High Court Declares Prosecution of Consensual Adolescent Relationships Unconstitutional

The High Court of Kenya has delivered a landmark judgment declaring that prosecuting adolescents involved in consensual, non-coercive peer relationships under the Sexual Offences Act violates constitutional rights. Justice Bahati Mwamuye ruled that such prosecutions infringe upon rights guaranteed under Articles 27, 28, 31, 43, and 53 of the Constitution, which encompass equality, dignity, privacy, health, education, and the best interests of the child.

The court directed investigative and prosecutorial agencies to distinguish between consensual, non-exploitative adolescent relationships and cases involving coercion, abuse, exploitation, or significant power imbalances. Specifically, the Office of the Director of Public Prosecutions was ordered to formalize and publish prosecutorial guidelines on handling cases involving consensual adolescent peer relationships to ensure transparency and constitutional compliance. Additionally, the National Police Service was instructed to review investigative and arrest protocols relating to sexual offences involving minors.

State agencies responsible for health, education, and child protection were also mandated to develop coordinated policies enabling adolescents to access sexual and reproductive health information and services without fear of criminalization. The ruling permanently stayed criminal proceedings in two Makadara cases—Criminal Case No. 34 of 2025 and Criminal Case No. MSCO/E239 of 2023—to the extent that they involved consensual, non-coercive, and non-exploitative adolescent conduct.

This judgment is expected to significantly reshape Kenya's approach to adolescent sexuality and criminal justice, emphasizing the need to protect the rights and well-being of young individuals while addressing concerns related to exploitation and abuse.