Court suspends teens' defilement trials amidst blanket sex ban row

The High Court in Nairobi has suspended two defilement trials involving teenagers, calling for the case files from the magistrates’ court amid a legal battle over whether there should be a blanket ban on sexual relations between adolescents.

Justice Bahati Mwamuye, in his ruling on Friday, said the case before him raised crucial questions about whether teenagers engaged in consensual sex should face the wrath of the law for defilement just as adults.

Lawyers Martin Onyango and Prudence Mutiso said the minors, codenamed HSO, AMO and TA, were among many other adolescents suffering at the hands of the criminal justice system for consensual and non-coercive exploration.

AMO and TA were physically present in court and are parents to two minors. Love struck them at the age of 17, which culminated in TA becoming pregnant. She told the court that her stepfather was unhappy about it, and lodged a criminal complaint with the police.

According to her, her husband should not have been charged before the Makadara Law Court, as it was a mutual affair, and they had happily started a family together.

Lawyer Onyango argued that the Sexual Offences Act is crafted in such a way that minors have no right to consent to sex, even with their agemates. According to him, the blanket ban has a ripple effect, as the government and parents are also not offering safe relationship education to growing adolescents.

“The experiences of the first, second and third petitioners reveal how the existing legal framework leaves adolescents without safe or confidential avenues to access sexual and reproductive health information and services. In each case, the first, second and third petitioners were forced to navigate personal relationships, pregnancy, and complex emotional realities in the absence of youth-responsive services,” argued Onyango.

Mutiso, on her part, argued that charging teenagers in court over sex creates lifelong psychological harm. According to her, the law ought to have contained a caveat for teenagers to feel safe and supported whenever they engaged in romance.

“Instead of receiving care and guidance, they were met with criminal justice processes that deepened their vulnerability and disrupted their lives. The foregoing omissions have exposed the first, second, third petitioners to undue criminalisation, disrupted their access to education and family life, and caused long-term psychosocial harm, contrary to Kenya’s constitutional and international obligations regarding children’s rights,” argued Mutiso.

According to her, the continued application of the Sexual Offences Act is incompatible with the Constitution of Kenya and its obligations under international treaties, including the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, all of which call for legal frameworks that are protective of adolescent agency, evolving capacity, and dignity.

“The criminal charges against the first and second petitioners were instituted without regard to their status as adolescents who were minors, the consensual, non-coercive and non- exploitative nature of the relationships, or the principle of the evolving capacities of adolescents,” she said.

In the case, the court heard that AMO was charged in 2023. The father of two said he was charged with defiling a 17-year-old girl, with an alternative count of inappropriately touching her against her will.

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

TA, his wife, was the victim. The teenager said she is now 19 years old and AMO is her husband. She further stated that he was charged when she was 17.

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

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

“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 had not been taught about structured relationships despite being in high school.

Justice Mwamuye directed the Attorney General and the Director of Public Prosecution to respond to the case. It will be mentioned on October 6, 2025.