The various Kenyan statutes use multiple terms to refer to a child – child, infant, juvenile, minor, young person.
The statutes also ascribe different age categorisations to various terms. The Age of Majority Act (Cap. 33 of the
Laws of Kenya, Section 2) defines a person below the age of 18 as a ‘minor’, whereas the Children and Young
Persons Act (Cap. 141 Section 2) provides that a ‘child’ is a person under the age of 14, a ‘juvenile’ is a person
aged between 14 and 16 years and a ‘young person’ is one aged between 16 and 18 years.
The Kenya Employment Act (Cap. 226) provides that a person under 16 years of age is a child for the purpose of being
engaged in gainful employment in any industrial undertaking.
The Kenya Marriage Act (Cap. 150) enables anyone
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16 years of age and above to be married, but the consent of the parent or guardian is required for those below
21. The Hindu Marriage and Divorce Act (Cap. 157) prescribes 16 years as the minimum age of marriage
for females and 18 years for males. Under the Traffic Act (Cap. 440, Section 33), a driving license may not
be issued to any person below 16 years, or below 18 years where the license sought is for motorcycles. The
Liquor Licensing Act (Cap. 121, Section 30) and the Traditional Liquor Act (Cap. 122, Section 27) prohibit
the selling or delivering of liquor to persons under the age or apparent age of 18. The Adoption Act (Cap.
143) defines a child as a person under 18 years, but this does not include a person who is or has been married.
The Guardianship of Infants Act (Cap. 144) has a similar definition.
The Matrimonial Causes Act (Cap. 152,
Section 2) gives different age categories for different races. It provides that an African child is a person who has
not attained 16 years of age for males and 13 years for females. For other races, a child is an unmarried person
who has yet to attain the age of majority.
The above disparities in the definition and description of a child have practical implications for the application
and observance of children’s rights and welfare. They complicate the administration and protection of these
rights, as it is not clear who is a child. There is need to harmonise the descriptions and age categorisations for
more efficacious administration and protection of children’s rights. A common age of entry into adulthood
is required. Eighteen years seems appropriate and reasonable.
Everybody below 18 should be accorded the
description of “child,” and the other descriptions and age categorisations should only be retained and applied
where it is reasonable and necessary. For instance, the provision in the Penal Code (Cap. 63) that a male child
below 12 years of age is immune from criminal prosecution for a sexual offence should be retained, but those
in the Matrimonial Causes Act ascribing different ages for different races (and in the case of Africans for dif
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ferent genders) should be removed