Groups seek expungement of criminal records after court ruling on teen relationships

A recent landmark ruling by the High Court of Kenya has declared the blanket criminalisation of consensual adolescent peer relationships unconstitutional, marking a significant shift in the country's approach to juvenile justice. The decision, delivered by Justice Bahati Mwamuye on May 20, 2026, found that applying Sections 8, 9, and 11 of the Sexual Offences Act to non-coercive, non-exploitative relationships between close-aged adolescents violated fundamental constitutional rights, including dignity, privacy, and the best interests of the child. Following this ruling, civil society organisations are urgently advocating for the expungement of criminal records for minors previously convicted under these now-unconstitutional applications of the law, highlighting the existing legal vacuum for such expungements in Kenya and the need for legislative reform.

Kenya's legal landscape concerning adolescent sexuality has undergone a profound transformation following a pivotal High Court decision. On May 20, 2026, Justice Bahati Mwamuye delivered a landmark ruling that declared the criminalisation of consensual adolescent peer relationships unconstitutional, provided there is no evidence of exploitation, coercion, abuse, or power imbalance. This judgment, stemming from Petition E490 of 2025, represents a critical reinterpretation of the Sexual Offences Act (SOA) and its application to young people, moving away from a punitive stance towards one that prioritises protection and dignity.

The ruling has far-reaching implications, not only for future cases involving adolescent relationships but also for individuals already burdened by criminal records under the previously broad interpretation of the SOA. Civil society organisations have swiftly responded, calling for the immediate expungement of these records and the provision of psychosocial support for affected minors. This advocacy highlights a significant gap in Kenyan law: the absence of a clear legal framework for expunging criminal records, particularly when convictions are based on statutes subsequently deemed unconstitutional. The current situation necessitates a comprehensive review of existing legal mechanisms and a proactive legislative response to align with the spirit of the High Court's decision.

The legal framework governing sexual offences in Kenya is primarily enshrined in the Sexual Offences Act of 2006 (SOA), which was enacted with the laudable objective of protecting children from sexual abuse, exploitation, and coercion. Under the SOA, the age of consent is generally set at 18 years. Prior to the recent High Court ruling, Sections 8, 9, and 11 of the SOA were often broadly applied, leading to the criminalisation of consensual sexual activity between adolescents, even when the parties were close in age and no exploitation was involved.

This broad application resulted in numerous teenagers facing arrest, detention, and the lifelong stigma associated with a criminal record, effectively punishing what many considered normal developmental behaviour. Penalties for such offences could be severe, with defilement of a child between 16 and 18 years, for instance, carrying a minimum sentence of fifteen years imprisonment. The disproportionate impact of these laws on adolescents, particularly those from low-income backgrounds, prompted human rights advocates to challenge their constitutional validity, arguing that they failed to distinguish between predatory abuse and consensual peer relationships.

Compounding this issue is the current state of expungement laws in Kenya. There is no explicit statutory provision for the expungement of criminal records, except where a conviction is overturned on appeal or revision. This legal vacuum means that individuals who have served their sentences or whose convictions are now rendered questionable by constitutional rulings continue to carry the burden of a criminal record, impacting their employment opportunities and social reintegration. While a proposed Criminal Procedure Code (Amendment) Bill, 2024, seeks to allow expungement for minor offences, it specifically excludes sexual offences, leaving a significant gap for those affected by the recent High Court judgment.

The High Court's ruling in Petition E490 of 2025 represents a critical jurisprudential development, clarifying the interpretation and application of the Sexual Offences Act. Justice Mwamuye explicitly distinguished between exploitative sexual violence and consensual, non-coercive, and non-exploitative sexual conduct between adolescents of close age proximity. The Court found that the blanket criminalisation of such relationships was overbroad and disproportionate, violating constitutional protections related to equality (Article 27), dignity (Article 28), privacy (Article 31), health (Article 43), education (Article 43), and the best interests of the child (Article 53).

In its orders, the High Court directed investigative and prosecutorial agencies to develop guidelines to differentiate between consensual adolescent relationships and cases involving abuse, coercion, or exploitation. Furthermore, state agencies responsible for health, education, and child protection were mandated to formulate policies ensuring adolescents can access sexual and reproductive health information and services without fear of criminalisation. This directive aims to foster an environment where adolescents' developmental stage is nurtured rather than criminalised, aligning legal practice with constitutional values.

However, the practical implementation of this ruling, particularly concerning past convictions, faces significant hurdles due to the absence of a robust expungement framework in Kenyan law. As noted, the Directorate of Criminal Investigations currently lacks clear legal authority to remove criminal records unless a conviction is overturned on appeal. This means that individuals previously convicted under the unconstitutional application of the SOA provisions may find themselves in a legal limbo, requiring individual appeals or constitutional petitions to challenge their records, a process that can be resource-intensive and protracted.

Comparative legal analysis, as highlighted in discussions around Kenya's expungement needs, often points to models like South Africa's, which provides clear criteria and time limits for record expungement. The current legislative proposal, the Criminal Procedure Code (Amendment) Bill, 2024, while a step towards addressing expungement for minor offences, explicitly excludes sexual offences. This exclusion means that specific legislative action, beyond the scope of the current bill, will be necessary to provide a pathway for expungement for those affected by the High Court's ruling, ensuring that the spirit of the judgment is fully realised and past injustices are rectified.

The High Court's ruling on consensual adolescent relationships marks a transformative moment for Kenya's justice system, affirming that adolescence is a developmental stage to be nurtured, not a crime to be punished. For legal practitioners, this decision necessitates a thorough understanding of the new interpretative framework for the Sexual Offences Act, particularly when advising on cases involving minors. Defence attorneys will find stronger grounds to challenge prosecutions where exploitation, coercion, or power imbalances are absent, while prosecutors must adhere to the court's directive to distinguish between genuine abuse and consensual peer interactions.

The immediate challenge, and a critical area for legal advocacy, lies in establishing a clear and accessible mechanism for the expungement of criminal records for those previously convicted under the unconstitutional application of the SOA. Practitioners should monitor legislative developments closely, as civil society groups continue to press for reforms that would allow for such expungements. Without specific statutory provisions, individuals may need to pursue constitutional petitions to clear their names, underscoring the urgent need for legislative action to complement the judiciary's progressive stance and ensure that the promise of this landmark ruling extends to all affected individuals.