There is no law that allows sexual relations between cousins, lawyer Edwin Sifuna has said.
Sifuna said the section that prohibited incest by listing all relatives and leaving out the cousin was intentional.
Section 20(1) and (2) of the Sexual Offences Act that provides for the offence of incest does not list a cousin.
"This was because some communities or religions allow marriage between cousins," the lawyer told the Star on Thursday.
"Those supporting the acts are looking at it from the wrong end. The law does not allow sex or sexual acts between cousins."
Sifuna's remarks came after a High court ruled it was not illegal for cousins to have sex.
But he said
the High Court has not told people to go and have sex with their cousins.
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The lawyer explained the law is not new and has been in existence for more than 10 years now.
"The thinking of Parliament was that they were not going to criminalise something that was already being practised in some cultures and religions," he said.
Sifuna added that no country has a law on everything.
He said that besides the law of the land there is the moral law that governs a society or a community.
"There are many sources of law that one subscribes to, they include moral law, religion and social law, how one has been socialised," he said.
Sifuna further noted the principle of law - when it comes to criminal offences - is that unless it specifically prescribes a certain activity as criminal, it should not attract a criminal sanction.
He added that the law will always specify the act of criminal conduct.
He clarified that if the offence is to attract a criminal sanction, that one should be jailed or fined, then it must be specifically provided in the state law.
There has been a debate in the country after High Court Judge J A Makau disagreed with the trial court for punishing a man for incest.
The man had been jailed for 10 years.
According to the Act, a male member of the family cannot have a sexual relationship with his daughter, sister, granddaughter, mother, niece, untie, or grandmother.
Incest by a female is listed as with a father, son, grandfather, uncle, brother, nephew and grandson.