Supreme Court Dismisses Kaluma Petition Against LGBTQ Ruling

The Supreme Court of Kenya on Tuesday, September 12 dismissed a petition by Homa Bay Town Member of Parliament (MP) Peter Kaluma seeking to overturn its ruling that allowed LGBTQ+ members to register an NGO in Kenya.

Kaluma had moved to the country's highest court in March to challenge the ruling and how the Supreme Court characterised the term sex in the LGBTQ case.

In his application, the Azimio la Umoja legislator argued that the decision to allow LGBTQ registration was a result of an error from the judges.

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 five judges further held that it was impossible to petition a court to overturn its own decision under the circumstances, adding that in their view, Kaluma’s application fell out of the select circumstances under which the Apex Court can review its decision.

As per the judges, Kaluma’s application fell short of demonstrating that the ruling to allow registration of the LGBTQ was influenced by fraudulent activities or deceit- among other circumstances that could influence such an application. 

“The applicant has not demonstrated how his matter conforms to the specific parameters enumerated under Section 21A of the Supreme Court or in the Outa case,” the ruling read in part. 

“In our view, the application is a disguised appeal from this Court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law.” 

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”.

The highest court in the land on Friday, February 24 dismissed an appeal by the government to bar registration of a gays and lesbians lobby groups, ending an 11-year legal battle by activists seeking the official registration of an LGBTQ+ organisation in Kenya.

The ruling came amidst Kaluma's plans to criminalize homosexuality in Kenya through proposed legislation.