On December 15, 2023, the High Court in Nairobi delivered a judgment that addresses the legal position of out-of-court settlements in cases involving sexual violence. In Constitutional Petition E416 of 2021, the court held that agreements that prevent the prosecution of suspects in sexual violence cases are unconstitutional and unlawful. The case was filed by IW and the Centre for Rights Education and Awareness against four respondents, including a former employer, a police officer, the Inspector General of Police, and the Attorney General.
The first petitioner, a university student, reported that she was sexually assaulted by her employer after being instructed to report to a different branch of his business. After disclosing the incident to her partner, she reported the matter at Mlolongo Police Station. The investigating officer advised her to report the location of the incident as Syokimau and not Madaraka. The officer also directed her to undergo medical tests at a hospital. The medical report confirmed sexual contact, and forensic evidence was collected.
The first petitioner stated that the investigating officer later suggested she enter into a financial settlement with the suspect. She said she was asked to modify her statement and to accept a sum of money to avoid forwarding the case to the Director of Public Prosecutions. According to the petition, she agreed to receive one hundred and thirty thousand shillings in four installments. The officer took a photograph of the written agreement but did not allow anyone else to keep a copy. Payments were made in part, and a portion of the money was transferred to the officer.
The petitioners asked the court to declare that the police had failed in their duty to investigate the matter and protect the rights of the first petitioner. They sought a declaration that the out-of-court agreement was coerced and that the police and the state had violated the rights of the survivor under the Constitution and international law. They also requested that the court compel fresh investigations, impose sanctions on the officer involved, and award compensation.
The respondents argued that the petition should have been addressed through the Internal Affairs Unit or the Independent Policing Oversight Authority. The court rejected that argument, stating that those bodies do not have the mandate to offer constitutional remedies or compensation. The court found that the High Court had the proper jurisdiction to determine the matter.
The court stated that police officers do not have the legal power to initiate or approve out-of-court settlements in sexual offence cases. That power rests only with the Director of Public Prosecutions, as outlined in section 40 of the Sexual Offences Act and article 157 of the Constitution. The court also stated that such agreements infringe on the rights to equality, dignity, and freedom from violence under articles 27, 28, and 29 of the Constitution. They also violate international instruments that Kenya has ratified, including the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Civil and Political Rights, and the Maputo Protocol.
Although the court found that the existence of the out of court agreement was not proved to the required standard, it issued two declarations first, that any agreement in sexual violence cases that results in the non prosecution of those who may be responsible is unconstitutional. Second, that police officers are not allowed to enter into or approve such agreements unless directed by the Director of Public Prosecutions acting within the Constitution and the law. The court declined to issue the other orders requested, including compensation and sanctions, and directed each party to bear its own costs.
The judgment addresses how police handle sexual offence cases and clarifies that informal settlements are not a legal option in cases involving allegations of rape or sexual violence. It provides direction to law enforcement, survivors, and civil society on the proper procedure for dealing with such cases. It reinforces that investigations must follow the law and that any decision to stop a prosecution must come from the office of the Director of Public Prosecutions. The judgment also highlights the role of the courts in interpreting the Constitution and enforcing accountability when institutions fail to act in line with legal standards.
For groups that provide legal and psychosocial support to survivors, this judgment serves as a reference point in challenging practices that undermine access to justice. It also underscores the need to document and preserve evidence in cases of abuse. Although the court did not grant all the reliefs requested, the declarations made set a legal standard that prevents the use of informal agreements to settle criminal offences related to sexual violence.
The court has stated that sexual violence is a matter for prosecution, not negotiation. The law does not permit informal resolution of such cases through monetary payment or private arrangements. This judgment will influence future cases and shape how victims of sexual violence are treated in police stations and in the justice system.
Find the full judgment here