The High Court has ruled that prosecuting adolescents involved in consensual, non-coercive peer relationships under Kenya’s Sexual Offences Act violates constitutional rights.

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NAIROBI, Kenya, May 21 — 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.

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“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.

📰 Source: Capital FM Kenya