A High Court ruling on the application of the Sexual Offences Act has sparked debate over how Kenya’s legal system should handle cases involving adolescents, with concerns emerging over possible gaps in enforcement.
The judgment, delivered on Wednesday in Petition E490 of 2025, found that prosecuting adolescents engaged in consensual, non-coercive peer relationships violates constitutional rights.
The court cited protections including dignity, equality, privacy, education, health, and the best interests of the child.
Former Law Society of Kenya (LSK) President Faith Odhiambo said the decision marks a turning point in how the law approaches adolescent sexuality.
She noted that although the Sexual Offences Act was enacted to protect children from abuse, its broad application has often led to the prosecution of teenagers in consensual relationships.
“The Court has acknowledged a long-standing tension in our legal system,” Odhiambo said.
“Adolescents have been drawn into the criminal justice system for conduct linked to their stage of development, while also being unable to access sexual and reproductive health services due to fear of prosecution.”
In its orders, the court directed the Office of the Director of Public Prosecutions (ODPP) to develop guidelines distinguishing consensual peer relationships from exploitative conduct.
The National Police Service was also instructed to review arrest procedures, while state agencies were asked to ensure adolescents can access reproductive health information without fear.
Despite welcoming the ruling, Odhiambo raised concerns about its potential impact, particularly in the context of rising gender-based violence (GBV) and femicide cases in Kenya. She questioned whether the decision could be misused.
“Distinguishing consensual relationships from exploitation is complex,” she said.
“Without clear safeguards, there is a risk that predatory behaviour could be presented as consent, especially where there are differences in maturity or power.”
Her remarks reflect wider concerns among legal experts about how the ruling will be implemented.
Questions have been raised about how authorities will determine genuine consent among adolescents and prevent abuse of the new interpretation.
Odhiambo also pointed to ongoing weaknesses in the criminal justice system, including delays in investigations and low conviction rates in sexual offence cases.
She warned that reforms must not weaken protections for victims, particularly girls who are most affected by sexual violence.
Calls are now growing for amendments to the Sexual Offences Act to provide clearer legal guidance.
“The law must protect young people without exposing them to further harm,” Odhiambo said.