The High Court has released a 17-year-old boy who was remanded in an adult jail for a year.
The Government has also been ordered to pay the boy Sh200,000 for discrimination and abuse of his right to be treated as a child.
The boy was arrested for defiling his teenage girlfriend.
Justice Hellen Omondi said the State had discriminated against the boy, named POO, based on his sex.
The judge noted that the boy was charged alone whereas under the Sexual Offences Act, he could not consent to sex on account of his age and so he too was a victim of defilement.
The judge said both the boy and the girl should have been charged with defiling each other.
“I find that the appellant was discriminated against on the basis of (his) sex in that he was charged alone but in reality, they both needed protection against sexual activities,” ruled Ms Omondi.
The boy got into trouble with the law after having sex with his girlfriend. The girl got pregnant after which her parents pressed defilement charges against the boy.
In her verdict, Omondi said the Government should redraft the penal law to accommodate children who engage in consensual sex.
She said children caught engaging in sex needed counselling, not punishment.
“Does a boy under 18 years have the legal capacity to consent to sex? Haven’t both children defiled themselves? Shouldn’t both of them be charged or better still shouldn’t the Children’s Officer be involved? Preferably, a file for a child in need of care and protection ought to be opened for both of them,” she said.
“I think these are children who need guidance and counselling rather than criminal penal sanctions. I really think this kind of situation should be re-examined in the criminal justice system.”
The judge observed that when the boy was arraigned in the magistrate’s court on February 16 last year, he told the court he was 16 years old.
The lower court ordered a medical examination to ascertain his age. However, the court was told the test was not done despite several reminders.