A 20-year-old woman has been set free after being sentenced to 10 years for incest— allowing her maternal uncle to have sex with her.
She had been imprisoned in July 2020, for about a year and a half.
Then she appealed, saying the court's definition of incest was wrong and she didn't commit incest.
She said she had no legal representation, she was intimidated and pressured by police. She said she was told she would be released if she pleaded guilty since the offence was minor.
On December 18, in Garson, Taita Taveta, the court agreed with MNM, as she was called in court documents.
The court was particularly dismayed that the trial court convicted MNM of incest when the Criminal Code defines incest in this case as between a woman and her father's cousin
MNM, as she was referred to in court documents, was sentenced to 10 years in prison after she pleaded guilty to having lived with her uncle, identified only as JMN, as husband and wife.
JMN, now 22, was also charged as a co-offender.
According to court documents, she pleaded guilty to practicing incest between March 15, 2019, and July 11, 2020, in Lamu West sub-county.
MNM appealed the cases, stating that JMN is her mother's cousin.
It was her submission that she is not related to the co-offender as a niece, as the co-offender JMN is an uncle of the second degree and not first degree, as provided in the legal definition of incest.
She further stated she was unrepresented and that she did not understand the consequences of her plea. Thus, she urged the court to quash the decision.
The facts presented by the prosecution before the trial court were that MNM approached her father seeking permission to marry JMN.
In shock, he father told her that JMN was her uncle, a fact the prosecution noted, MNM already knew.
In response, MNM informed her father she would not end the relationship.
"The father thus summoned an emergency family meeting at his home where MNM, JMN and his two brothers attended and he fully explained to them the blood relations," the prosecution said.
The prosecution then argued that the appellant disregarded the resolutions of the family meeting and eloped with JMN. They married.
"The family thereafter contacted a pastor to offer spiritual guidance and counselling. When that failed, the parents reported the matter to the police," the prosecution said.
A police officer was assigned the case and during his investigations he found the two living together as husband and wife.
The prosecution said the investigating officer confirmed the uncle-niece relationship and took the appellant to a health centre where she was examined and found to be actively engaging in sexual intercourse.
She was then charged and convicted on her own plea and sentenced to 10 years imprisonment.
MNM appealed at the High Court in Garsen, Taita Taveta.
She submitted that she had been intimidated by the police who also misled her that the charge was a minor one and that if she pleaded guilty, she would be released.
"Considering the nature of the sentence, I ought to have been warned of the consequences of pleading guilty, taking into account the fact the plea was taken virtually at the police station where I felt frightened and intimidated," she said
High Court judge Reuben Nyakundi, while setting her free, questioned how the court was convinced that an incestuous relationship had been proved.
"If indeed JMN, the co-offender, is a cousin to the appellant’s mother and not her brother, there is no uncle-niece relationship as defined in the Act," he said.
"It was intentional and deliberate for Parliament to limit the relationship to first-degree relationships and exclude the rest. If their intention was to prohibit a relationship between second-degree relatives, they would have expressly said so," he added.
The judge faulted the court for failing to establish the relationship between the appellant and the co-offender.
"The prosecution cannot simply claim that they established the relationship with no proof of how the same was done and the same became admissible in court," he stated.
He said that even where an accused person pleads guilty, the court must satisfy itself and ensure that that the accused person is not being convicted on anything less than proof beyond a reasonable doubt.
"This is especially critical where an accused person forfeits his or her right to a trial and pleads guilty. In such a case, caution and circumspection must be taken to ensure that there is no miscarriage of justice," he affirmed.