The High Court has lifted the blanket approach used in handling cases involving consensual sexual activity between minors.
Justice Bahati Mwamuye ruled that consenting teenagers should not automatically be charged with defilement, calling for a review of how such cases are assessed and prosecuted.
Mwamuye further held that the application of Sections 8, 9, 11, and 43 of the Sexual Offenses Act to adolescents engaging in consensual, non-coercive, and non-exploitative sexual relationships is unconstitutional.
High Court Lifts Blanket Ban on Consensual Sex Between Minors
He stated that children deserve protection, not punishment, in cases involving consensual adolescent sexual activity.
At the same time, he directed the Director of Public Prosecutions (DPP) to revise prosecution guidelines on defilement cases.
The petition leading to the ruling was filed in August 2025 by the Centre for Reproductive Rights and its partner, the Reproductive Health Network Kenya (RHNK), on behalf of three affected adolescents and the Network for Adolescents and Youth of Africa (NAYA), a youth-led organization.
The case challenged the constitutionality of provisions in the Sexual Offences Act that expose adolescents to arrest, detention, stigmatization, and imprisonment for consensual peer relationships.
It also raised concerns over systemic failures that deny adolescents access to safe, confidential sexual and reproductive health information and services.
Teenagers Arrested and Prosecuted Over Consensual Relationships
In one of the cases presented, a 17-year-old boy identified as HSO entered into a consensual relationship with a 16-year-old girl, CNK. Both came from vulnerable backgrounds and lacked consistent caregiver support. They later began living together.
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In February 2025, police raided their home, arrested both teenagers, and detained them at Kasarani Police Station for three days.
CNK was found to be pregnant at the time of arrest. HSO was charged with defilement and remained in custody as he was unable to raise bail. He was later released following intervention by NAYA.
In another case, AMO and TA, both adolescents, began a consensual relationship in 2022 that later resulted in pregnancy.
When TA informed her family, AMO was arrested and charged with defilement at the age of 17. TA was not charged but was listed as a prosecution witness against him.
AMO was released on bond and spent years facing criminal proceedings before the charges were withdrawn in May 2025 after it was confirmed he was a minor at the time of the alleged offence.
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Rights Groups Challenge Criminalization of Adolescent Relationships
The Katiba Institute and the Centre for Reproductive Health told the High Court that Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act are overly broad, effectively criminalizing consensual sexual relationships between teenagers.
They argued that the law, while intended to protect children from abuse and exploitation, has in practice been misapplied, leading to arrests, detention, and prosecution of adolescents engaged in consensual, non-coercive relationships.
The petitioners further argued that the provisions fail to distinguish between exploitative sexual abuse and consensual peer relationships, resulting in prosecutions that do not reflect the best interests of the child, fair trial protections, or the developmental realities of adolescence.
