In a detailed and far-reaching judgment, Justice Bahati Mwamuye has delivered what is set to become a defining court ruling on how Kenya’s Sexual Offences Act should be applied in cases involving adolescents engaged in consensual, non-exploitative relationships.
Reading the final orders virtually, the court held that sections 8, 9 and 11 of the Sexual Offences Act, when applied without distinction, risk violating constitutional protections when dealing with adolescents of close age who engage in consensual conduct absent coercion, abuse, or power imbalance.
“In the final analysis, the petition succeeds in substantial parts,” the judge stated, adding that the statutory framework “must be read in a manner consistent with the Constitution” and enforced in a way that aligns with constitutional values. “Anything less would permit criminal law to operate in a manner disconnected from constitutional values,” the court emphasized.
At the heart of the ruling is a declaration that applying the law uniformly to all adolescent sexual conduct without considering context may be unconstitutional. The court ruled that such application, in cases involving “consensual, non-coercive, and non-exploitative sexual conduct between adolescents of close age proximity,” is inconsistent with Articles 27, 28, 31, 43 and 53 of the Constitution.
Justice Mwamuye issued a mandatory order directing investigative and prosecutorial agencies to distinguish between consensual adolescent relationships and exploitative or coercive conduct. The court stressed that law enforcement must separate cases involving mutual peer relationships from those involving abuse, coercion, or power imbalance.
The Director of Public Prosecutions (DPP) was further directed to “formalize, publish, and gazette prosecutorial guidelines” within a reasonable period to ensure uniformity and transparency in handling such cases. These guidelines are expected to be based on existing internal frameworks but aligned with constitutional standards.
In addition, the National Police Service was ordered to review its investigative and arrest protocols to ensure compliance with the ruling. State organs responsible for health, education, and child protection were also directed to develop coordinated policies that guarantee adolescents access to sexual and reproductive health information “without fear of criminalization” where circumstances fall within the court’s interpretation.
The court also confirmed earlier conservatory orders issued in August 2025 and permanently stayed ongoing criminal proceedings in related cases, “insofar as they relate to consensual, non-coercive, and non-exploitative close-age adolescent conduct.”
However, the ruling made clear that exploitative or abusive conduct remains fully prosecutable under the law.
“This being a public interest litigation matter, each party shall bear its own costs,” Justice Mwamuye ruled, closing the file.
The judgment is however likely to trigger significant policy and enforcement reforms across criminal justice institutions, particularly in how adolescent-related sexual offence cases are investigated and prosecuted.
