|Courts & Tribunals
On 28 May 2019, it was reported that Justice Abigail Mshila in Nyeri High Court again rejected an out-of-court agreement filed by a mediator in the case Rev. Paul Warui, the Rev. James Maina and Archdeacon John Gachau, three priests accused of homosexuality, noting the agreement drafted by mediator Mulama Oundo of the court-annexed mediation programme was not signed by Bishop Joseph Kaunda of Mt Kenya West Diocese or his representatives [R2.20].
On 24 May 2019, the High Court reportedly unanimously upheld the constitutionality of sections 162 (a) and (c) and section 165 of the Penal Code that criminalize same-sex relations and dismissed the case filed in 2016 by three Kenyan gay rights organisations challenging the law [C2.19], [R2.18].
On 22 March 2019, the Court of Appeal ruled 3-2 (Justices Philip Waki, Asike Makhandia and Martha Koome affirmed, Justices Daniel Musinga and Roselyn Nambuye dissented) that the government could not use colonial-era laws criminalising gay sex to block the National Gay Lesbian Human Rights Commission (NGLHRC) from being registered as a non-profit organization, upholding the April 2015 High Court judgment. The government could still appeal the decision in the Supreme Court [C2.17], [R2.16].
On 22 February 2019, the High Court reportedly postponed a ruling on whether to scrap colonial-era laws which criminalize homosexuality. The new date for the decision is set for 24 May [R2.15].
On 06 February 2019, Justice Abigail Mshila rejected the agreement purportedly settling the case of Rev. Paul Warui, the Rev. James Maina and Archdeacon John Gachau, the Anglican clergymen accused of homosexuality, saying ”For the mediation agreement to be binding, the two respondents, Bishop Kagunda and the registered trustees of the Anglican Church of Kenya, must sign in person”. The court does not know Venerable Canon Gerald Muriithi and Venerable Samuel Waweru, the two people who signed the agreement and the mediation agreement is also not dated [R2.14].
On 06 November 2018, Justice Abigail Mshila in the Nyeri High Court reportedly ordered Rev. Paul Warui, the Rev. James Maina and Archdeacon John Gachau, the Anglican clergymen accused of homosexuality, and Bishop Joseph Kagunda of the Mount Kenya West diocese, to settle their disagreement by meeting with a mutually agreed-upon mediator. In October 2017, the court, citing a lack of evidence against the three, ordered their reinstatement and redeployment and the payment of a total of 6.8 million Kenya shillings, or about $68,000, for damage to their reputations [R2.13].
On 25 October 2018, it was reported that the Kenya High Court had announced it would issue its ruling on whether to decriminalize homosexuality on 22 February 2019. Under Sections 162 and 165 of its penal code, individuals convicted of ”sexual acts against the order of nature” face up to 14 years in prison [R2.12].
On 15 May 2018, Justice Nzioki Makau in the Nyeri Law Courts reportedly fined the Anglican Church of Kenya Sh200,000 for disobeying orders to reinstate three priests who were suspended over allegations of engaging in homosexuality and directed the Registered Trustees of the ACK church to pay the fine within 48 hours for contempt of court [R2.11].
On 22 March 2018, Court of Appeal Judges Alnasir Visram, Wanjiru Karanja and Martha Koome reportedly ruled that the high court decision allowing the use of an anal examination to test whether two men had gay sex was unconstitutional and violated human rights [R2.10].
On 23 February 2018, the High Court began hearing the Eric Gitari v. The Hon. Attorney General case seeking a declaration that Sections 162 and 165 of the Penal Code, CAP 63 to be unconstitutional, and accordingly void and / or invalid to the extent that they purport to criminalise private consensual sexual conduct between adult persons of the same sex, (relevant conduct), as mandated by Articles 2 (4), and 23 (3) (d) of the Constitution [R2.9].
On 07 June 2017, the Court of Appeal ruled that Archdeacon John Njogu Gachau, Rev James Maina Maigua and Rev Paul Mwangi Warui, three Anglican clergy sacked for allegedly being gay must be reinstated, after the Church failed to produce any evidence they were homosexuals. The Court upheld an earlier ruling forcing the Anglican Church of Kenya to pay 6.8 million Kenyan shillings (£50,000) in damages and reinstall the three men, saying there was no evidence of alleged homosexuality [C2.8], [R2.7].
On 02 June 2016, the High Court at Nairobi ruled that the issue of the constitutionality of Sections 162 and 165 of the Penal Code ”are not only of public importance but are also weighty and require debate. They deserve therefore, the constitution of a bench of Judges for hearing and determination.” [R2.6]
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].