eric+njerylaughing.jpg
judgements.jpg
eric+njerylaughing.jpg

Our Wins


Click the timeline to learn about NGLHRC's legal successes

SCROLL DOWN

Our Wins


Click the timeline to learn about NGLHRC's legal successes

judgements.jpg

Court Judgements


Learn about NGLHRC's constitutional litigation 

Court Judgements


Learn about NGLHRC's constitutional litigation 

 

Building on Kenya's 2010 Constitution, which transitioned Kenya into an open and democratic society based on human dignity, equality, equity and freedom, NGLHRC has engaged in incremental litigation to make the case that the new constitution protects all citizens in Kenya regardless of their sexual orientation and gender identity. 

 

** Download or read a copy of our Case Digest, current through March 1, 2017 here.

The following cases are all active at various courts in Kenya:

Petition 440 of 2013: Freedom of Association under article 36 of the Constitution of Kenya

This case regards the registration of NGLHRC as a non profit organisation, which had been denied by the government of Kenya. In April 2015, a three judge bench of the Constitutional Division of the High Court in Nairobi unanimously ruled that sexual orientation is protected from discrimination in the constitution of Kenya and ordered that NGLHRC be registered. The court further found that gays and lesbians are persons guaranteed of equal constitutional protection like every other Kenyan.

LATEST UPDATE: The NGO Coordination Board has since appealed against the judgment. Hearings are ongoing at the Court of Appeal. The matter has been set for hearing on the 27th of July 2017. 


Petition 51 of 2015: Freedom from Cruel, Inhuman and Degrading Treatment Under Article 25 of the Constitution of Kenya

This case regards a February 2015 incident involving our clients in Kwale County. Acting upon rumours that our clients might be gay, state police arrested two of our clients on suspicion that they might have engaged in 'carnal knowledge against the order of nature and indecent acts between adults' (in violation of the Sexual Offences Act of the Laws of Kenya). The two were subjected to forced HIV testing and anal examination under a magistrates order to ascertain whether they might have engaged in anal sex-consensually and in private on dates not known. They were later charged with 'carnal knowledge against the order of nature and indecent acts between adults'.

This Petition sought to question whether it was constitutional to subject the two males to anal examination and whether the results of the examination can be admitted as evidence when constitutional rights to dignity, fair trial, et cetera were breached in acquiring that evidence.

The Court ruled that the use of anal testing to determine sexual orientation was in line with the law of the land and hence the evidence was constitutional.

  • Read the Judgment here

LATEST UPDATE: NGLHRC has since appealed this discriminatory judgment. The case was mentioned on February 13th 2017 and was set for hearing at the Court of Appeal in Mombasa on March 29th 2017 before a single appellate judge.  When the case came up for hearing on March 29th, the Attorney General (AG) and Director of Public Prosecutions (DPP) refused to proceed asking for more time to file their submissions. The Appellate court gave them 14 days to do so. 


Petition 150 of 2016. Equality and Non Discrimination under article 27 of the Constitution

This case challenges the sections 162 (a) and (c), 163 and 165 of the Penal Code of Kenya which outlaw 'carnal knowledge against the order of nature and indecent acts between males whether in public or private'.

  • Read the Penal Code of Kenya here
  • Read the Constitution of Kenya here

NGLHRC has noted that sections 162 (a), (c), 163 and 165 of the Penal Code continue to be used to justify and excuse discrimination and violence towards persons on account of their real or perceived sexual orientation and gender identity and expression. This is against Chapter Four of the Constitution of Kenya. NGLHRC has gone to court with six human rights defenders (the petitioners), the Kenya National Commission on Human Rights and Katiba Institute to resolve this conflict of laws.

LATEST UPDATE: The petition should have been heard on December 6th, 2016 but the sitting judge received a promotion to the Supreme Court. We await reconstitution of the bench. As of March 14th, 2017 the NGLHRC has written four letters to the office of the Chief Justice requesting direction on the matter. No response has been issued as yet.