Landmark ruling ends automatic defilement charges against boys in consensual teenage relationships
Justice Bahati Mwamuye during proceedings at Milimani Law Court.
What you need to know:
- Landmark High Court ruling protects adolescents from criminal prosecution over consensual peer relationships and restores constitutional rights.
- Rights activists hail decision ending automatic defilement charges against teenagers involved in consensual age-appropriate relationships nationwide.
In 2022, TA and AMO began a consensual relationship on Facebook. It then blossomed into romance characterised by mutual consent and regular visits to each other’s homes. In May 2023, TA realised she was pregnant. AMO was then arrested and charged with defilement at the age of 17. He spent years under the shadow of criminal prosecution. The case was finally withdrawn in May 2025, according to details contained in a petition filed in court.
In another incident, HSO, 17, and CNK, 16, were in a consensual relationship when police raided their home in February 2025 and detained them for three days. HSO was later charged with defilement and held in custody after failing to raise Sh50,000 bail, a sum far beyond the reach of young people from low-income households.
The two cases sparked debate among human rights and gender activists over whether the law discriminates against one of the parties involved: the boy. As a result, a petition was filed in August 2025 by the Centre for Reproductive Rights on behalf of three adolescents and the Network for Adolescents and Youth of Africa (Naya Kenya).
The case challenged the blanket application of Sections 8, 9, 11, and 43(4)(f) of the Sexual Offences Act, which criminalise sexual conduct involving persons under 18 without distinguishing between exploitative abuse and consensual relationships between peers. Because of the law, adolescents who engage in age-appropriate relationships have been arrested, detained, prosecuted, and labelled criminal offenders, with consequences affecting their education, family stability, and psychosocial health.
Last week, the High Court of Kenya issued a landmark decision finding that the application of provisions of the Sexual Offences Act exposing adolescents to criminal prosecution for consensual, non-coercive peer relationships violates their right to equality and freedom from discrimination. In its decision, the court clearly stated that the Act is discriminatory and must be interpreted and applied consistently with the Constitution.
In light of the ruling, adolescent girls and boys in consensual sexual relationships could now avoid arraignment on defilement charges, provided they are close in age and both consent to the relationship. There must also be no coercion.
Justice Bahati Mwamuye held that the enforcement of Sections 8, 9, and 11 of the Sexual Offences Act against adolescents engaged in consensual and non-exploitative conduct violates constitutional rights, including equality, dignity, privacy, health, and children’s rights. “In the final analysis, the petition succeeds in substantial parts,” the judge ruled, adding that the law “must be read in a manner consistent with the Constitution” and enforced in line with constitutional values.
The decision is viewed as a major victory for boys, many of whom have, in numerous instances, been arrested, charged with defilement, and convicted. In such cases, they are usually accused of committing a sexual offence.
Legal reforms
However, the court affirmed that adolescents should not be criminalised, opening the door for legal reforms, improved health access, comprehensive sexuality education, and dignity for thousands of young Kenyans.
“Young people in Kenya have been living in fear—afraid to go to a clinic, afraid to speak to an adult, and afraid that a relationship could land them in a police cell. This decision restores adolescents’ dignity and their right to health. We will continue to push for full reform of the Sexual Offences Act so that no young person is ever again prosecuted for simply growing up,” said Victor Rasugu, executive director of Naya Kenya.
Marion Wanjiku, a mother, supported the decision, saying it would ensure male adolescents are not discriminated against. “As a mother of a son, I definitely support the ruling. My son could find himself in such a situation, and I would not want him subjected to a possible jail term in such circumstances.”
She, however, advised adolescents to abstain from sex until they come of age to avoid finding themselves in difficult situations. “Despite the court’s decision, young men can still find themselves trapped in situations where their partners later claim they were coerced or forced into sex.”
Justice Mwamuye said the two cases mentioned above have now been stayed and will not proceed in their current form. The petitioners argued that the law failed to distinguish between exploitation and ordinary adolescent relationships, exposing teenagers to arrest, detention, and lengthy prison sentences.
Authorities had maintained that such protections were necessary to safeguard children and prevent loopholes for adult predators. The court also ordered state agencies responsible for health, education, and child protection to develop coordinated policy and implementation measures to ensure adolescents can access sexual and reproductive health information and services without fear of criminalisation.
The court further ordered that criminal proceedings against the minors who were petitioners in the case be stopped immediately. The government, through the Director of Public Prosecutions, the Attorney General, the Inspector General of Police, and the Chief Magistrates’ Court, opposed the petition. They argued that the matter had already been settled in a previous case involving a 16-year-old boy and warned that lowering the threshold could expose minors to premature sex.
The state further warned that allowing the petition would amount to a collateral attack on earlier judgments and open the floodgates to endless litigation. Justice Mwamuye’s decision does not legalise underage sex but introduces prosecutorial discretion based on consent. Factors such as age proximity, consent, and the absence of coercion, exploitation, or power imbalance will now be considered before charges are filed.
