By Ongaga Ongaga
A verdict that allows adolescents engaged in consensual, non‑coercive peer relationships to be shielded from prosecution under the Sexual Offences Act has elicited sharp reactions across Kenya.
In its ruling on Petition E490/2025 (HSO & 3 Others v. ODPP & 4 Others), the High Court declared that applying sections of the law to such relationships is unconstitutional, saying it violates rights to equality, dignity, privacy, health, education, and the best interests of the child.
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The Court directed the Office of the Director of Public Prosecutions to publish prosecutorial guidelines, the National Police Service to review arrest protocols, and State organs to ensure adolescents can access sexual and reproductive health services without fear of criminalisation.
While the judgment has been hailed by some as progressive, it has also provoked uproar.
Former Law Society of Kenya President Faith Odhiambo has warned that the ruling risks weakening protections for minors in a country already facing a national crisis of gender‑based violence and femicide.
She argues that, “distinguishing consensual peer relationships from exploitation is dangerously subjective, and without precise safeguards, predatory conduct could slip through under the guise of consent.”
Her concerns highlight the failures of Kenya’s criminal justice system, which has often left survivors exposed through poor investigations, delayed prosecutions, and impunity for offenders.
Odhiambo insists that reform of the Sexual Offences Act is urgent but must be survivor‑centered.
She believes the law should protect juveniles from criminalisation in age‑appropriate peer relationships while tightening enforcement against exploitation and abuse.
The ruling has raised difficult questions about how genuine consent among adolescents of varying maturity levels can be determined, and whether the “close‑in‑age” exception might erode hard‑won protections for children, particularly girls who disproportionately suffer sexual violence.
Critics worry that diversion mechanisms previously used in cases involving teenagers could be weaponised, undermining gains in combating child sexual abuse.
Odhiambo stresses that justice must protect the vulnerable, not create new vulnerabilities.
The legacy of this judgment will depend entirely on how it is implemented and interpreted by prosecutors and courts.
Unless prosecutorial guidelines and police protocols are drafted with precision, the ruling could embolden predators while leaving survivors exposed, according to critics.
