Mathenge & another v Inspector General of Police & 4 others; National Commission on Human Rights & 3 others (Interested Parties) (Constitutional Petition E048 of 2023) (2024)
The Centre for Minority Rights and Strategic Litigation and others filed a petition against Police Inspector General Japhet Koome, two anti-LGBTQI+ activists, and a national advocacy group named the “Anti-LGBTQI+ Movement” for permitting religious leaders and advocacy groups to organise homophobic protests following court decisions favourable to the LGBTQI+ community. The judge ruled that clerics, politics and anti-LGBTQI+ groups cannot hold homophobic protests or incite violence against LGBTQI+ identifying individuals, and the judge prohibited any state agency from attempting “expulsion from Kenya or any part of Kenya of LGBTQI+ identifying individuals or closure of organisations serving LGBTQI+ identifying individuals”.

Kaluma v NGO Co-ordination Board & 5 others (Application E011 of 2023) (2023)
George Peter Kaluma, a Kenyan Member of Parliament, tried to challenge the judgment of the Supreme Court of Kenya in respect of the case NGO Coordination Board vs Eric Gitari & Others, SC Petition No. 16 of 2019 on 24th February 2023 on the basis that the judgment usurped the sovereign power of the people, the legislative role and authority of Parliament and purported to amend Article 27(4) of the Constitution; that the Court disregarded the views of the people of Kenya on “sex” and “gender”, and that the decision has opened the door wide to registration of associations, entities, organisations whose naming and/or objects are contrary to the law and inconsistent with public interest; and that there is widespread discontent, uproar, dissent and displeasure with the judgment by the general public as reported across all mainstream media and social media platforms. However, the Kenyan Supreme Court upheld its February 2023 decision which found that denying the registration of the NGLHRC was unconstitutional. This is a landmark case that has entrenched the right to freedom of association for LGBTQI+ persons.

Ramtu v Muslims for Human Rights (MUHURI) (2023)

The claimant worked for MUHURI as the Executive Director. After successful completion of 6 months probation, MUHURI terminated the claimant’s employment without notice or hearing. The claimant claimed that the circumstances leading to termination of employment were discriminatory, unconstitutional and in contravention of the respondent’s human resource policy or the due process. The claimant also claimed that the termination of employment was actuated by malice following allegations that the claimant was a proponent of the LGBTQI+ community (a matter that had been addressed during her interview and recruitment process but was later being used to terminate her employment). The court ruled in the claimant’s favour, also reprimanding MUHURI for failing to address the claim of discriminatory treatment of the claimant at work, so the judge ruled that such conduct is without justification and the claimant was entitled to damages. The judge also ruled that the termination of the claimant’s employment by the respondent was devoid of due process and was unlawful and unfair.

Constitutional Petition by C.O.I. & G.M.N. against Forced Anal Examination (2018)
Two men accused of homosexuality have filed a constitutional petition in order to challenge the use of forced anal examinations. According to the men, doctors at Mombasa’s Coast General Provincial Hospital (known as Madaraka Hospital) and law enforcement officials violated their rights by subjecting them to forced anal examinations while they were in police custody on charges related to homosexual conduct in 2015. The Court of Appeal in Mombasa ruled on 22 March 2018 that forced anal examinations on individuals accused of same-sex relations are unconstitutional. This decision overturned a 2016 High Court ruling that had upheld the use of such examinations by authorities.

EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) [2019] KEHC 11288 (KLR) JM, MO, MA     

In June 2016, a petition was brought by EG, a Kenyan lawyer and director of an NGO, that challenged sections of the Kenyan Penal Code which criminalises same-sex sexual conduct on the basis that they were unconstitutional on grounds of vagueness and uncertainty. In November 2016, a petition was brought by four individuals and three civil society organisations on the basis that individuals have experienced discrimination and physical attacks as a result of their actual or perceived sexual orientation which was a violation of their rights to privacy, dignity and security of the person. The High Court in Nairobi considered both petitions simultaneously due to their similarity in nature. The Court held that the provisions in the Penal Code which criminalise same-sex sexual conduct were constitutional and did not infringe the rights to equality, dignity, privacy, health, expression, freedom and security of the person, or the right to a fair hearing. The Court stated that decriminalising same-sex sexual conduct on grounds that it is consensual and is done in private between adults would lead to cohabitation of same-sex couples which would infringe the constitutional provisions that protect the family as the “natural and fundamental unit of society”..

Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others (2015)
In March 2013, the Non-Governmental Organizations Coordination Board rejected the LGBTQI+ rights group NGLHRC’s request to register because the name of the organisation was “unacceptable’” and because Kenya’s penal code “criminalises gay and lesbian liaisons”. The High Court of Kenya ruled that the members of the group could formally register their organisation under the Non-Governmental Organizations Coordination Board Act. 

Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others (2014)
This is the case of an intersex child who had been denied a birth certificate by the hospital, as the staff had been unable to determine the child’s sex. The High Court of Kenya at Nairobi held that under the Constitution, the Children’s Act, and the international treaties to which Kenya is a party, children are protected against all forms of discrimination, including on the grounds of intersex status. The Court ordered the government to develop guidelines for the recognition and support of intersex people.

Republic v Kenya National Examinations Council & another Ex-Parte Audrey Mbugua Ithibu (2014)

Audrey Mbugua was diagnosed with Gender Identity Disorder. She later sought hormonal treatment, changed her name from Andrew to Audrey, and decided to change her national identity card, passport and academic papers to reflect her changed gender from male to female. She asked the Kenya National Examinations Council (the Council) to replace her Certificate of Secondary Education by changing her name and removing the existing male designation. However, the Council refused, indicating that “regulations do not allow addition or deletion of a name after award of a certificate to a candidate”. The Council also stated that the available medical records did not show that Audrey had completed her transition to female gender, and that her national identity card and passport still reflected her former name. Audrey sought a court order compelling the Council to follow her requests, she argued that the refusal to change her name and gender mark was “unreasonable and unjustified and unfair in the circumstances,” and was “in breach of the rules of natural justice”. In this case, the High Court ordered the Council to change the name and remove the existing gender designation from the academic certificate as requested by Audrey Mbugua. The court based its ruling on Art. 10 and 28 of the Kenyan Constitution on respecting and promoting human dignity. This is a significant ruling for the transgender community in Kenya.

Ali Abdi Shabura v. Republic (2012) eKLR Criminal Appeal 90 of 2007

In this case, Ali Abdi Shabura was charged and convicted of committing an unnatural offence contrary to the Kenyan Penal Code against two young boys which involved acts of sodomy. Ali Abdi Shabura attempted to appeal against his conviction and sentence on various grounds, including that there was no evidence to support the charges against him because the medical expert’s evidence exonerated him from the offence, the evidence of the two young boys was not corroborated, and the sentence passed against him was harsh and contrary to Section 162(a) of the Penal Code. However, all of the appellant’s arguments failed and the High Court held that there was adequate evidence to convict the appellant, the sentence was lawful and the appeal was dismissed. 

One of the key points in this case is that the High Court observed that the phrase “against the order of nature” as used in the “unnatural offences” provision of the Kenyan Penal Code means “sexual intercourse or copulation between man or woman in the same sex, or either of them with a beast”’, which therefore includes acts between women. Although this specific case did not concern lesbian and bisexual women, and there appears to have been no cases where lesbian and bisexual women have been prosecuted under this provision of the Kenyan Penal Code, this ruling leaves open the possibility of criminalisation and it illustrates the potential risks that the vague criminal language can pose to their lives.

Monica Jesang Katam v Jackson Chepkwony & another [2011] eKLR

This case concerns the right to inheritance in marriages between women under the Nandi tradition. The High Court affirmed the right of Inheritance to Monica Jesang who was a beneficiary of the estate of Cherotich Kimong’ony Kibserea (deceased). The High Court at Mombasa in deciding the case upheld customary law by observing that the Nandi were to rightly claim protection under Article 11 (1) of the 2010 Constitution of Kenya, which recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people.

Richard Muasya v. the Hon. Attorney General, High Court of Kenya (2 December 2010)

In this case the High Court held that it was acceptable for an intersex person to be confined separately from other prisoners in detention and that solitary confinement was lawful as there was no suitable room available for RM during the criminal trial. However, damages were granted under inhuman and degrading treatment, given that the guards had deliberately exposed the petitioner’s genitalia in the presence of other persons. The High Court ruled that the petitioner did not face discrimination or lack of legal recognition from having to be registered as either male or female and there was no need to create a third gender category.