NAIROBI, Kenya — The High Court has ruled that consensual relationships between adolescents of close age should not automatically be treated as sexual offences, marking a significant interpretation of how Kenya’s Sexual Offences Act should be applied.
Justice Bahati Mwamuye held that sections of the Sexual Offences Act must be interpreted in line with the Constitution, particularly in cases involving non-coercive, non-exploitative relationships between minors of similar age.
The judgment was delivered virtually.
Constitutional interpretation
In his ruling, Justice Mwamuye said applying the law without considering context risks criminalising conduct that may fall outside exploitative behaviour.
He noted that adolescent relationships must be assessed carefully to distinguish between consensual peer interactions and cases involving abuse, coercion, or power imbalance.
“In the final analysis, the petition succeeds in substantial parts,” the judge stated, adding that the law must align with constitutional values.
Court cites rights protections
The court found that blanket application of sexual offence provisions to all adolescent conduct could violate constitutional protections under several articles, including equality, dignity, privacy, and children’s rights.
The judge said that criminal law must not operate in isolation from constitutional safeguards.
He ruled that cases involving “consensual, non-coercive, and non-exploitative sexual conduct between adolescents of close age proximity” fall within a different legal context that must be treated distinctly by enforcement agencies.
Orders to police and prosecutors
The court issued binding directions to key justice institutions, including the Office of the Director of Public Prosecutions (DPP), the National Police Service, and child protection agencies.
The DPP was ordered to develop, publish, and gazette clear prosecutorial guidelines to ensure uniform handling of adolescent-related cases.
The court also directed police to revise investigative and arrest procedures to reflect the ruling and ensure proper assessment of context before charges are preferred.
State agencies involved in health, education, and child protection were further instructed to develop coordinated policies that allow adolescents access to reproductive health information without fear of criminalisation in appropriate cases.
Limits of the ruling
The court was clear that the judgment does not shield exploitative or coercive conduct from prosecution.
It reaffirmed that sexual abuse, coercion, and cases involving significant power imbalance remain fully punishable under Kenyan law.
Existing cases affected
The court also confirmed conservatory orders issued earlier in 2025 and permanently stayed ongoing criminal proceedings involving similar circumstances, where applicable.
It ruled that each party will bear its own costs, citing the public interest nature of the case.
The judgment is likely to influence police training, prosecutorial standards, and child protection policy frameworks, particularly in balancing child protection with constitutional rights.
