Victoria Loch Owino’s court case challenges legal provisions governing consent and rights within marriage.
Victoria Loch Owino wants the court to strike down two legal provisions and affirm that marriage does not remove the need for sexual consent.
Victoria Loch Owino has moved to court to challenge Kenya’s conjugal rights law and seek recognition of marital rape. She wants the court to declare that sex without either spouse’s consent amounts to rape within marriage.
Her case targets Section 84(3) of the Marriage Act, 2014, and Section 43(5) of the Sexual Offences Act. She argues that the provisions undermine bodily autonomy and deny married people equal protection against sexual violence.
Challenge to conjugal rights and sexual consent
Section 84(3) allows a spouse to seek restitution of conjugal rights when their partner withdraws without reasonable grounds. A court may grant the application if it finds the claims true and no legal grounds prevent it.
However, Owino argues that this conflicts with Section 84(2), which bars actions seeking to compel spouses to cohabit. She also questions how judicial officers should interpret “reasonable grounds” when assessing a spouse’s decision to leave.
Owino describes the restitution provision as a colonial inheritance from British law that has no place in modern society. Although marriage creates a union, she maintains that each spouse retains control over their own body.
She further challenges the marital exemption under Section 43(5) of the Sexual Offences Act. In her argument, the provision rests on the mistaken assumption that marriage provides permanent consent to sex.
Owino says forced cohabitation and non-consensual sexual acts violate constitutional protections against cruel, inhuman or degrading treatment. She also argues that Kenya’s commitments under the Convention on the Elimination of All Forms of Discrimination Against Women require action to criminalise marital rape.
Prosecution guidelines and a separate divorce petition
Alongside the constitutional declarations, Owino seeks orders directing the Inspector-General of Police and DPP to issue prosecution guidelines. These would affirm that authorities can receive reports, investigate and prosecute sexual offences between spouses without marital-status discrimination.
She has sued the Attorney-General, Parliament, the Director of Public Prosecutions and the Inspector-General of Police. Her case also names the Kenya National Commission on Human Rights and the National Gender and Equality Commission as interested parties.
Meanwhile, lawyer Rogers Monda has separately petitioned Parliament to allow divorce by mutual agreement. He argues that couples often manufacture allegations of cruelty or desertion to establish legal grounds for ending marriages.
Monda cited the United States, United Kingdom, Australia and Namibia as countries recognising mutual consent as grounds for divorce. He said Justice Lawrence Mugambi declined to order legislative changes but noted that MPs could introduce them.
He also said Suna West MP Peter Masala proposed similar changes in 2023. However, that Bill did not advance beyond its First Reading.
