The Sexual Offences Act has also been criticised for discriminating against boys.
A growing chorus of Kenyan judges is calling for urgent reforms to the Sexual Offences Act, particularly concerning its treatment of minors.
Judicial concerns centre on mandatory sentencing, mutual defilement cases among teenagers, and the criminalisation of consensual adolescent relationships—issues that critics argue have led to disproportionate punishments and systemic injustices.
This judicial unease coincides with an ongoing constitutional challenge filed by three teenagers at the High Court in Milimani, Nairobi —two boys and a girl, aged between 17 and 19. The two boys were charged with defilement at Makadara Magistrate’s Court in July.
Milimani Law Courts in Nairobi.
They face a mandatory 20-year sentence under Section 8(1) and 8(3) of the sexual offences law. Their trial has been suspended pending a High Court ruling on their petition, which seeks to decriminalise consensual sexual activity between adolescents.
Judicial alarm raised
The petitioners argue that the sexual offences law’s blanket criminalisation of consensual, non-exploitative relationships between teenagers violates constitutional rights.
Their plea reads: “The petitioners pray for a declaration that the blanket criminalization of mutually consensual, non-coercive and non-exploitative sexual relations between adolescents under Sections 8, 9, and 11 of the Sexual Offences Act… violates the rights of adolescents as provided under the Constitution.”
Their lawyer seeks to compel the Director of Public Prosecutions (DPP) to propose amendments decriminalising such relationships.
The petition is backed by the Network for Adolescent and Youth of Africa (NAYA), which contends that punitive measures—rather than rehabilitative interventions—harm teenagers’ futures, disrupt education, and inflict lasting psychological damage.
Judges across Kenya’s High Court and Court of Appeal have voiced concerns over the sexual offences law’s rigidity.
The courts have, on several occasions, lamented that the Act was drafted with predatory adults in mind, not the teenagers and minors experimenting with each other.
In a 2019 Court of Appeal decision, the judges actually called for ‘a serious re-examination’ of the Act to cater for adolescent-to-adolescent cases. Other judges have said the Act ought to be reexamined to cover conduct involving children that currently slips through.”
Mandatory sentence flaw
Key criticisms include mandatory minimum sentences, with the courts lamenting the lack of judicial discretion, leading to excessive punishments for minors.
In 2022, the Machakos High Court declared mandatory sentences unconstitutional, citing violations of judicial independence under Article 28 of the Constitution.
“This court does not doubt the good intentions of the drafters of the Sexual Offences Act in taking steps to curb the menace of sexual offences and the trauma it causes to the victims of the said offence. The perpetrators of the said offences must be condemned by all means,” said the court.
“However, the sentences to be imposed must meet the constitutional dictates,” it added, declaring that to the extent that the Act prescribes minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentences fall foul of article 28 of the Constitution.
However, the Supreme Court later clarified in 2024 that while minimum sentences stand, judges retain discretion to impose harsher penalties.
The Sexual Offences Act has loopholes that can be exploited.
Predator vs peer failure
Another criticism touches on the failure to distinguish between predators and teenagers. Judges argue that the law conflates predatory adults with consenting adolescents.
A Nairobi High Court judge recently warned: “The appeal should act as a warning to the boy child that having a high school girlfriend can be the gateway to a life behind bars.”
While allowing an appeal by two university students sentenced to 15 years for defiling a high school girl, the High Court lamented the law’s harshness, warning that it turns teenage romance into a “gateway to prison.”
This followed the release of two university students jailed for defiling a high school girl, highlighting the law’s gendered impact.
Also of concern to the judges is discrimination in prosecution, with the superior courts ruling that charging only male minors in mutual defilement cases is discriminatory.
In a landmark 2017 Nairobi case, a judge questioned: “Does a boy under 18 have legal capacity to consent? Haven’t both children defiled themselves?”
The court awarded Sh200,000 in damages to a teenage boy sentenced to 15 years after his girlfriend became pregnant, emphasising rehabilitation over punishment.
Several rulings illustrate the judiciary’s pushback.
For instance, the High Court in Siaya overturned the conviction of a 15-year-old boy convicted of defiling a 17-year-old girl, who had his 15-year sentence.
The court ruled that both minors were victims needing counselling, not incarceration.
“Both the appellant and the complainant were minors at the time of commission of the offence. The complainant was senior in age to the appellant and the blame ought not to have been wholly shifted to the appellant but it ought to have been apportioned against both the complainant and the appellant,” said the High Court.
“Given that both the appellant and the complainant were minors, they both needed protection against harmful activities and none of them ought to have been sent to prison.”
The judge set aside the sentence and placed the boy on probation, stating that the blame should not have been shifted entirely to the boy.
The High Court in Mombasa also, in another ruling, stressed mandatory age assessments for child offenders after overturning a 20-year sentence for a 15-year-old accused of defiling a 14-year-old. The court overturned the sentence, rebuking the trial court for ignoring age assessments crucial for fair sentencing.
Discrimination in prosecution
The Judiciary’s critiques align with ongoing parliamentary reviews of the Sexual Offences Amendments Bill (2025), which seeks to introduce “close-in-age” exceptions and distinguish between exploitative and consensual acts.
Legal scholars argue that the current framework creates “problematic jurisprudence,” disproportionately punishing boys while ignoring mutual culpability.
As the Court of Appeal noted in a 2019 ruling: “A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue.”
“Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation”.
Amid the ongoing debate, Kenya faces a pivotal moment, to uphold a rigid law that risks harming minors or reform it to reflect adolescent realities.
With judges, activists, and lawmakers urging change, the Sexual Offences Act’s future hinges on balancing child protection with proportionality—a debate long overdue in Kenya’s legal landscape.
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