JUDGMENT
INTRODUCTION
1. The Petition, dated 5 th August 2025, raises weighty constitutional questions concerning the validity and enforcement of Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act, No. 3 of 2006, as applied to consensual, non-coercive and non-exploitative sexual relationships between adolescents. The Petitioners, supported by the three Interested Parties, contend that the impugned statutory framework, both in its design and implementation, results in the unconstitutional criminalisation of natural adolescent intimacy, thereby violating a broad range of rights and freedoms guaranteed under the Constitution of Kenya, 2010; including the rights to dignity, equality and non-discrimination, privacy, liberty, fair trial, access to justice, health, and the best interests of the child.
2. The Petition is brought by the 1 st , 2 nd and 3 rd Petitioners, being adolescents directly affected by criminal proceedings instituted under the impugned provisions, together with the 4 th Petitioner, a child rights and youth advocacy organisation. The gravamen of the Petition is that the criminal justice system, as presently operationalised, fails to distinguish between exploitative sexual conduct involving coercion, abuse of power or predation, and consensual peer relationships between adolescents.
3. According to the Petitioners, the result is that children are exposed to arrest, detention, prosecution, stigma and long-term socio-economic and psychological harm in circumstances inconsistent with constitutional principles and international human rights standards.
4. Contemporaneously with the Petition, the Petitioners filed a Notice of Motion dated 5 th August 2025 seeking, inter alia , conservatory and supervisory orders intended to preserve the substratum of the Petition and prevent further alleged violations pending the hearing and determination thereof.
5. Following an inter partes hearing of the Notice of Motion dated 5 th August 2025 on 15 th August 2025, and with the consent of all parties, this Court issued a series of conservatory and case-management directions intended to preserve the substratum of the Petition pending its determination.
6. The Court, by consent, granted interim reliefs in terms of prayers (c) and (d) of the Application, called for the complete records and trial files in Makadara Criminal Case No. 34 of 2025 and Makadara Criminal Case No. MSCO E239 of 2023 , and issued an order staying all further proceedings in the said criminal matters pending the hearing and determination of this Petition. The Court further directed that the remaining prayers in the Application be subsumed into the substantive Petition.
7. The 1 st Respondent, the Attorney General, together with the 2 nd , 3 rd and 4 th Respondents, opposed the Petition on grounds, inter alia , that the impugned provisions are constitutionally valid child-protection measures; that the prosecutorial actions undertaken were lawful, reasonable, and made in good faith; and that no constitutional violations have been demonstrated.
8. The Respondents further raised objections founded upon jurisdiction and the doctrine of res judicata , contending that the issues raised herein had previously been litigated and determined.
9. The Interested Parties supported the Petition, albeit to varying degrees. Generally, they contended that the impugned statutory framework, in both design and effect, fails to sufficiently distinguish consensual adolescent peer relationships from exploitative sexual conduct, thereby producing disproportionate constitutional consequences inconsistent with the best interests of the child, dignity, privacy, and the right to health.
10. Against that background, the Court is called upon to determine not only the constitutionality of the impugned statutory provisions and their enforcement, but also the appropriate scope of reliefs, if any, under Articles 22, 23 and 165 of the Constitution, taking into account the conservatory orders already issued and the continuing effect of these proceedings upon the pending criminal cases; in the event that the Petition and the Application were to succeed.
THE PETITIONERS’ CASE
11. The Petitioners’ case is premised on the contention that Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act, No. 3 of 2006, as presently interpreted and enforced, operate in a manner that unconstitutionally criminalises consensual, non-coercive and non-exploitative sexual relationships between adolescents. According to the Petitioners, the impugned provisions fail to distinguish between exploitative or coercive sexual conduct and mutually consensual and natural peer relationships between adolescents. The consequence, they contend, is that adolescents are exposed to arrest, detention, prosecution, stigma, psychological trauma, educational disruption, and enduring socio-economic harm in circumstances that neither advance the protective purpose of the law nor accord with constitutional norms.
12. The Petitioners further contend that the impugned statutory framework disregards adolescents’ evolving capacities, autonomy, and developmental realities, thereby infringing Articles 22, 24, 27, 28, 29, 31, 33, 35, 43, 46, 48, 49, 50 and 53 of the Constitution. They additionally invoke Kenya’s obligations under international and regional human rights instruments, including the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (The Maputo Protocol).
13. The Petition is brought by the 1 st Petitioner, HSO, the 2 nd Petitioner, AMO, the 3 rd Petitioner, TA, and the 4 th Petitioner, the Network for Adolescent and Youth of Africa (NAYA). Collectively, they challenge what they describe as the blanket criminalisation of adolescent sexuality through the enforcement of Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act. They contend that the State has adopted a punitive criminal justice approach to adolescent sexuality while simultaneously failing to provide accessible, confidential and adolescent-responsive sexual and reproductive health information, counselling and healthcare services. According to the Petitioners, this dual failure exposes adolescents to criminal sanctions in circumstances characterised by vulnerability, limited awareness and developmental transition.
14. The factual basis of the Petition is illustrated through the experiences of the 1 st , 2 nd and 3 rd Petitioners. The 1 st Petitioner, HSO, is described as a seventeen-year-old adolescent male who experienced periods of homelessness, institutional care and economic vulnerability. It is pleaded that after residing at Umoja Boys Rescue Centre in Kwale County while attending Kwale High School, he later relocated to Nairobi where he met CNK, a sixteen-year-old adolescent girl. The Petition avers that the two entered into a mutually consensual romantic relationship founded upon companionship and emotional support, and that CNK had disclosed experiences of domestic abuse.
15. The Petitioners state that the relationship eventually evolved into cohabitation under difficult socio-economic circumstances, sustained through informal income-generating activities and shared domestic responsibilities. It is further pleaded that in February 2025, the 1 st Petitioner and CNK were arrested without warrant in Dagoretti and detained at Kasarani Police Station. Thereafter, the 1 st Petitioner was charged in Makadara Criminal Case No. 34 of 2025 with the offence of defilement contrary to Section 8(1) as read together with Section 8(3) of the Sexual Offences Act, together with an alternative charge under Section 11(1) thereof.
16. The Petitioners contend that notwithstanding the consensual and non-exploitative nature of the relationship, the criminal justice system subjected the 1 st Petitioner to arrest, detention, prosecution, stigma, fear, anxiety and emotional suffering. It is further pleaded that bail was initially fixed at KShs 50,000, which the 1 st Petitioner was unable to raise, resulting in continued detention until intervention by the 4 th Petitioner facilitated his release.
17. The 2 nd Petitioner, AMO, is similarly pleaded to have entered into a consensual romantic relationship with the 3 rd Petitioner, TA, in 2022 while the latter was a seventeen-year-old secondary school student. The Petition avers that the relationship developed gradually through social media communication into a sustained emotional and romantic relationship characterised by mutual affection and voluntary engagement.
18. It is further pleaded that upon discovery of pregnancy in June 2023, the 3 rd Petitioner disclosed the same to her mother and subsequently moved in with the 2 nd Petitioner, culminating in the establishment of a cohabiting family unit. The Petitioners state that following a family dispute, the 2 nd Petitioner was lured to Ruaraka Police Station and arrested, after which he was charged in Makadara Criminal Case No. MSCO/E239 of 2023 with the offence of defilement contrary to Section 8(1) as read together with Section 8(4) of the Sexual Offences Act and an alternative charge under Section 11(1).
19. Although the prosecution was subsequently withdrawn pursuant to Section 87(a) of the Criminal Procedure Code and Section 40 of the Sexual Offences Act upon confirmation that both parties had been minors engaged in a consensual, non-coercive and non-exploitative relationship, the Petitioners maintain that the withdrawal neither cures the alleged constitutional infirmities in the impugned statutory provisions nor remedies the prejudice and harm allegedly occasioned by their enforcement.
20. The 3 rd Petitioner, TA, avers that although she was never formally charged, she was nonetheless treated as a prosecution witness, subjected to police interrogation without legal representation, exposed to stigma from school authorities and peers, and compelled to participate in criminal proceedings against her partner. She contends that these events caused psychological distress, emotional trauma, disruption of her education and interference with her developmental well-being. She further avers that she lacked access to adolescent-friendly sexual and reproductive healthcare, counselling and information, and that structural barriers, including stigma, cost and parental consent requirements, impeded access to essential healthcare services.
21. Collectively, the Petitioners contend that the impugned statutory framework fails to distinguish consensual adolescent intimacy from exploitative sexual conduct, thereby resulting in disproportionate and unconstitutional criminalisation. They assert that the enforcement of Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act violates adolescents’ rights to dignity, equality and non-discrimination, privacy, liberty and security of the person, access to information, health, fair trial, access to justice and the best interests of the child.
22. It is further contended that the blanket presumption under Section 43(4)(f), which treats adolescents as incapable of consenting to sexual conduct irrespective of context, maturity or evolving capacity, is inconsistent with constitutional and international human rights standards recognising adolescents as independent rights holders entitled to dignity, autonomy and developmental protection.
23. The Petitioners further submit that the criminalisation of consensual adolescent sexuality undermines public health objectives by deterring adolescents from seeking reproductive health information, counselling and healthcare services. According to the Petitioners, healthcare providers routinely deny adolescents access to reproductive health services for fear of facilitating conduct criminalised under the Sexual Offences Act, thereby driving adolescent sexuality underground and increasing vulnerability to unintended pregnancies, HIV infection, stigma and social exclusion. They maintain that the State has failed in its obligations under Articles 21 and 43 of the Constitution to provide accessible, confidential and youth-responsive healthcare and counselling services.
24. The Petition is anchored upon the Constitution of Kenya, 2010, particularly Articles 2, 3, 10, 19, 20, 21, 22, 23, 24, 27, 28, 29, 31, 33, 35, 43, 46, 48, 49, 50 and 53, which, according to the Petitioners, impose obligations upon the State to respect, protect and fulfil fundamental rights and freedoms in a manner consistent with human dignity, equality, inclusiveness, social justice and protection of the marginalised. The Petitioners further rely on the Health Act, the HIV Prevention and Control Act, the Children’s Act and the Criminal Procedure Code, together with international and regional human rights instruments incorporated into Kenyan law by virtue of Articles 2(5) and 2(6) of the Constitution.
25. In support of the proposition that adolescents are independent constitutional persons entitled to the full protection of the Bill of Rights, the Petitioners rely on Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC); 2014 (2) SA 168 (CC); 2014 (1) SACR 327 (CC) (3 October 2013), where the Constitutional Court of South Africa held that the criminalisation of consensual sexual conduct between adolescents violated constitutional rights and suspended investigations, arrests and prosecutions under the impugned provisions pending legislative reform. Reliance is further placed on S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) , where Sachs J observed that children are independent constitutional persons entitled to dignity, autonomy and self-expression.
26. On the issue of dignity under Article 28 of the Constitution, the Petitioners contend that the impugned provisions stigmatise and degrade adolescents by labelling them criminal offenders for engaging in developmentally normal, consensual and non-exploitative relationships. In that regard, reliance is placed on Dawood and Another v Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8, where the Constitutional Court of South Africa held that dignity is both a foundational constitutional value and an enforceable right informing the interpretation of all other rights, S v Makwanyane and Another (CCT3/94) [1995] ZACC 3, where life and dignity were recognised as foundational constitutional values, Barkhuizen v Napier (CCT72/05) [2007] ZACC 5 , which recognised self-autonomy as intrinsic to dignity and Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14, where the Court affirmed that dignity encompasses the right to make personal decisions affecting one’s life. Reliance is also placed on Francis Karioko Muruatetu & Another v Republic and MWK & Another v Attorney General & 4 Others [2017] KEHC 1496 (KLR) for the proposition that dignity lies at the heart of the Constitution and requires every person to be treated with worth and respect.
27. With respect to privacy under Article 31 of the Constitution, the Petitioners contend that consensual adolescent intimacy falls within the constitutionally protected sphere of decisional autonomy and private life. Reliance is placed on National Coalition for Gay and Lesbian Equality v Minister of Justice and Others [1998] ZACC 15 1999 (1) SA 6 (CC), where the Constitutional Court held that privacy protects intimate personal relationships from unjustified state intrusion, and Botha v Smuts and Another [2024] ZACC 22 , where privacy was recognised as encompassing autonomous decision-making in intimate personal matters. The Petitioners further rely on Justice K.S. Puttaswamy (Retd.) v Union of India for the proposition that decisional autonomy in matters of intimacy and sexuality lies at the core of constitutional privacy protections.
28. The Petitioners further contend that the impugned statutory framework violates the constitutional principle that the best interests of the child are of paramount importance in every matter concerning the child under Article 53(2) of the Constitution. They argue that arrest, detention, interrogation and prosecution subject adolescents to avoidable trauma, educational disruption, stigma and psychosocial harm while failing to provide rehabilitative or protective interventions. Reliance is placed on P.O.O. (A minor) v Director of Public Prosecutions & the SRM, Mbita Law Courts (2017), where the High Court observed that children involved in such relationships require guidance and counselling rather than criminal sanctions, and on Eliud Waweru Wambui v Republic, Cr. App. No. 102 of 2016, where the Court of Appeal lamented the increasing incarceration of young persons arising from consensual adolescent relationships and called for urgent national interrogation of the issue.
29. The Petitioners additionally submit that the present proceedings are not barred by the doctrine of res judicata notwithstanding the decision in CKW v Attorney General & Another (2014) . In that regard, they rely on John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR), where the Supreme Court recognised that constitutional litigation may warrant a flexible application of the doctrine where substantial injustice would otherwise arise, and Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014] KESC 6 (KLR), for the proposition that public interest constitutional litigation should not be defeated by procedural technicalities. The Petitioners further contend that the present proceedings raise distinct issues concerning adolescents’ evolving capacities, structural constitutional remedies, police conduct, arrest and detention, and the legality of the blanket presumption under Section 43(4)(f), matters which, according to them, were not conclusively addressed in the earlier proceedings.
30. The Applicants submit that this Court is properly seized of jurisdiction under Articles 22, 23, 165(3)(b), 165(6) and 165(7) of the Constitution to determine violations and threatened violations of constitutional rights and to grant appropriate conservatory and supervisory reliefs. Reliance is placed on Board of Governors, Moi High School Kabarak & Another v Malcolm Bell, SC Application Nos. 12 & 13 of 2013 , where the Supreme Court affirmed that courts possess inherent authority to issue ancillary orders necessary to safeguard the subject matter of proceedings before them.
31. The Applicants further submit that they have satisfied the principles governing the grant of conservatory and stay orders as enunciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR , namely that the matter raises an arguable case, that the Petition would be rendered nugatory absent interim relief, and that the public interest favours the grant of the orders sought. On the existence of an arguable case, reliance is placed on Anami Silverse Lisamula v The Independent Electoral and Boundaries Commission & 2 Others, Petition No. 9 of 2014 [2014] eKLR , where the Supreme Court held that constitutional issues raising serious and meritorious questions cannot be wished away without the benefit of a substantive hearing.
32. On the nugatory aspect, the Applicants submit that unless the criminal proceedings against the 1 st Applicant are stayed, the Petition will be rendered academic and the constitutional injury irreversible. Reliance is placed on Republic v Kenya Anti-Corruption Commission & 2 others [2009] eKLR, where the Court of Appeal held that stay orders may issue where continuation of criminal proceedings would occasion irreparable prejudice and render subsequent proceedings nugatory. The Applicants further rely on Praxidis Namoni Saisi v Director of Public Prosecutions & 2 others [2020] eKLR, where the Supreme Court, adopting its reasoning in Dr. Peter Ajodo Omanda & 6 Others v Ethics and Anti-Corruption Commission & 2 Others , held that stay orders are appropriate where arguable constitutional issues would otherwise be rendered nugatory by ongoing criminal proceedings.
33. Lastly, the Applicants contend that the public interest overwhelmingly favours the grant of conservatory reliefs. They argue that the impugned provisions continue to occasion systemic constitutional violations against adolescents across Kenya and that, absent interim intervention, adolescents engaged in consensual, non-coercive and non-exploitative relationships will continue to face arrest, detention and prosecution. They maintain that the reliefs sought are narrowly tailored and do not interfere with the prosecution of cases involving coercion, exploitation, abuse or violence, but merely seek to suspend prosecutions arising from consensual peer relationships pending constitutional determination of the issues raised.
34. Consequently, the Petitioners seek, the following reliefs:
A. A declaration that the arrest, prosecution, and detention of the 1st Petitioner under Sections 8, (1) as read together with Section 8(3), and 11 (1) of the Sexual Offences Act No 3 of 2006 and 2nd Petitioner under Sections 8, (1) as read together with Section 8(4), and 11 (1) of the Sexual Offences Act No 3 of 2006 for engaging in consensual, non-coercive, non-exploitative sexual relations violates Articles 25, 27, 28, 29,31, 33,35, 43,46, 48, 49 50, and 53 of the Constitution.
B. An order of certiorari calling into court and quashing the charge sheets in Makadara Law Courts Criminal Case No. 34 of 2025 against the 1 st Petitioner and Criminal Case No. MSCO/E239 of 2023 against the 2 nd Petitioner.
C. A declaration that the blanket criminalization of mutually consensual, non-coercive and non-exploitative sexual relations between adolescents under Sections 8, 9,11 of the Sexual Offences Act and the blanket presumption of adolescents' lack of capacity to consent to sexual relations through application of section 43 (4) (f) of the Sexual Offences Act No 3 of 2006 without recognizing adolescents' evolving capacities are unconstitutional and their continued application violate the rights of adolescents as provided under Articles 25, 27, 28, 29,31, 43(l)(a), 46, 48, 49, 50, and 53(l)(d) & (2) of the Constitution.
D. An order of mandamus compelling the 1 st and 3 rd Respondents, to within 90 days of the judgment, issue circulars to all prosecutors and police officers directing them on the illegality of arresting, prosecuting and harassing adolescents engaging in mutually consensual, non-coercive, non-exploitative sexual relations.
E. An order of mandamus compelling the 2 nd Respondent, to within 90 days of judgment, submit to the National Assembly a Bill to amend Sections 8, 9, and 11 of the Sexual Offences Act to decriminalize consensual, non-coercive, non-exploitative sexual relations between adolescents and to submit periodic progress reports to this Honorable Court every sixty (60) days.
F. An order for general and aggravated damages to the 1 st , 2 nd , and 3 rd Petitioners for the violations suffered as a result of the arrest, detention, and prosecution for engaging in consensual, non-coercive, and non-exploitative sexual relations.
G. Any other relief that this Honourable Court deems just and appropriate in the circumstances.
THE 1 ST RESPONDENT’S CASE
35. The 1 st Respondent opposes both the Petition and the Notice of Motion dated 5 th August 2025. Its position is that the proceedings seek to undermine the constitutional and statutory obligation of the State to protect children from sexual exploitation and abuse through the framework established under the Sexual Offences Act, No. 3 of 2006. The 1 st Respondent contends that Sections 8, 9, 11 and 43(4)(f) of the Act constitute lawful and constitutionally compliant child-protection measures intended to safeguard children from premature sexual activity, exploitation, and the attendant physical, psychological and social consequences.
36. The 1 st Respondent’s case is principally advanced through the affidavits sworn by Alex Gituma, PC Elizabeth Wangwa and PC Peter Githaka. It is contended that the criminal proceedings against the Petitioners arose from lawful investigations initiated upon receipt of complaints involving minors.
37. With regard to the 1 st Petitioner, the 1 st Respondent avers that investigations commenced following a missing person report concerning CNK, who was then alleged to be a fifteen-year-old minor. According to the 1 st Respondent, CNK was subsequently traced while cohabiting with the 1 st Petitioner. It is contended that the 1 st Petitioner identified himself to investigators as a boda boda operator and did not disclose that he too was a minor, thereby leading investigators to reasonably believe that he was an adult male engaged in a sexual relationship with a child.
38. The 1 st Respondent further states that it was only after plea taking that counsel for the defence raised the issue of the 1 st Petitioner’s age, prompting the trial court to order an age assessment. The said assessment subsequently confirmed that the 1 st Petitioner was below the age of eighteen years. Thereafter, the prosecution reviewed the matter pursuant to the Office of the Director of Public Prosecutions Decision to Charge Guidelines and withdrew the proceedings under Section 87(a) of the Criminal Procedure Code upon confirmation that both parties were minors.
39. Similarly, in relation to the 2 nd Petitioner, the 1 st Respondent avers that the evidence initially presented to the prosecution indicated that he was an adult engaged in boda boda operations. It is pleaded that subsequent age verification established that he too was a minor at the material time, following which the charges were withdrawn in accordance with prosecutorial policy and the best interests of the child. The 1 st Respondent therefore maintains that all prosecutorial decisions were undertaken lawfully, independently and in good faith on the basis of the evidence available at the material time.
40. On the constitutionality of the impugned provisions, the 1 st Respondent submits that Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act serve a legitimate constitutional purpose, namely the protection of children from exploitation, manipulation and the harmful consequences associated with premature sexual conduct. It is contended that the law recognises that children lack the emotional, psychological and cognitive maturity necessary to appreciate the consequences of sexual activity and therefore cannot lawfully consent to sexual intercourse.
41. In support of that position, reliance is placed on CKW v Attorney General & another [2014] KEHC 3657 (KLR), P.K.S v Republic [2013] KEHC 2759 (KLR), Solomon v Republic [2024] KEHC 974 (KLR), Ezekiel Cheruiyot Koros v Republic [2010] eKLR and Bonu v R [2010] eKLR for the proposition that the Sexual Offences Act lawfully criminalises sexual conduct involving minors in furtherance of the State’s protective obligations and that minors lack the legal capacity to consent to sexual relations.
42. The 1 st Respondent further contends that the prosecution of the Petitioners did not violate their constitutional rights. It is submitted that the Office of the Director of Public Prosecutions is an independent constitutional office established under Article 157 of the Constitution and mandated to institute, undertake and discontinue criminal proceedings independently. Reliance is placed on Yunus Abdul Rubi & 2 others v Director of Public Prosecution & 2 others [2016] KEHC 4146 (KLR).
43. According to the 1 st Respondent, the prosecutorial decisions complained of were informed by the evidence presented by investigating officers and were made in the lawful exercise of constitutional discretion. It is contended that once it became apparent that the Petitioners were minors, the proceedings were withdrawn in accordance with the law and applicable prosecutorial policy. The 1 st Respondent therefore denies any arbitrariness, malice, discrimination or abuse of power.
44. The 1 st Respondent further avers that prosecutorial policy concerning children in conflict with the law requires the opening of protection and care files to facilitate counselling, welfare support and continuity of education for affected minors. It is therefore contended that the criminal justice process incorporated child-sensitive safeguards consistent with Article 53(2) of the Constitution.
45. In response to the allegation that the State failed to provide adolescents with adequate sexual and reproductive health information and services, the 1 st Respondent submits that various reproductive health and adolescent-support programmes have been implemented through the Ministry of Health, the Ministry of Education and the Kenya Institute of Curriculum Development. Reference is made to reproductive health education in schools, menstrual hygiene management programmes and the National Guidelines for the Provision of Adolescent and Youth-Friendly Services. The 1 st Respondent therefore disputes the allegation that the State failed in its constitutional obligations relating to adolescent reproductive health information and services.
46. Regarding the reliefs sought in the Petition, the 1 st Respondent contends that the prayer for certiorari quashing the impugned criminal proce
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INTRODUCTION
1. The Petition, dated 5 th August 2025, raises weighty constitutional questions concerning the validity and enforcement of Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act, No. 3 of 2006, as applied to consensual, non-coercive and non-exploitative sexual relationships between adolescents. The Petitioners, supported by the three Interested Parties, contend that the impugned statutory framework, both in its design and implementation, results in the unconstitutional criminalisation of natural adolescent intimacy, thereby violating a broad range of rights and freedoms guaranteed under the Constitution of Kenya, 2010; including the rights to dignity, equality and non-discrimination, privacy, liberty, fair trial, access to justice, health, and the best interests of the child.
2. The Petition is brought by the 1 st , 2 nd and 3 rd Petitioners, being adolescents directly affected by criminal proceedings instituted under the impugned provisions, together with the 4 th Petitioner, a child rights and youth advocacy organisation. The gravamen of the Petition is that the criminal justice system, as presently operationalised, fails to distinguish between exploitative sexual conduct involving coercion, abuse of power or predation, and consensual peer relationships between adolescents.
3. According to the Petitioners, the result is that children are exposed to arrest, detention, prosecution, stigma and long-term socio-economic and psychological harm in circumstances inconsistent with constitutional principles and international human rights standards.
4. Contemporaneously with the Petition, the Petitioners filed a Notice of Motion dated 5 th August 2025 seeking, inter alia , conservatory and supervisory orders intended to preserve the substratum of the Petition and prevent further alleged violations pending the hearing and determination thereof.
5. Following an inter partes hearing of the Notice of Motion dated 5 th August 2025 on 15 th August 2025, and with the consent of all parties, this Court issued a series of conservatory and case-management directions intended to preserve the substratum of the Petition pending its determination.
6. The Court, by consent, granted interim reliefs in terms of prayers (c) and (d) of the Application, called for the complete records and trial files in Makadara Criminal Case No. 34 of 2025 and Makadara Criminal Case No. MSCO E239 of 2023 , and issued an order staying all further proceedings in the said criminal matters pending the hearing and determination of this Petition. The Court further directed that the remaining prayers in the Application be subsumed into the substantive Petition.
7. The 1 st Respondent, the Attorney General, together with the 2 nd , 3 rd and 4 th Respondents, opposed the Petition on grounds, inter alia , that the impugned provisions are constitutionally valid child-protection measures; that the prosecutorial actions undertaken were lawful, reasonable, and made in good faith; and that no constitutional violations have been demonstrated.
8. The Respondents further raised objections founded upon jurisdiction and the doctrine of res judicata , contending that the issues raised herein had previously been litigated and determined.
9. The Interested Parties supported the Petition, albeit to varying degrees. Generally, they contended that the impugned statutory framework, in both design and effect, fails to sufficiently distinguish consensual adolescent peer relationships from exploitative sexual conduct, thereby producing disproportionate constitutional consequences inconsistent with the best interests of the child, dignity, privacy, and the right to health.
10. Against that background, the Court is called upon to determine not only the constitutionality of the impugned statutory provisions and their enforcement, but also the appropriate scope of reliefs, if any, under Articles 22, 23 and 165 of the Constitution, taking into account the conservatory orders already issued and the continuing effect of these proceedings upon the pending criminal cases; in the event that the Petition and the Application were to succeed.
THE PETITIONERS’ CASE
11. The Petitioners’ case is premised on the contention that Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act, No. 3 of 2006, as presently interpreted and enforced, operate in a manner that unconstitutionally criminalises consensual, non-coercive and non-exploitative sexual relationships between adolescents. According to the Petitioners, the impugned provisions fail to distinguish between exploitative or coercive sexual conduct and mutually consensual and natural peer relationships between adolescents. The consequence, they contend, is that adolescents are exposed to arrest, detention, prosecution, stigma, psychological trauma, educational disruption, and enduring socio-economic harm in circumstances that neither advance the protective purpose of the law nor accord with constitutional norms.
12. The Petitioners further contend that the impugned statutory framework disregards adolescents’ evolving capacities, autonomy, and developmental realities, thereby infringing Articles 22, 24, 27, 28, 29, 31, 33, 35, 43, 46, 48, 49, 50 and 53 of the Constitution. They additionally invoke Kenya’s obligations under international and regional human rights instruments, including the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (The Maputo Protocol).
13. The Petition is brought by the 1 st Petitioner, HSO, the 2 nd Petitioner, AMO, the 3 rd Petitioner, TA, and the 4 th Petitioner, the Network for Adolescent and Youth of Africa (NAYA). Collectively, they challenge what they describe as the blanket criminalisation of adolescent sexuality through the enforcement of Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act. They contend that the State has adopted a punitive criminal justice approach to adolescent sexuality while simultaneously failing to provide accessible, confidential and adolescent-responsive sexual and reproductive health information, counselling and healthcare services. According to the Petitioners, this dual failure exposes adolescents to criminal sanctions in circumstances characterised by vulnerability, limited awareness and developmental transition.
14. The factual basis of the Petition is illustrated through the experiences of the 1 st , 2 nd and 3 rd Petitioners. The 1 st Petitioner, HSO, is described as a seventeen-year-old adolescent male who experienced periods of homelessness, institutional care and economic vulnerability. It is pleaded that after residing at Umoja Boys Rescue Centre in Kwale County while attending Kwale High School, he later relocated to Nairobi where he met CNK, a sixteen-year-old adolescent girl. The Petition avers that the two entered into a mutually consensual romantic relationship founded upon companionship and emotional support, and that CNK had disclosed experiences of domestic abuse.
15. The Petitioners state that the relationship eventually evolved into cohabitation under difficult socio-economic circumstances, sustained through informal income-generating activities and shared domestic responsibilities. It is further pleaded that in February 2025, the 1 st Petitioner and CNK were arrested without warrant in Dagoretti and detained at Kasarani Police Station. Thereafter, the 1 st Petitioner was charged in Makadara Criminal Case No. 34 of 2025 with the offence of defilement contrary to Section 8(1) as read together with Section 8(3) of the Sexual Offences Act, together with an alternative charge under Section 11(1) thereof.
16. The Petitioners contend that notwithstanding the consensual and non-exploitative nature of the relationship, the criminal justice system subjected the 1 st Petitioner to arrest, detention, prosecution, stigma, fear, anxiety and emotional suffering. It is further pleaded that bail was initially fixed at KShs 50,000, which the 1 st Petitioner was unable to raise, resulting in continued detention until intervention by the 4 th Petitioner facilitated his release.
17. The 2 nd Petitioner, AMO, is similarly pleaded to have entered into a consensual romantic relationship with the 3 rd Petitioner, TA, in 2022 while the latter was a seventeen-year-old secondary school student. The Petition avers that the relationship developed gradually through social media communication into a sustained emotional and romantic relationship characterised by mutual affection and voluntary engagement.
18. It is further pleaded that upon discovery of pregnancy in June 2023, the 3 rd Petitioner disclosed the same to her mother and subsequently moved in with the 2 nd Petitioner, culminating in the establishment of a cohabiting family unit. The Petitioners state that following a family dispute, the 2 nd Petitioner was lured to Ruaraka Police Station and arrested, after which he was charged in Makadara Criminal Case No. MSCO/E239 of 2023 with the offence of defilement contrary to Section 8(1) as read together with Section 8(4) of the Sexual Offences Act and an alternative charge under Section 11(1).
19. Although the prosecution was subsequently withdrawn pursuant to Section 87(a) of the Criminal Procedure Code and Section 40 of the Sexual Offences Act upon confirmation that both parties had been minors engaged in a consensual, non-coercive and non-exploitative relationship, the Petitioners maintain that the withdrawal neither cures the alleged constitutional infirmities in the impugned statutory provisions nor remedies the prejudice and harm allegedly occasioned by their enforcement.
20. The 3 rd Petitioner, TA, avers that although she was never formally charged, she was nonetheless treated as a prosecution witness, subjected to police interrogation without legal representation, exposed to stigma from school authorities and peers, and compelled to participate in criminal proceedings against her partner. She contends that these events caused psychological distress, emotional trauma, disruption of her education and interference with her developmental well-being. She further avers that she lacked access to adolescent-friendly sexual and reproductive healthcare, counselling and information, and that structural barriers, including stigma, cost and parental consent requirements, impeded access to essential healthcare services.
21. Collectively, the Petitioners contend that the impugned statutory framework fails to distinguish consensual adolescent intimacy from exploitative sexual conduct, thereby resulting in disproportionate and unconstitutional criminalisation. They assert that the enforcement of Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act violates adolescents’ rights to dignity, equality and non-discrimination, privacy, liberty and security of the person, access to information, health, fair trial, access to justice and the best interests of the child.
22. It is further contended that the blanket presumption under Section 43(4)(f), which treats adolescents as incapable of consenting to sexual conduct irrespective of context, maturity or evolving capacity, is inconsistent with constitutional and international human rights standards recognising adolescents as independent rights holders entitled to dignity, autonomy and developmental protection.
23. The Petitioners further submit that the criminalisation of consensual adolescent sexuality undermines public health objectives by deterring adolescents from seeking reproductive health information, counselling and healthcare services. According to the Petitioners, healthcare providers routinely deny adolescents access to reproductive health services for fear of facilitating conduct criminalised under the Sexual Offences Act, thereby driving adolescent sexuality underground and increasing vulnerability to unintended pregnancies, HIV infection, stigma and social exclusion. They maintain that the State has failed in its obligations under Articles 21 and 43 of the Constitution to provide accessible, confidential and youth-responsive healthcare and counselling services.
24. The Petition is anchored upon the Constitution of Kenya, 2010, particularly Articles 2, 3, 10, 19, 20, 21, 22, 23, 24, 27, 28, 29, 31, 33, 35, 43, 46, 48, 49, 50 and 53, which, according to the Petitioners, impose obligations upon the State to respect, protect and fulfil fundamental rights and freedoms in a manner consistent with human dignity, equality, inclusiveness, social justice and protection of the marginalised. The Petitioners further rely on the Health Act, the HIV Prevention and Control Act, the Children’s Act and the Criminal Procedure Code, together with international and regional human rights instruments incorporated into Kenyan law by virtue of Articles 2(5) and 2(6) of the Constitution.
25. In support of the proposition that adolescents are independent constitutional persons entitled to the full protection of the Bill of Rights, the Petitioners rely on Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13) [2013] ZACC 35; 2013 (12) BCLR 1429 (CC); 2014 (2) SA 168 (CC); 2014 (1) SACR 327 (CC) (3 October 2013), where the Constitutional Court of South Africa held that the criminalisation of consensual sexual conduct between adolescents violated constitutional rights and suspended investigations, arrests and prosecutions under the impugned provisions pending legislative reform. Reliance is further placed on S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) , where Sachs J observed that children are independent constitutional persons entitled to dignity, autonomy and self-expression.
26. On the issue of dignity under Article 28 of the Constitution, the Petitioners contend that the impugned provisions stigmatise and degrade adolescents by labelling them criminal offenders for engaging in developmentally normal, consensual and non-exploitative relationships. In that regard, reliance is placed on Dawood and Another v Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8, where the Constitutional Court of South Africa held that dignity is both a foundational constitutional value and an enforceable right informing the interpretation of all other rights, S v Makwanyane and Another (CCT3/94) [1995] ZACC 3, where life and dignity were recognised as foundational constitutional values, Barkhuizen v Napier (CCT72/05) [2007] ZACC 5 , which recognised self-autonomy as intrinsic to dignity and Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14, where the Court affirmed that dignity encompasses the right to make personal decisions affecting one’s life. Reliance is also placed on Francis Karioko Muruatetu & Another v Republic and MWK & Another v Attorney General & 4 Others [2017] KEHC 1496 (KLR) for the proposition that dignity lies at the heart of the Constitution and requires every person to be treated with worth and respect.
27. With respect to privacy under Article 31 of the Constitution, the Petitioners contend that consensual adolescent intimacy falls within the constitutionally protected sphere of decisional autonomy and private life. Reliance is placed on National Coalition for Gay and Lesbian Equality v Minister of Justice and Others [1998] ZACC 15 1999 (1) SA 6 (CC), where the Constitutional Court held that privacy protects intimate personal relationships from unjustified state intrusion, and Botha v Smuts and Another [2024] ZACC 22 , where privacy was recognised as encompassing autonomous decision-making in intimate personal matters. The Petitioners further rely on Justice K.S. Puttaswamy (Retd.) v Union of India for the proposition that decisional autonomy in matters of intimacy and sexuality lies at the core of constitutional privacy protections.
28. The Petitioners further contend that the impugned statutory framework violates the constitutional principle that the best interests of the child are of paramount importance in every matter concerning the child under Article 53(2) of the Constitution. They argue that arrest, detention, interrogation and prosecution subject adolescents to avoidable trauma, educational disruption, stigma and psychosocial harm while failing to provide rehabilitative or protective interventions. Reliance is placed on P.O.O. (A minor) v Director of Public Prosecutions & the SRM, Mbita Law Courts (2017), where the High Court observed that children involved in such relationships require guidance and counselling rather than criminal sanctions, and on Eliud Waweru Wambui v Republic, Cr. App. No. 102 of 2016, where the Court of Appeal lamented the increasing incarceration of young persons arising from consensual adolescent relationships and called for urgent national interrogation of the issue.
29. The Petitioners additionally submit that the present proceedings are not barred by the doctrine of res judicata notwithstanding the decision in CKW v Attorney General & Another (2014) . In that regard, they rely on John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR), where the Supreme Court recognised that constitutional litigation may warrant a flexible application of the doctrine where substantial injustice would otherwise arise, and Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014] KESC 6 (KLR), for the proposition that public interest constitutional litigation should not be defeated by procedural technicalities. The Petitioners further contend that the present proceedings raise distinct issues concerning adolescents’ evolving capacities, structural constitutional remedies, police conduct, arrest and detention, and the legality of the blanket presumption under Section 43(4)(f), matters which, according to them, were not conclusively addressed in the earlier proceedings.
30. The Applicants submit that this Court is properly seized of jurisdiction under Articles 22, 23, 165(3)(b), 165(6) and 165(7) of the Constitution to determine violations and threatened violations of constitutional rights and to grant appropriate conservatory and supervisory reliefs. Reliance is placed on Board of Governors, Moi High School Kabarak & Another v Malcolm Bell, SC Application Nos. 12 & 13 of 2013 , where the Supreme Court affirmed that courts possess inherent authority to issue ancillary orders necessary to safeguard the subject matter of proceedings before them.
31. The Applicants further submit that they have satisfied the principles governing the grant of conservatory and stay orders as enunciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR , namely that the matter raises an arguable case, that the Petition would be rendered nugatory absent interim relief, and that the public interest favours the grant of the orders sought. On the existence of an arguable case, reliance is placed on Anami Silverse Lisamula v The Independent Electoral and Boundaries Commission & 2 Others, Petition No. 9 of 2014 [2014] eKLR , where the Supreme Court held that constitutional issues raising serious and meritorious questions cannot be wished away without the benefit of a substantive hearing.
32. On the nugatory aspect, the Applicants submit that unless the criminal proceedings against the 1 st Applicant are stayed, the Petition will be rendered academic and the constitutional injury irreversible. Reliance is placed on Republic v Kenya Anti-Corruption Commission & 2 others [2009] eKLR, where the Court of Appeal held that stay orders may issue where continuation of criminal proceedings would occasion irreparable prejudice and render subsequent proceedings nugatory. The Applicants further rely on Praxidis Namoni Saisi v Director of Public Prosecutions & 2 others [2020] eKLR, where the Supreme Court, adopting its reasoning in Dr. Peter Ajodo Omanda & 6 Others v Ethics and Anti-Corruption Commission & 2 Others , held that stay orders are appropriate where arguable constitutional issues would otherwise be rendered nugatory by ongoing criminal proceedings.
33. Lastly, the Applicants contend that the public interest overwhelmingly favours the grant of conservatory reliefs. They argue that the impugned provisions continue to occasion systemic constitutional violations against adolescents across Kenya and that, absent interim intervention, adolescents engaged in consensual, non-coercive and non-exploitative relationships will continue to face arrest, detention and prosecution. They maintain that the reliefs sought are narrowly tailored and do not interfere with the prosecution of cases involving coercion, exploitation, abuse or violence, but merely seek to suspend prosecutions arising from consensual peer relationships pending constitutional determination of the issues raised.
34. Consequently, the Petitioners seek, the following reliefs:
A. A declaration that the arrest, prosecution, and detention of the 1st Petitioner under Sections 8, (1) as read together with Section 8(3), and 11 (1) of the Sexual Offences Act No 3 of 2006 and 2nd Petitioner under Sections 8, (1) as read together with Section 8(4), and 11 (1) of the Sexual Offences Act No 3 of 2006 for engaging in consensual, non-coercive, non-exploitative sexual relations violates Articles 25, 27, 28, 29,31, 33,35, 43,46, 48, 49 50, and 53 of the Constitution.
B. An order of certiorari calling into court and quashing the charge sheets in Makadara Law Courts Criminal Case No. 34 of 2025 against the 1 st Petitioner and Criminal Case No. MSCO/E239 of 2023 against the 2 nd Petitioner.
C. A declaration that the blanket criminalization of mutually consensual, non-coercive and non-exploitative sexual relations between adolescents under Sections 8, 9,11 of the Sexual Offences Act and the blanket presumption of adolescents' lack of capacity to consent to sexual relations through application of section 43 (4) (f) of the Sexual Offences Act No 3 of 2006 without recognizing adolescents' evolving capacities are unconstitutional and their continued application violate the rights of adolescents as provided under Articles 25, 27, 28, 29,31, 43(l)(a), 46, 48, 49, 50, and 53(l)(d) & (2) of the Constitution.
D. An order of mandamus compelling the 1 st and 3 rd Respondents, to within 90 days of the judgment, issue circulars to all prosecutors and police officers directing them on the illegality of arresting, prosecuting and harassing adolescents engaging in mutually consensual, non-coercive, non-exploitative sexual relations.
E. An order of mandamus compelling the 2 nd Respondent, to within 90 days of judgment, submit to the National Assembly a Bill to amend Sections 8, 9, and 11 of the Sexual Offences Act to decriminalize consensual, non-coercive, non-exploitative sexual relations between adolescents and to submit periodic progress reports to this Honorable Court every sixty (60) days.
F. An order for general and aggravated damages to the 1 st , 2 nd , and 3 rd Petitioners for the violations suffered as a result of the arrest, detention, and prosecution for engaging in consensual, non-coercive, and non-exploitative sexual relations.
G. Any other relief that this Honourable Court deems just and appropriate in the circumstances.
THE 1 ST RESPONDENT’S CASE
35. The 1 st Respondent opposes both the Petition and the Notice of Motion dated 5 th August 2025. Its position is that the proceedings seek to undermine the constitutional and statutory obligation of the State to protect children from sexual exploitation and abuse through the framework established under the Sexual Offences Act, No. 3 of 2006. The 1 st Respondent contends that Sections 8, 9, 11 and 43(4)(f) of the Act constitute lawful and constitutionally compliant child-protection measures intended to safeguard children from premature sexual activity, exploitation, and the attendant physical, psychological and social consequences.
36. The 1 st Respondent’s case is principally advanced through the affidavits sworn by Alex Gituma, PC Elizabeth Wangwa and PC Peter Githaka. It is contended that the criminal proceedings against the Petitioners arose from lawful investigations initiated upon receipt of complaints involving minors.
37. With regard to the 1 st Petitioner, the 1 st Respondent avers that investigations commenced following a missing person report concerning CNK, who was then alleged to be a fifteen-year-old minor. According to the 1 st Respondent, CNK was subsequently traced while cohabiting with the 1 st Petitioner. It is contended that the 1 st Petitioner identified himself to investigators as a boda boda operator and did not disclose that he too was a minor, thereby leading investigators to reasonably believe that he was an adult male engaged in a sexual relationship with a child.
38. The 1 st Respondent further states that it was only after plea taking that counsel for the defence raised the issue of the 1 st Petitioner’s age, prompting the trial court to order an age assessment. The said assessment subsequently confirmed that the 1 st Petitioner was below the age of eighteen years. Thereafter, the prosecution reviewed the matter pursuant to the Office of the Director of Public Prosecutions Decision to Charge Guidelines and withdrew the proceedings under Section 87(a) of the Criminal Procedure Code upon confirmation that both parties were minors.
39. Similarly, in relation to the 2 nd Petitioner, the 1 st Respondent avers that the evidence initially presented to the prosecution indicated that he was an adult engaged in boda boda operations. It is pleaded that subsequent age verification established that he too was a minor at the material time, following which the charges were withdrawn in accordance with prosecutorial policy and the best interests of the child. The 1 st Respondent therefore maintains that all prosecutorial decisions were undertaken lawfully, independently and in good faith on the basis of the evidence available at the material time.
40. On the constitutionality of the impugned provisions, the 1 st Respondent submits that Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act serve a legitimate constitutional purpose, namely the protection of children from exploitation, manipulation and the harmful consequences associated with premature sexual conduct. It is contended that the law recognises that children lack the emotional, psychological and cognitive maturity necessary to appreciate the consequences of sexual activity and therefore cannot lawfully consent to sexual intercourse.
41. In support of that position, reliance is placed on CKW v Attorney General & another [2014] KEHC 3657 (KLR), P.K.S v Republic [2013] KEHC 2759 (KLR), Solomon v Republic [2024] KEHC 974 (KLR), Ezekiel Cheruiyot Koros v Republic [2010] eKLR and Bonu v R [2010] eKLR for the proposition that the Sexual Offences Act lawfully criminalises sexual conduct involving minors in furtherance of the State’s protective obligations and that minors lack the legal capacity to consent to sexual relations.
42. The 1 st Respondent further contends that the prosecution of the Petitioners did not violate their constitutional rights. It is submitted that the Office of the Director of Public Prosecutions is an independent constitutional office established under Article 157 of the Constitution and mandated to institute, undertake and discontinue criminal proceedings independently. Reliance is placed on Yunus Abdul Rubi & 2 others v Director of Public Prosecution & 2 others [2016] KEHC 4146 (KLR).
43. According to the 1 st Respondent, the prosecutorial decisions complained of were informed by the evidence presented by investigating officers and were made in the lawful exercise of constitutional discretion. It is contended that once it became apparent that the Petitioners were minors, the proceedings were withdrawn in accordance with the law and applicable prosecutorial policy. The 1 st Respondent therefore denies any arbitrariness, malice, discrimination or abuse of power.
44. The 1 st Respondent further avers that prosecutorial policy concerning children in conflict with the law requires the opening of protection and care files to facilitate counselling, welfare support and continuity of education for affected minors. It is therefore contended that the criminal justice process incorporated child-sensitive safeguards consistent with Article 53(2) of the Constitution.
45. In response to the allegation that the State failed to provide adolescents with adequate sexual and reproductive health information and services, the 1 st Respondent submits that various reproductive health and adolescent-support programmes have been implemented through the Ministry of Health, the Ministry of Education and the Kenya Institute of Curriculum Development. Reference is made to reproductive health education in schools, menstrual hygiene management programmes and the National Guidelines for the Provision of Adolescent and Youth-Friendly Services. The 1 st Respondent therefore disputes the allegation that the State failed in its constitutional obligations relating to adolescent reproductive health information and services.
46. Regarding the reliefs sought in the Petition, the 1 st Respondent contends that the prayer for certiorari quashing the impugned criminal proce
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