Blanket criminalisation of consensual sex between minors unconstitutional-Kenya court

The High Court has ruled that teenagers should not be automatically prosecuted for defilement where the sexual relationship is consensual, non-coercive and non-exploitative.

In a landmark decision in Constitutional Petition No. E490 of 2025, Justice Bahati Mwamuye declared that the blanket application of parts of the Sexual Offences Act to consensual adolescent relationships is unconstitutional.

The ruling affects Sections 8, 9, 11 and 43 of the Act.

Justice Mwamuye held that the law, as applied, fails to properly separate predatory sexual conduct from relationships involving adolescents who are close in age and acting without force, pressure or exploitation.

The court said children in such situations need protection, guidance and support, rather than criminal punishment.

It also directed the Office of the Director of Public Prosecutions to revise its prosecution guidelines to ensure that consenting teenagers are not charged with defilement under provisions meant to punish sexual predators.

The decision follows concerns raised by legal experts and child rights advocates that the current framework treats all sexual activity involving persons under 18 in the same way, regardless of context.

Lawyer Caroline Oduor was among those who argued that such blanket criminalisation fails to meet constitutional standards on dignity, proportionality and the best interests of the child.

The petitioners also argued that prosecuting consensual adolescent relationships discourages teenagers from seeking reproductive health services and cuts them off from support systems that could better protect their welfare.

The ruling comes amid renewed calls for Parliament to review the Sexual Offences Act No. 3 of 2006.

Concerns have also been raised about mandatory sentences of 15 to 20 years in defilement cases, with prison officials and legal experts warning that they limit judicial discretion.

During recent visits to correctional facilities in Kisumu County, stakeholders told the Constitutional Implementation Oversight Committee that many so-called “Romeo and Juliet” cases involve teenagers close in age, where consent, age proximity and lack of predatory intent are often not properly considered.

Figures presented to lawmakers showed that sexual offences account for more than 31% of Kenya’s prison population, with defilement cases making up the majority.

In a separate decision, the High Court also ruled that Kenyan law does not expressly bar the alteration of sex or gender markers on official documents.

Justice Mwamuye held that state agencies violated the rights of transgender activist Audrey Mbugua Ithibu by refusing to amend her documents.

The court found that the refusal breached her rights to equality, dignity, privacy, freedom of expression and fair administrative action.