In re FC (Minor) (Children's Case E028 of 2025) (26 August 2025) (Directions) [2025] KEMC 351 (KLR)
The bottom line
#A Kilifi court ruled that child marriage is always abuse, even if the girl ran away willingly, and ordered the man's re-arrest and prosecution.
What this practically means
#Executive summary
#Key legal issues
#Whether child marriage is abuse and an offence even where the child took herself to the perpetrator or passed as an adult
Yes. Child marriage constitutes abuse and is an offence under section 23 of the Children Act irrespective of the child's conduct or apparent consent; once known to be a child, the State and the court are under a duty to protect her in her best interests.
Section 2 of the Children Act defines child marriage as marriage or cohabitation with a child or any arrangement for such. Child abuse is defined to include acts or omissions affecting a child's healthy social and emotional development. The court found the minor withdrew from school, showed distress and that early motherhood and marriage lead to a cycle of abuse, placing her squarely within sections 144(j), (k) and (l) as a child in need of care and protection.
Whether an unborn child is a 'child' under the Children Act
No. An unborn child cannot be considered a child under the Act; the court considers the best interests of the child victim, and those interests will safeguard the rights of the unborn child.
The court interpreted section 2 of the Children Act. The Act's protection attaches to children as defined; a foetus does not fall within that definition. The ODPP's decision premised on the unborn child's right to parental love could not displace the court's duty to the born child victim, whose best interests would simultaneously protect the unborn child's welfare.
Whether the Chief Magistrate could interfere with the ODPP's power to defer charges and release a suspect
No. Only the ODPP has the power to charge under article 157, and that power cannot be interfered with by any agency or institution including the Judiciary; the court would not delve into the deferment or the decision not to charge.
The court found the ODPP had given reasons for deferment in its letter of August 25, 2025. While it reviewed the lawfulness of the release under article 49(1)(f) and the Police Standing Orders - concluding the release was proper though it ought to have occurred at the police station - it declined to interrogate the merits of the prosecutorial decision, but directed the file to the Regional Director for review.
Whether releasing the perpetrator without prosecution was in the best interests of the minor and her unborn child
It was not. A more structured way through the court system would have safeguarded the best interests of both the child and the unborn child; the perpetrator could alternatively have been charged with child abuse or child marriage rather than defilement.
The court observed the perpetrator may go into hiding and never be compelled to support the child, and that the diversion decision could deter the Ganze community from reporting future child marriages. Diversion should have been weighed at a conference considering the victim's interests. It was not mandatory to charge defilement; alternative charges existed. The court directed re-arrest and review of the file by the Regional Director.
Legal principles established
#- Child marriage is abuse and an offence under section 23 of the Children Act irrespective of whether the child took herself to the perpetrator or passed as an adult.
- An unborn child is not a 'child' within the meaning of the Children Act; the best interests of the child victim are considered and those interests safeguard the rights of the unborn child.
- The power to charge vests exclusively in the ODPP under article 157 of the Constitution and cannot be interfered with by any institution including the Judiciary.
Court orders
#- 1.The minor F.C. to remain at the Spring of Hope Rescue Centre for a further 1 month and to continue with her education during that period.
- 2.The Sub County Director of Education - Ganze Sub County to ensure that the minor is allowed to sit for her Grade 8 examinations.
- 3.During that period the minor to be placed on psychosocial support and the Children Officer to ensure compliance before the reintegration process can begin.
- 4.The prosecution file to be submitted to the ODPP-Coast Region Office in Mombasa for the Regional Director to review the file and/or make a final determination on the same in regard to the power to charge.
- 5.The OCS-Vitengeni to re-arrest the accused to be charged with the requisite offences under the Children Act.
- 6.An exclusion order issued against Michael Safari (M.S.) restraining him from taking the minor and/or living with the minor in any circumstances whatsoever until the minor reaches the age of majority.
- 7.The Children Officer, Ganze Sub County to supervise the minor as a child in need of care and protection until she attains the age of 18 years.
- 8.A power of arrest attached to the exclusion order in the event Michael Safari breaches the order.
- 9.Further directions on September 23, 2025; the minor to be availed for conferencing and summons to the mother of the minor to attend court on that date.
- Jurisdiction invoked
- Sections 135, 136, 139, 142, 144 and 145 of the Children Act (Cap 141); Article 157 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re FC (Minor) (Children's Case E028 of 2025) (26 August 2025) (Directions) [2025] KEMC 351 (KLR)", Case Analysis (2025). Children's Case E028 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/351/eng@2025-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.