Laws

KENYA

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Censorship, Freedom of Association, Freedom of Expression, Free Speech, Right of Assembly Legislation/Cases/References
See also: [DISCRIMINATION]
1.

Courts & Tribunals

On 24 April 2015, the High Court of Kenya was reported to have ruled that lesbian, gay, bisexual, intersex, transgender and queer (LGBTIQ) persons can formally register their organizations and welfare groups. That popular morality and religion should not be basis for limiting rights in Kenya [C1.3], [D1.2], [R1.1].

C1.3 Judgment: Eric Gitari v. NGO Coordination Board and Attorney General Githu Muigai Petition 440 of 2013, [2015] eKLRPDF 109.76KB, 30 APR 15
D1.2 NGLHRCPressRelease: High Court Judgment on Petition 440 of 2013 TR-4-P-15 PDF231.96kb, 24 APR 15
R1.1 HumanDignityTrust: Kenyan gay and lesbian organisation wins right to register as official NGO 24 APR 15
Civil Rights, Gay Rights, Human Rights Legislation/Cases/References
1.

Courts & Tribunals

On 24 April 2015, the High Court of Kenya was reported to have ruled that lesbian, gay, bisexual, intersex, transgender and queer (LGBTIQ) persons can formally register their organizations and welfare groups. That popular morality and religion should not be basis for limiting rights in Kenya [C1.3], [D1.2], [R1.1].

C1.3 Judgment: Eric Gitari v. NGO Coordination Board and Attorney General Githu Muigai Petition 440 of 2013, [2015] eKLRPDF 109.76KB, 30 APR 15
D1.2 NGLHRCPressRelease: High Court Judgment on Petition 440 of 2013 TR-4-P-15 PDF231.96kb, 24 APR 15
R1.1 HumanDignityTrust: Kenyan gay and lesbian organisation wins right to register as official NGO 24 APR 15
Discrimination Legislation/Cases/References
1.

National

Constitution of Kenya (enacted on 27 August 2010) [L1.1]

The Bill of Rights

Part 2 – Rights and fundamental freedoms

27 – Equality and freedom from discrimination

(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).


[Ed: It may take a Supreme Court case to firmly establish that "sexual orientation" and "gender identity" are grounds of discrimination made unlawful under the Constitution.]

2.

Courts & Tribunals

On 24 April 2015, the High Court of Kenya was reported to have ruled that lesbian, gay, bisexual, intersex, transgender and queer (LGBTIQ) persons can formally register their organizations and welfare groups. That popular morality and religion should not be basis for limiting rights in Kenya [C2.5], [D2.4], [R2.3].

On 24 July 2014, Justice George Odunga in the High Court was reported to have ruled that rights group Transgender Education and Advocacy must receive official recognition as a registered Non-Government Organization from the government, finding 'A public authority cannot be allowed to get away with discriminatory actions that deny persons their rights of assembly which is a clear abuse of the power bestowed on such an authority' [R2.2].

On 30 October 2013, in a case lodged by lawyer Eric Gitari seeking an order declaring that the Non-Governmental Organisations Coordination Board and the Attorney General have contravened the Constitution in failing to accord just and fair treatment to gay and lesbian people in Kenya, High Court Judge Isaac Lenaola directed the NGO Board and the AG to file their responses within 21 days. The court will give directions on the hearing on December 2 [R2.1].

L1.1 Parliament of the Republic of Kenya: Constitution of Kenya 480.36kb, PDF 06 MAY 10
C2.5 Judgment: Eric Gitari v. NGO Coordination Board and Attorney General Githu Muigai Petition 440 of 2013, [2015] eKLRPDF 109.76KB, 30 APR 15
D2.4 NGLHRCPressRelease: High Court Judgment on Petition 440 of 2013 TR-4-P-15 PDF231.96kb, 24 APR 15
R2.3 HumanDignityTrust: Kenyan gay and lesbian organisation wins right to register as official NGO 24 APR 15
R2.2 GayStarNews: Kenya court victory as transgender rights group is allowed to officially register 24 JUL 14
R2.1 TheStandardDigitalNews: Lawyer seeks to have government compelled to register lobby to champion gay rights 30 OCT 13
Estates, Inheritance, Property, Succession, Wills Legislation/Cases/References
1.

National

On 14 June 2012, the High Court was reportedly to rule on an application by Hellen Tum married to Jepkoech Tapkili Metto in Nandi County under customary law, who has accused her 'husband' of evicting her from land she gave her after their marriage [R1.1].

R1.1 Standard Digital: Kenya, Rift Valley: Same sex customary couple in Kenyan court over land 14 JUN 12

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Gender Identity, Intersex,
Transgender, Transexual

[?]
Legislation/Cases/References
See also: [DISCRIMINATION]
1.

Courts & Tribunals

On 07 October 2014, (High Court) Justice (Weldon Kipyegon) Korir (in Nairobi) ordered the Kenya National Examination Council (KNEC) to issue Audrey Mbugua Ithibu (formerly Andrew Mbugua) new KCSE examination certificates bearing no gender mark in the next 45 days [C1.5], [R1.4].

On 18 June 2013, Lady Justice Mumbi Ngugi of the Kenyan High Court declared that police at the Thika Police Station near Nairobi violated Alexander Ngungu Nthungi's rights and dignity by stripping him naked to ascertain his sexual identity and awarded him Sh200,000 compensation [R1.3].

Judge Weldon Korir in the Milimani Court, hearing the case of transitioning Audrey Mbugua Ithibu who petitioned the Court seeking orders to compel the Kenya National Examination Council (KNEC) to change her name from Andrew Mbugua Ithibu in the examination certificate, gave the Attorney General and KNEC 21 days to respond. The case was lited for mention on 06 August [C1.2], [R1.1].

C1.5 Quaere: Audrey Mbugua Ithibu Vs. Kenya National Examination Council & another JR 147/13
R1.4 allAfrica: Transgender Activist Wins Battle to Change Name From Andrew to Audrey on School Certificates 07 OCT 14
R1.3 AfricaReview: Second Kenyan transgender wins case 20 JUN 13
C1.2 Andrew Mbugua Ithibu v. Attorney General and Kenya National Examination Council
R1.1 Standard Digital: Andrew Mbugua in court struggle to alter name in certificates 29 MAY 13
Health, Medical Legislation/Cases/References
1.

Courts & Tribunals

On 16 June 2016, it was reported that Justice Anyara Emukule in the High Court at Mombasa dismissed the petition of Caleb Omar Idris and George Maina Njerion grounds that it had no merit since the petitioners had consented to the medical examination. The men challenged the constitutionality of undergoing an anal examination as proof of being gay [C1.2], [R1.1].

C1.2 Judgment: C O L & another v Resident Magistrate - Kwale Court & 4 others [2016] eKLR PDF 51.31kb 16 JUN 16
R1.1 NairobiNews: Mombasa court declares anal tests for homosexuals legal
Homosexuality, Sodomy Legislation/Cases/References
1.

National

The law in Kenya prohibits consensual sex between same-sex couples [R1.2].

Cap.63 Penal Code 49 -

162. Any person who -

(a) has carnal knowledge of any person against the order of nature; or
(b) has carnal knowledge of an animal;

is guilty of a felony and is liable to imprisonment for fourteen years:

Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for twenty-one years if -

(i) the offence was committed without the consent of the person who was carnally known; or
(ii) the offence was committed with that person's consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.

163. Any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years.

165. Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

(Articles amended by Act No. 5 of 2003)


On 27 August 2010 the new Constitution of Kenya was enacted and under the "equal protection clause" (Section 27) if may be argued that Sections 162–165 of the Penal Code that criminalise same-sex acts are now unconstitutional.

On 18 February 2010, six (quaere) men arrested in Kenya by police who suspected them of being gay were released as there was no evidence to prosecute the men [R1.1]

See also: Marriage

2.

Courts & Tribunals

On 16 January 2016, Justice Hatari Waweru in the High Court in Nyeri was reported to have reduced the 21-year jail term handed to Joseph Kariuki Gachanja to 14 years. Gachanja was found guilty of sodomising a mentally ill boy on 03 September 2012 [R2.5].

On 09 September 2016, Justice Byram Ongaya in the Employment and Labour Relations Court at Nyeri ordered the Anglican Church of Kenya (ACK) to reinstate Archdeacon John Njogu Gachau, the Rev James Maina Maigua and the Rev Paul Mwangi Warui, three clergy kicked out of the church on allegations of homosexuality, finding the dismissal from the church was unfair [R2.4].

On 16 June 2016, it was reported that Justice Anyara Emukule in the High Court at Mombasa dismissed the petition of Caleb Omar Idris and George Maina Njeri on grounds that it had no merit since the petitioners had consented to the medical examination. The men challenged the constitutionality of undergoing an anal examination as proof of being gay [C2.3], [R2.2].

On 15 April 2016, Eric Gitari, head of the National Gay and Lesbian Human Rights Commission, petitioned the High Court seeking an order striking out the "carnal knowledge" sections of the Penal Code criminalising gay sex, alledging the law violates constitutional rights to equality, dignity and privacy. A hearing is expected in October [R2.1].

R1.2 ILGA: State-Sponsored Homophobia PDF 380.51kb, MAY 11
365gay.com: Same-Sex Handholding Now Illegal in Zimbabwe 17 JUL 06
ILGA: Annual Report 1996 - Part II 1996
R1.1 PinkNews.co.uk: Kenyan police release gay men 18 FEB 10
2. Courts & Tribunals
R2.5 DailyNation: Nyeri court reduces jail term for man convicted of sodomy
R2.4 StandardDigital: Relief for three clerics in gay row as court orders ACK to reinstate them 10 SEP 16
C2.3 Judgment: C O L & another v Resident Magistrate - Kwale Court & 4 others [2016] eKLR PDF 51.31kb 16 JUN 16
R2.2 NairobiNews: Mombasa court declares anal tests for homosexuals legal 16 JUN 16
R2.1 TheSydneyMorningHerald: Petition filed in Kenya's High Court to decriminalise gay sex 16 APR 16
Marriage Legislation/Cases/References
See also: [ESTATES, PROPERTY]
1.

National

Constitution of Kenya (enacted on 27 August 2010) [L1.2]

The Bill of Rights

Part 2 – Rights and fundamental freedoms

45 – Family

(2) Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties (emphasis added).


On 12 February 2010, five men, aged between 20 and 23, suspected of being gay have been arrested in Kenya after local people protested over a planned gay wedding [R1.1].

2.

Courts & Tribunals

On 18 October 2011, Judge Maureen Odero the High Court of Kenya in Mombasa upheld the decision of Justice Jackson Ojwang that recognised the validity of a traditional Nandi woman-to-woman marriage [C2.2], [R2.1].

L1.2 Parliament of the Republic of Kenya: Constitution of Kenya 480.36kb, PDF 06 MAY 10
R1.1 PinkNews.co.uk: Five men arrested in Kenya over gay wedding plans 12 FEB 10
C2.2 KenyaLaw: Monica Jesang Katam v Jackson Chepkwony & another [2011] eKLR PDF 152.17kb, 17 JUN 11
R2.1 Care2: Traditional Same-Sex Marriage Approved by Kenyan Court 28 OCT 11

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