In Summary

  • The unanimous ruling was made be by five juge bench
  • The court maintained that it could not review its appeal

The Supreme Court has dismissed an appeal by Homa Bay MP Peter Kaluma challenging its landmark decision on the LGBTQ community.

In a judgement delivered on Tuesday, the five-judge bench led by Deputy Chief Justice Philomena Mwilu said the court could not sit on appeal or review its decisions.

The bench was composed of Justices Njoki Ndungu, Mohamed Ibrahim, Smokin Wanjala and William Ouko.

They said the apex court could only sit on appeal or review its decision in the manner provided for by Section 21A of the Supreme Court Act.

The circumstances include, if the judgment, ruling or order is a nullity by virtue of being made by a court which was not competent and if the court was misled into giving judgment, ruling or order under the belief that the parties have consented.

However, the Supreme Court held that Sections 162,163 and 165 of the Penal Code and the provisions of Article 24 of the Constitution do not convey the intention to limit the freedom of association of LGBTQ persons merely due to their sexual orientation.

“Flowing from our findings above, the final orders to be made are as follows: (i) The Notice of Motion dated 9th March 2023 is dismissed,” the ruling read in part.

“On the provisions of Article 36, the Court found that the 1st respondent’s limitation of the 2nd respondent’s right to freedom of association was not proportionate to the aim sought for registration of the proposed NGO.”

The Supreme Court also held that the word “sex” as used in Article 27 of the Constitution, was to be interpreted as to include the expression “sexual orientation.”

The Supreme Court ordered Kaluma to bear the cost of his application, noting that he ought to have known that “his application was misconceived ab initio”.

September 12, 2023

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