Kenya

The petitioner asked for dissolution of marriage with the respondent. In June 2011, the petitioner went on a foreign peacekeeping mission as a member of the Kenya Air Force. When she returned at the end of the month, she found that the respondent had cohabited with, married, and impregnated another woman. The respondent gave the petitioner an ultimatum between a polygamous marriage or divorce despite the their monogamous civil marriage. The petitioner stated that she had lived separately from the respondent for six years because he tried to force her to enter into a polygamous marriage when she intended to engage into only a single marriage. The court held the respondent guilty of cruelty against the petitioner and found that the marriage had, on account of the respondent’s behavior and the long separation of over six years, irretrievably broken down. The court granted the dissolution of marriage.

The appellant, M.N., was charged with attempt to procure abortion, contrary to Section 158 of the penal code, which provides the “any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever is guilty of a felony and is liable to imprisonment for fourteen years.” Four witnesses testified for the prosecution, including complainant, who was 15 years old, told the court that the appellant, who was her teacher, invited her to his home on several occasions and made advances at her. She also testified that they eventually had sexual intercourse, which led to her pregnancy, and that the appellant provided a “doctor”, who was never arrested or charged, to procure an abortion. The complainant’s grandmother, one of the witnesses, testified that she also observed the “doctor”, but gave a different account of his actions than the complainant’s. The complainant later gave birth to a healthy baby. The appellant denied having a sexual relationship with the complainant and attempting to procure an abortion. The court held that the trial court convicted appellant based on its suspicion that he was responsible for the complainant’s pregnancy and that he provided the “doctor” who attempted to procure an abortion, but that suspicion was insufficient to sustain the conviction. The High Court thus set aside the conviction and sentence.

The appellant was convicted of (i) aiding the commission of female genital mutilation (“FGM)” on several girls, (ii) failing to report the commission of FGM, and (iii) allowing her premises to be used to perform FGM. She pled guilty to the crimes and was sentenced to pay a fine of Kshs. 200,000 (or 3 years of imprisonment if she defaulted on the payment). On appeal, she argued that the sentence was overly harsh and oppressive because she was a single mother of three children. Justice M. Muya upheld her sentence, as it was the minimum allowed under the Female Genital Mutilation Act. The Justice in this case noted that within this case “lies the clash between traditional values and the law of the land.” Even though the appellant was abiding by a customary practice, it was in violation of Kenyan criminal law, and thus the appellate court upheld her sentence.

The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip. Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her. He booked a single hotel room, while the claimant believed she would have her own room. As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference. Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference. Her salary for May was unpaid. Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her. The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.” The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000. This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law. In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace. The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.

The defendant was accused of the killing of her husband. She entered into a plea agreement to reduce the charge of murder to manslaughter. The deceased returned home on May 7, 2016, intoxicated and accused the defendant of infidelity. A violent domestic fight ensued and the defendant used a kitchen knife to fatally stab the deceased. The defendant was also injured by the deceased during the altercation. The defendant asked the court for a non-custodial sentence based on a number of mitigating circumstances including the fact that the defendant is the primary caregiver of her three children with the deceased, aged five, three, and one. Relatives and friends of the deceased confirmed that he was verbally and physically abusive to the defendant and the killing occurred in “the heat of the moment.” Furthermore, the defendant had no prior record, demonstrated remorse, and the deceased’s family and the community had forgiven her and were willing to help her raise her children. The High Court agreed that these factors merited a non-custodial status, adding that the defendant is both the accused and the victim, and was acting in self-defense even though she used excessive force. The High Court handed down a three-year non-custodial sentence. This case marks an important example of Kenyan courts treating victims of domestic violence with leniency where excessive force is used while defending themselves from their abuser.

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.

The petitioners are eleven minors and the non-governmental organization that shelters, educates, and cares for the eleven minors. Each child claims to have been subjected to child abuse and defilement in Meru County, where police "neglected...or otherwise failed" to investigate or protect the children in any way. 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.”

The appellant was convicted of rape and sentenced to 12 years imprisonment with hard labor and six strokes of a cane. The 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. The appellant took her to a house where he and two colleagues raped the complainant all night in turns. The appellant testified at trial that they had an "arrangement" with the complainant and did not rape her. The complainant testified that she had withdrawn her consent before intercourse with the appellant and his co-perpetrators. The morning after, the complainant escaped the house to report the rapes to the police and received treatment for her injuries at a hospital. Ruling on the appeal, the High Court found that that the complainant withdrew her initial consent before the sexual act and that the appellant is guilty of rape. The Court also reduced the sentence to six years imprisonment and set aside the corporal punishment, which was outlawed by the Criminal Law (Amendment) Act of 2003.

The appellant was charged and convicted of defilement and indecent assault of a six-year-old girl. 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 the six-year-old complainant described the incident in detail, the medical evidence was corroborative, and the appellant's abrupt and unexplained disappearance after the incident was also properly considered corroborative evidence. The Court also held that the sentences were not excessive.

The appellant was charged with three criminal violations in connection with his and his coconspirators' robbery of the complainant and corresponding violence: (1) aggravated robbery with violence, (2) rape of the complainant's niece during the robbery, and (3) possession of suspected stolen property. The trial court found the appellant guilty on all counts, but the first count was reduced to simple robbery. The trial court sentenced him to ten years imprisonment for robbery, ten years imprisonment for rape, and 12 months for handling suspected stole goods, to be served concurrently. Without citing a specific reason for reducing the aggravated robbery with violence charge, the trial magistrate noted that the complainant testified that she was not injured in the robbery. The appellant first appealed to the High Court, which found the appeal had no merit and that the appellant was guilty of aggravated robbery with violence. The High Court vacated the conviction and 10-year sentence for simple robbery and imposed the death sentence for robbery with violence. In this appeal to the Court of Appeal (Kisumu), the appellant raised four concerns: (1) whether he was improperly identified as the robber and rapist because the attack took place at night when it was dark, (2) whether the first appellate court properly re-evaluated the evidence, (3) whether the High Court's substitution of simple robbery with aggravated robbery with violence was proper, and (4) whether the State was required to file a cross-appeal to entitle the High Court to substitute the simple robbery conviction with aggravated robbery with violence. The High Court documents show that the appellant was warned more than once and that at the earliest opportunity the State Counsel would seek to increase the sentence to capital robbery, but the appellant decided to proceed with the appeal. Quoting its precedent, the lower courts' records, and the Criminal Procedure Code Sec. 354, the Court of Appeal rejected all aspects of the appeal and upheld the death sentence for robbery with violence.

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.

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.

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.