Kenya: Court Declares Prosecution of Consensual Adolescent Peer Relationships Unconstitutional

Nairobi — The High Court has delivered a landmark judgment declaring that the application of Kenya’s Sexual Offences Act to prosecute adolescents engaged in consensual, non-coercive peer relationships violates multiple constitutional rights.

Justice Bahati Mwamuye made the finding on Wednesday, May 20, in a decision expected to significantly reshape the country’s approach to adolescent sexuality and criminal justice.

Justice Mwamuye held that criminal enforcement of Sections 8, 9 and 11 of the Sexual Offences Act against adolescents involved in consensual relationships of close age proximity was unconstitutional where there was no evidence of exploitation, coercion, abuse or power imbalance.

“The impugned statutory framework, properly construed, must be read in a manner consistent with the Constitution, and enforcement must align with that constitutional reading,” Justice Mwamuye stated.

“Anything less would permit criminal law to operate in a manner disconnected from constitutional values.”

The case, filed as Petition E490 of 2025, challenged what petitioners described as the broad and harmful criminalization of adolescent peer relationships under laws intended to protect children from sexual abuse and exploitation.

The court ruled that such prosecutions violate constitutional protections under Articles 27, 28, 31, 43 and 53 of the Constitution, which guarantee equality, dignity, privacy, health, education and the best interests of the child.

Justice Mwamuye directed investigative and prosecutorial agencies to distinguish between consensual, non-exploitative adolescent relationships and cases involving coercion, abuse, exploitation or significant power imbalances.

“A mandatory order be and is hereby issued to the relevant investigative, prosecutorial, and enforcement agencies requiring that they shall, in applying the Sexual Offences Act to persons below the age of eighteen years, distinguish between consensual, non-coercive and non-exploitative sexual conduct between adolescents of close age proximity … and non-consensual, coercive, exploitative sexual conduct,” the judge ruled.

Fresh prosecution guidelines

Under the orders, the Office of the Director of Public Prosecutions has been directed to formalize, publish and gazette prosecutorial guidelines on handling cases involving consensual adolescent peer relationships to ensure transparency and constitutional compliance.

The National Police Service was also ordered to review investigative and arrest protocols relating to sexual offences involving minors.

Additionally, the court directed state agencies responsible for health, education and child protection to develop coordinated policies enabling adolescents to access sexual and reproductive health information and services without fear of criminalization.

The ruling permanently stayed criminal proceedings in two Makadara cases — Criminal Case No. 34 of 2025 and Criminal Case No. MSCO/E239 of 2023 — to the extent that they involved consensual, non-coercive and non-exploitative adolescent conduct.

The court further ordered each party to bear its own costs, noting that the matter constituted public interest litigation.

Reacting to the judgment, former Law Society of Kenya President Faith Odhiambo described the decision as a major turning point in Kenya’s legal treatment of adolescent sexuality.

“The Court ruled that the misapplication of the Sexual Offences Act to prosecute adolescents engaged in consensual, non-coercive peer relationships violates their constitutional rights to equality, dignity, privacy, health, education and the best interest of the child,” Odhiambo said.

She noted that the judgment addressed long-standing tensions within Kenya’s legal framework, where laws designed to protect children from abuse have at times been broadly applied against teenagers involved in consensual peer relationships.

Difficult implementation

According to Odhiambo, the ruling acknowledged the evolving capacities of adolescents and the reality that fear of prosecution had pushed many young people away from accessing sexual and reproductive health services.

However, she cautioned that the decision could raise difficult implementation questions, particularly against the backdrop of Kenya’s ongoing gender-based violence and femicide crisis.

“But we must ask the difficult questions,” she said. “Will this judgment inadvertently create loopholes that perpetrators exploit?”

Odhiambo warned that distinguishing consensual adolescent relationships from exploitative conduct could become highly subjective if safeguards are not clearly defined.

“The criminal justice system has failed women and girls through inadequate investigations, delayed prosecutions and impunity for perpetrators,” she said.

She argued that reforms to the Sexual Offences Act must remain survivor-centered while balancing protections for adolescents engaged in age-appropriate peer relationships.

“We need legislative amendments that protect juveniles from sexual violation without victimizing them for age-appropriate peer relationships while tightening enforcement against exploitation and abuse,” Odhiambo said.

“The judgment’s legacy will depend entirely on its implementation and future interpretation by courts and prosecutors.”

By Capital FM.