appeals on the ground that the complainant was his girlfriend. The Court dismissed the appeal because sex with any girl younger than 16 is considered unlawful, whether or not the girl consented, and the appellant had not raised the defense that he had a reasonable belief that the girl was above the age of 16 years.  The Court rejected appellant's plea for special consideration because of his alleged HIV status. 
  • Andrew Manunzyu Musyoka (Deceased), Kenya, High Court, 2005.
    The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married.  The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act.  It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR. 
  • Hamisi Suleiman v. Republic, Kenya, High Court, 2005.
    The appellant was charged with rape and defilement and alternatively with indecent assault for having carnal knowledge of the complainants under the guise of treatment as an herbalist/witch doctor.  He was convicted of indecent assault and sentenced to four years imprisonment and hard labor. He appealed the conviction on grounds of insufficient evidence and undue harshness of the sentence. The Court held that a rape conviction requires penetration and lack of consent on the part of the victim; defilement only requires penetration but not lack of consent.  Evidence of penetration can be inferred from sexually transmitted infections; medical examinations are not required to sustain a conviction.  Appellant's defense that he was framed was dismissed as it was improbable that the complainants would subject themselves to rape to avoid paying him.
  • Kassim Ali v. Republic, Kenya, Court of Appeal, 2005.
    The appellant was charged with rape and alternatively with indecent assault; he was acquitted of rape but convicted of indecent assault and appeals. The Court upheld the conviction on the ground that while sexual offenses usually require corroboration of the complainant's testimony, in cases where the judge is satisfied of the complainant's veracity or where the complainant's testimony can be corroborated with circumstantial evidence, a conviction can be made.
  • Mulundi v. Republic, Kenya, Court of Appeal, 2005.
    The appellant was convicted of defilement of a girl under the age of 14 years and sentenced to 14 years imprisonment with ten strokes of the cane.  The appellant appealed his conviction and the sentence as being excessive for a first offense. The Court dismissed the appeal of the conviction as the complainant identified the appellant and medical evidence is no longer necessary to convict an accused if the evidence was sufficiently cogent.  The "defilement" conviction was substituted with rape and the appellant was sentenced to ten years imprisonment.  
  • Rono v. Rono, Kenya, Kenya Court of Appeal at Eldoret, 2005.
    In settling the estate of a deceased patriarch, the sons filed to receive a greater portion of the father’s estate in accordance with customary Maasai law under Section 82(4) (b) of the Kenyan Constitution which preserves customary local or tribal inheritance laws. The daughters appealed this ruling and the presiding judge ruled in their favor, distributing the estate evenly amongst all children. In the ruling the judge cited international law, including CEDAW and the Universal Declaration of Human Rights as well as the Kenyan Judicature Act Chapter 8 Section 3(2) which states that customary law cannot be applied when in violation of justice, morality, or any other written law. This was a landmark case for Kenya and other countries where traditional societal norms systematically deny women’s rights. The judge set an important progressive precendent in overruling prejudicial customary laws in order to uphold human rights law.
  • Wafula v. Republic, Kenya, High Court, 2005.
    The appellant was charged and convicted with the offense of rape for accosting the complainant, a girl of 15 years, dragging her to a nearby sugar plantation and raping her.  The appellant appealed on the ground that the complainant was so young that the court needed to have first satisfied itself that the complainant possessed sufficient intelligence to justify the reception of her evidence. The Court said that 15 years did not make the complainant too young to give uncorroborated evidence, as would otherwise be required in sexual offenses.  (It quashed the conviction, however, on the ground that the rape charge did not contain the words "unlawful" and "without consent" which are necessary to any charge of rape.)
  • Paul Nganga Kamau v. Republic, Kenya, High Court, 2004.
    The appellant was charged and convicted of rape and sentenced to 12 years imprisonment.  Complainant testified that on the day of the incident, she met the Appellant at a bar and agreed to spend the night with him for a sum of money. Appellant took her to a house and he and two colleagues raped the complainant for the whole night in turns.  The complainant testified that she had withdrawn her consent at the time she had intercourse with the Appellant. If it is proven that the complainant withdrew consent at any time before the sexual act, even if complainant had initially consented, then appellant is guilty of rape. 
  • Achoki v. Republic, Kenya, Court of Appeal, 2000.
    The appellant was charged with attempted rape and, alternatively, of indecent assault for attempting to have carnal knowledge of the complainant. A rape charge must include that the sexual intercourse was without the consent of the woman or girl; if consent was obtained by force, personation, etc. a rape charge would be permissible.  The charges against the appellant did not include a lack of consent and so the rape charge was dismissed but the indecent assault conviction was affirmed.