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Children are not automatically immune from criminal prosecution in Kenya.
The Children Act of 2022 sets firm age and capacity thresholds that decide when youthful behaviour becomes a matter for the courts.
Some ages place children beyond prosecution, others carry a presumption of incapacity that the state can rebut, and older minors may face charges while still protected by child-justice safeguards.
Section 668(1) of the Children Act of 2022 provides that a person under 12 years is not criminally responsible for any act or omission; they may not be prosecuted for a criminal offence.
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The grey area: The 12 to 14-year-old test
For children between the ages of 12 and 14, the law introduces a crucial test.
While they can be charged, there is a legal presumption that they are doli incapax, a Latin term meaning 'incapable of wrong'.
This does not provide automatic immunity.
Instead, it places a special burden on the prosecution.
To charge a child in this age bracket, the state must first prove to the court that the child knew what they were doing was not just naughty or mischievous, but seriously wrong.
The Kamiti Maximum Prison complex in Nairobi, Kenya, which houses the Kamiti Youth Corrective Training Centre (YCTC), a borstal institution
The prosecution must provide evidence to show that the child had sufficient maturity to understand the consequences of their actions.
If the prosecution cannot overcome this hurdle, the charges cannot be sustained.
The Act presumes anyone under 14 cannot differentiate right from wrong unless the court is satisfied otherwise.
For children aged 12–13 this means the prosecution must prove capacity before a criminal conviction can be sustained.
Once a minor reaches the age of 14, this presumption falls away.
A person aged 14 to 17 is generally considered capable of understanding the nature of their actions and can be held responsible for any offence under the law, from theft and assault to more severe crimes.
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Law in action: Real-world cases
Courtroom in session
Kenyan courts have seen several high-profile cases involving minors, illustrating how these legal principles are applied.
Moi Girls High School dormitory fire (2017 - conviction 2021). A 14-year-old student was charged over a 2017 dormitory blaze that killed ten classmates and, in December 2021, was convicted of manslaughter and sentenced to five years.
Kiambu murder case (2023). A Kiambu court in 2023 sentenced a 16-year-old to ten years’ imprisonment after convicting her of murdering a 20-month-old baby; the court considered prior statements by the accused, including reported confessions to other alleged killings.
Litein Boys High School unrest (September 2025). Eight students were arrested and arraigned on charges of arson, burglary and malicious damage after a night of unrest at Litein Boys; the magistrate ordered seven days’ detention and barred publication of images and videos of the suspects because they were minors.
Justice to correct, not punish
Even when a minor is charged, the process is significantly different from the adult justice system.
Children's court door
The law’s primary goal is not punishment but rehabilitation and correction.
Children’s Courts: Minors are tried in specialised Children's Courts.
Proceedings are held in private to protect the child’s identity and are designed to be less intimidating.
Detention: If a child must be detained, they must be held separately from adults.
This is a mandatory protection to prevent exposure to hardened criminals.
Focus on Rehabilitation: The court has a range of options beyond imprisonment, including committal to a borstal institution (a correctional facility for young offenders) or placing the child under the care of a guardian or a charitable children’s institution.
The aim is to guide the child back to a constructive path.
Parental Role: The law requires that parents or guardians be notified and involved in the assessment and court processes; they may be heard and must attend where lawfully notified.
In essence, while the law does allow for a child to be charged, it is not a straightforward process.
Signboard to Kamae Girls Bostal Institution, located within the Kamiti Maximum Security Prison compound in Kiambu, Kenya.
It is governed by strict age limits and, for younger children, a test of their understanding.
The entire justice system for minors is built on the principle that a child in conflict with the law is a child in need of guidance and correction, not just condemnation.