Court okays consensual teen sex: How teenagers faced with indecent assault charges fought back

Under-18 adolescents may not automatically face prosecution for consensual sexual activity with peers of a similar age, following a High Court ruling that has sparked nationwide debate on the interpretation of Kenya’s Sexual Offences Act..

In a judgment that challenges aspects of how the Sexual Offences Act is applied, High Court Judge Bahati Mwamuye ruled on Wednesday that a blanket application of the law to all sexual activity involving minors, without considering whether there is coercion, exploitation or significant power imbalance, may be inconsistent with the Constitution.

He said that the application of Sections 8, 9, 11, and 43(4)(f) of the Sexual Offences Act is inconsistent with the Constitution, particularly Articles 10, 27, 28, 31, 43 and 53, which establish protection for equality, human dignity, privacy, socio-economic rights, and children’s welfare.

Justice Mwamuye ordered that the Director of Public Prosecution (DPP) and the police amend their guidelines to factor in incidents of consensual adolescent peer relationships.

Consent clarified

“A mandatory order is hereby issued to the relevant investigative, prosecutorial and enforcement agencies requiring that they shall, in applying the Sexual Offences Act, to persons below the age of 18 years, distinguish between consensual, non-coercive and non-exploitative sexual conduct of adolescents of close age proximity, absent evidence of coercion, exploitation, abuse, and power imbalance on one hand, and non-consensual, coercive and exploitative, abusive conduct, involving power imbalance and or sexual conduct not involving adolescents of not close age proximity on the other hand,” ordered Mwamuye.

He also directed that agencies in charge of health, education and child protection should develop coordinated policy and implementation measures to ensure adolescents access to sexual and reproductive health services without fear.

The case was filed by three teenagers identified as HSO, AMO and TA, who argued that the current legal framework criminalises consensual adolescent relationships and exposes young people to prosecution, stigma and long-term consequences.

The first petitioner, HSO, aged 17, was charged at Makadara Law Courts with defilement, allegedly occurring on January 8, and February 17, 2025 in Riruta.

He is accused of having a relationship with a 15-year-old girl, whom he described as his girlfriend. In the alternative, the State is accusing him of indecently touching her.

His lawyers, Martin Onyango and Prudence Mutiso, argued that the charges arise from a mutual romantic relationship between adolescents rather than exploitation.

“Subjecting the first applicant to a criminal trial for mutually consensual conduct that is a natural part of development has exposed him to psychological harm, stigma, potential conviction and long-term consequences, including placement on the sex offenders register and is in violation of Article 50 of our Constitution and Kenya’s obligations under the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of the Child,” court papers seen by The Nairobian read in part.

Second petitioner’s case

The second petitioner, AMO, was charged in 2023 with defilement involving a 17-year-old girl, with an alternative charge of indecent assault.

Court documents indicate that AMO and the complainant met through a mutual friend in 2022 and later connected on social media. Their communication developed into a romantic relationship.

The complainant, TA, now 19, told the court that their relationship was consensual and that they later cohabited after she became pregnant. She said she informed her mother and moved in with AMO.

“After several weeks of communication and growing mutual interest, we agreed to enter into a romantic relationship. Our bond deepened with time and we occasionally visited each other’s homes typical of consensual, non-coercive and non exploitative adolescent relationship,” she narrated.

She said although they love each other, she was not taught about structured relationship despite being in High School.

In May 2023, she left for a new school, but a month later, she discovered that she was pregnant. TA explained that she disclosed to her mother and decided to then move in with AMO.

She further alleged that her stepfather disapproved of the relationship and later lured AMO by posing as a passenger before handing him over to police at Ruaraka Police Station.

TA further stated that AMO was charged and detained at the Kamiti prison, youth section. She alleged that she was forced to testify against him by being threatened by the police that she would also be charged.

“Being made to testify against the father of my children was traumatic and made me feel complicit in an unjust process. I strongly believe that our situation is not isolated, and that many adolescents in Kenya find themselves in similar relationships and face punitive consequences because of the criminalisation of normal adolescent development and failure of the State to create safe, confidential and youth-friendly spaces,” she continued.

TA told the court that their relationship has since matured into a mutually agreed cohabitation and the birth of two children.

She said that the Director of Public Prosecution (DPP) ended up dropping the case in May 8, 2025. However, according to her, this did not cure the problem that her husband went through.

TA claimed that AMO ended up in the State’s black book, accused of being a sex pest despite their mutual agreement to commit adult acts.

Onyango and Mutiso said that the State has to-date failed to relax the law to factor in adolescents who explore their inner fire without coercion or taking advantage of one another.

“The arrest, charging and prosecution of the first and second applicants and other adolescents under the impugned sections of the Sexual Offences Act for engaging in consensual, non- exploitative, non-coercive sexual conduct constitute an unjustifiable limitation of and a violation of their rights to privacy, dignity, equality and non-discrimination and health,” their court papers continue to read.

HSO, AMO and TA sued the DPP and the Attoney General.

Background of petitioners

The court heard that HSO spent most of his adolescence in a rescue centre and later worked in casual labour in Mombasa after interruptions to his education.

HSO further narrated that he travelled to Nairobi to live with his maternal aunt in a quest to resume school.

He said he met the complainant On Christmas Day of 2024 at a shopping mall and later discovered she was his neighbour.

Their relationship developed, and he later moved with her to Dagoretti, where he secured manual work. The girl allegedly had also disclosed to him they she was going through a rough time with her parent.

“After a month or so of such work, I managed to save Sh2,000, which he used to rent a small single room in Satellite area, where we began living together. Though modest, the space gave us a sense of dignity and privacy, allowing us to begin cohabiting as a young couple with aspirations of building a future together,” he narrated.

According to the teen, he used part of his earnings to support his partner in starting a small fruit vending business while continuing casual work to provide for rent and basic needs.

“We supported each other emotionally and financially and began to envision a future in which we could grow our family and overcome the challenges of their circumstances together,” the court heard.

However, he stated that the police later arrested him and the girl at his mother’s home and detained him at Kasarani Police Station.

He claimed that the girl declined to leave when she was released. Meanwhile, he was charged and ordered to pay Sh50,000 as cash bail.

Network for Adolescent and Youth of Africa (NAYA) bailed him out after spending at the same police station.

He stated that throughout his adolescence, he did not receive any formal sexuality education or psychosocial support either at school or from any public institution that could have helped him understand healthy relationships or the risks and responsibilities involved in sexual behaviour.

The teen argued that had systems had been in place, such as free counselling, age-appropriate sexuality education, and youth-friendly sexual and reproductive health services, he might have approached the relationship differently or received the help he needed without fear of arrest or shame.

“In this environment of neglect, lack of access to age-appropriate comprehensive sexuality education and information, and absence of safe spaces for adolescents, my relationship with CNK developed naturally as we both sought connection, stability, and protection from the difficulties we were facing,” he argued.

In its supporting affidavit, NAYA said that at least 11.6 million Kenyans fall under the 10 to 19 years bracket.

Its director Victor Rasugu stated that despite the adolescents being a large group of the population, they face multiple barriers to accessing sexual and reproductive health services, including legal restrictions like mandatory parental consent, stigma, provider bias, distance to facilities, and lack of confidential services.

According to him, the law in Kenya has put it in mind that even for teens, consensual sex belongs to criminals.

“In our considered view, criminalisation of non-coercive and no-nexploitative sexual conduct under the Sexual Offences Act No.3 of 2006 creates the impression in the minds of adolescent minors that they are not entitled to access reproductive health information and services. The Sexual Offences Act, in our considered view, effectively tells adolescents that engaging in consensual sexual relations with another adolescent is not only bad but criminal,” said Rasugu.

The government clashed with human rights and children’s rights lobbies, and three three teens on whether the current blanket sex ban between underage individuals should be lifted or not.

State’s opposition

On one hand, the Katiba Institute and Centre for Reproductive Health told High Court Judge Bahati Mwamuye that Sections 8, 9, 11, and 43(4)(f) of the Sexual Offences Act are too vague and broad, such that they criminalise consensual sex and relationships between teens.

“While the State retains a legitimate and compelling mandate to prevent sexual abuse, exploitation, and violence against children, it may not pursue this objective through legislative provisions so broadly framed that they collapse the essential distinction between harm and consensual, non-coercive, and non-exploitative adolescent behavior or convert the very children the law seeks to protect into offenders,” argued Onyango, Mutiso and Malidzo Nyawa.

The Director of Public Prosecutions, Attorney General, Inspector General of Police and the Chief Magistrate’s Court opposed the petition.

They argued that the issue had already been settled in a separate case which had been filed by a 16-year-old boy who was caught having an affair with his agemate.

According to them, the government’s interest in protecting minors from premature sexual activity was found to be sound and of public interest.

State counsel Dan Weche argued that allowing the petition would amount to reopening settled legal issues, undermining final court decisions and public confidence in the justice system.

He warned that it could open the floodgates to repetitive litigation and weaken the authority of judicial rulings under Article 159 of the Constitution.

“To allow the present Petition to proceed would be to sanction a collateral attack on a final judgment of a court of competent jurisdiction. It would open the floodgates to endless litigation on the same legal questions, thereby undermining the authority of judicial decisions under Article 159 of the Constitution and eroding public confidence in the administration of justice,” Weche asserted.