The Petitioners challenged the validity and enforcement of Sections 8, 9, 11 and 43(4)(f) of the Sexual Offences Act, 2006, to the extent that they criminalize consensual, non-coercive and non-exploitative sexual relationships between adolescents of similar age. The Petitioners included three adolescents (HSO, AMO, TO) and Network for Adolescent and Youth of Africa.

The Petitioners had been arrested and charged of defilement and sexual assault despite the relationships being consensual, non-coercive and between adolescents of close proximity.

The Petitioners’ argument was that the Criminal Justice system fails to distinguish between exploitative sexual conduct involving coercion, abuse of power or predation, and consensual peer relationships among adolescents. Consequently, children are exposed to arrest, detention, prosecution, stigma and long-term socio-economic and psychological harm  in circumstances inconsistent with constitutional principles and human rights standards.

The Respondents opposed the petition seeking that the impugned provisions were constitutionally valid child protection measures, that the prosecutorial actions undertaken were lawful, unreasonable and made in good faith and no constitutional violations were made.

On the issue of whether Sections 8, 9, 11 and 43(f) of the Sexual Offences Act are unconstitutional to the extent that they criminalize consensual, non-coercive and non-exploitative sexual conduct between adolescents;

The court emphasized  the importance of protecting children from sexual abuse as a core constitutional duty of the state under Article 53(1)(d) of the Constitution of Kenya, 2010.

Accordingly, the court held that the blanket criminalization of consensual adolescent peer conduct failed to satisfy the requirements of Article 24 of the Constitution of  Kenya , 2010 and violated constitutional rights to dignity, privacy, equality, health and the best interests of a child. Additionally, the court emphasized that the impugned provisions imposed liability beyond the specific harm they are intended to prevent, thereby criminalizing conduct that does not involve coercion, exploitation, or abuse.

The court further emphasized that the legal framework should distinguish between an explosive conduct and consensual peer relationships;

1. Exploitative  conduct is non- consensual, predatory, coercive or abusive conduct involving a clear power imbalance. Therefore, the impugned provisions are constitutionally valid to the extent that they criminalize exploitative, coercive and predatory sexual conduct involving children, but are unconstitutional in their application to consensual, non-coercive and non-exploitative sexual conduct between adolescents of similar age and developmental capacity.
2. A consensual peer relationship is a non-coercive conduct among adolescents of similar or close proximity age and development capacity which requires a different approach, hence criminalizing consensual conduct among adolescents unjustifiably infringes dignity and privacy which may deter adolescents from accessing essential health care.

i.                    The decision does not remove criminal liability for adolescents  that engage in sexual activities  involving coercion, exploitative, and non-consensual conducts as they are criminal and punishable under the Sexual Offences Act.

ii.                  Consensual sexual behaviour among adults should, where appropriate, be addressed through counselling, health interventions and child protection measures rather than automatic criminal prosecution.

iii.                Adolescents are independent constitutional right-holders and therefore enjoy constitutional rights which must be taken into account within the criminal justice system and protected from disproportionate state action.