The High Court has ruled that applying criminal penalties to consensual sexual relationships between minors is unconstitutional, marking a significant shift in how Kenya’s Sexual Offences Act may be enforced.
In a judgment delivered in Constitutional Petition No. E490 of 2025, Justice Bahati Mwamuye found that prosecuting adolescents under Sections 8, 9, 11 and 43 of the Act—where the conduct is consensual, non-coercive and non-exploitative—violates constitutional protections.
The court held that the law, as currently applied, fails to distinguish between predatory sexual offences and relationships involving adolescents who are close in age, resulting in disproportionate and constitutionally untenable outcomes.
“Children require protection, but also guidance,” the judge observed, noting that punitive measures are ill-suited to cases involving consensual adolescent conduct absent exploitation or coercion.
In a key order, the court directed the Office of the Director of Public Prosecutions (DPP) to revise its charging guidelines to prevent consenting teenagers from being routinely prosecuted for defilement.
The ruling follows growing concern among legal practitioners and policymakers over the impact of the Sexual Offences Act, particularly its mandatory sentencing framework. Critics have long argued that the law’s blanket approach does not adequately account for the realities of adolescent relationships.
Petitioners in the case told the court that criminalising consensual relationships among teenagers has the unintended effect of pushing young people away from reproductive health services and support systems, undermining efforts to safeguard their well-being.
Legal experts, including Caroline Oduor, have similarly questioned whether the law meets constitutional standards on dignity, proportionality and the best interests of the child.
The issue has also surfaced in Parliament. Earlier this year, members of the Constitutional Implementation Oversight Committee, during visits to correctional facilities in Kisumu County, were told that mandatory sentences—often ranging from 15 to 20 years—limit judicial discretion and contribute to prison congestion.
Particular concern has centred on so-called “Romeo and Juliet” cases, where teenagers close in age are prosecuted under provisions designed to address sexual exploitation. In such cases, factors like mutual consent and age proximity are frequently overlooked.
Data presented to lawmakers indicates that sexual offences account for more than 31 per cent of Kenya’s prison population, with defilement cases forming the bulk.
Meanwhile, in a separate decision, the High Court signalled a broader rights-based approach in another ruling by Justice Mwamuye, holding that Kenyan law does not expressly prohibit the alteration of sex or gender markers on official documents.
In that case, the court found that the refusal by state agencies to amend the documents of transgender activist Audrey Mbugua Ithibu violated constitutional rights, including equality, dignity, privacy and fair administrative action.
Together, the rulings underscore the court’s increasing willingness to interrogate the application of legislation against constitutional standards, particularly in areas touching on personal autonomy, identity and the rights of vulnerable groups.
High Court Restricts Use of Sexual Offences Law in Consensual Teen Relationships
