Three teens challenge blanket ban on sex between adolescents

Should teens below 18 years engage in sex? Is there anything like consensual relationships between teens? Do they have mental capacity to do so, and does it amount to defilement?

These are the questions that the High Court in Nairobi will be grappling with in a case filed by three teens, who are questioning the Sexual Offences Act for allegedly failing to factor in consensual relationships between persons below 18 years. 

The first minor, codenamed HSO, is 17. he is charged at Makadara Law Court with defiling a 15-year-old girl, who he asserted was his love, on January 8 , and February 17 in Riruta.

However, his lawyers argued that the criminal case is founded on a mutual relationship between the teens.

The second teen, codenamed AMO, was charged in 2023. He said he was charged with defiling a 17-year-old girl, with an alternative of touching her inappropriately, and against her will.

This was alleged to have happened at Lucky Summer, Nairobi.

The alleged victim, codenamed TA is the third petitioner in the case. The teen said she is 19 years old and AMO is her husband. She further stated that he was charged while she was at the age of 17.

However, according to her, the sexual relations were consensual.

The court heard that the two met through a mutual friend in 2022. He later sent a friend request through Facebook, which she accepted. Their communication through social media blossomed into something bigger.

“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.

However, according to her, her stepfather was not happy with it. She said that he lured her teen love by posing as a passenger seeking transport on a motorcycle and surrendered him to 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 Attorney General.

In the case, the court heard that HSO has spent his large part of his life in the streets. He had been in a rescue centre, where he partly took his high school education.

He said that he then went to Mombasa to do manual jobs after encountering distruptions at the care centre.

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

 The teen stated that he met the complainant in the case on Christmas day in 2024 at a mall and it happened she was a neighbor.

According to him, the friendship blossomed and she allegedly disclosed that she was going through a rough time with her parent.

He said that he opted to move away with her to Dagoretti where he sourced for a manual job.

“After a month or so of such work, I managed to save Kenya Shillings Two Thousand (KES 2,000) which he used to rent a small single room in Satellite, Nairobi County, where he and the said CNK began living together. Though modest, the space gave them a sense of dignity and privacy, allowing them 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 help CNK establish a small fruit vending business while she managed the business, he continued to work manual jobs to contribute towards their rent, meals, and basic needs.

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

However, he stated that the police 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 Sh 50,000 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, criminalization 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.