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.”
W.J. and L.N. v. Amkoah, Jamhuri Primary School, The Teachers Service Commission and the Attorney General (Petition No. 331 of 2011), Kenya, High Court, 2011.
In July 2010, W.J. and L.N, 12 and 13 year old female students at Jamhuri Primary School, were invited to the home of their teacher, Astarikoh Henry Amkoah. Amkoah forced the girls to perform household chores and later attempted to defile W.J. in the restroom and defiled L.N. in the hall. On several occasions later that month, Amkoah raped both girls. The girls’ education was severely interrupted by the trauma of Amkoah’s attacks and L.N. dropped out of school completely. Ultimately, Amkoah was acquitted in criminal court. In this suit filed by their guardians, W.J. and L.N. sued claiming that Amkoah’s actions unconstitutionally interfered with their rights to health, education, and dignity, and claimed that the school and state should be vicariously liable for the teacher’s actions. They invited the court to look at the claims from the perspective of a tort in negligence and as a human rights violation. However, the violations took place prior to the adoption of a revised 2010 Constitution, so the Court was required to rely partially on the 1963 Constitution which did not include those same guarantees. Still, the 1963 Constitution offered a right to freedom and security of the person. Additionally, the Convention on the Rights of the Child, adopted through Kenya’s Children Act, promises children the right to be free from sexual or physical violence, the right to receive an education, and the right to dignity. As a result, the Court was able to rely on the guarantees of the Children Act. Moreover, Justice Ngugi recognized the 2010 constitutional right to dignity as a continuing right, meaning that while the initial crime may have occurred prior to the 2010 Constitution’s adoption, the continuous nature of the effects of sexual violence on an individual’s dignity make the provision applicable in this case. Here, the Court determined that the criminal acquittal would not serve as a bar to the action because of the differing standards of proof in a criminal and a civil trial. Importantly, the Court decided that “any educational or other institution in which teachers or other care givers commit acts of sexual abuse against those who have been placed under their care is vicariously liable for the wrongful acts of its employees.” The court noted that because children are particularly vulnerable, it is appropriate to impose strict liability on “those in charge of educational and other institutions . . . for abuses committed by those whom they have placed in charge of vulnerable groups such as minors in educational institutions” and held the four named plaintiffs—the teacher, the school, the teachers service commission, and the state—jointly and severally liable for damages of KSH two million for W.J. and KSH three million for L.N.
In Re Estate of Lerionka Ole Ntutu (Deceased), Kenya, High Court, 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.
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.
Midwa v. Midwa, Kenya, Court of Appeal, 2000.
A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.