- The judges 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 court also said Kaluma was not competent to seek the review as he was not a party to the proceedings of the case.
Image: THE STAR
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.
Another circumstance is if the judgment, ruling or order was rendered on the basis of repealed law or as a result of a deliberate concealment of a statutory provision.
"The applicant has not demonstrated how this matter conforms to the specific parameters enumerated under Section 21A of the Supreme Court Act," the court said.
The court also said Kaluma was not competent to seek the review as he was not a party to the proceedings of the case.
His case, the court ruled, goes to the root of the sanctity of the already determined suit which was contested by the parties.
The judges noted that as an Advocate of the High Court and an MP, Kaluma should have been aware that his application was "misconceived".
The MP had filed an application seeking to review and set aside the judgement delivered on February 24, 2023, decreeing that the LGBTQ Community has a right to freedom of association.
He had also asked the apex court to review its decision on the definition of sex.
The court had ruled that 'sex' under Article 27(4) of the Constitution also referred to sexual orientation of any gender, whether heterosexual or a member of the Lesbians, Bisexuals, Gays, Transgender and Queer community.
Image: FILE
Article 27(4) states that "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".
He had argued that the judgement had usurped the power of Kenyans, the legislative role and the authority of Parliament and purported to amend the aforesaid article.
"The application is premised inter alia, on the following grounds: that the Court disregarded the views of the people of Kenya on 'sex' and 'gender' contained in the Final Report of the Constitution of Kenya Review Commission, that the decision has opened the door wide to registration of associations, entities, organisations whose naming and or objects are contrary to the law and inconsistent with public interest and that there is widespread discontent, uproar, dissent and displeasure with the judgment by the general public as reported across all mainstream media and social media platforms," the court document reads further.
Opposing the application, Eric Gitari said it lacked merit because Kaluma lacked legal standing as he was not a party to the proceedings.
In his application, Kaluma cited international instruments to support his case.
They included the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples Rights, the Yogyakarta principles and Yogyakarta+10.
He had listed respondents as NGO Co-ordination Board, Eric Gitari, the Attorney General, Audrey Mbugua Ithibu, Daniel Kandie and Kenya Christian Professional Forum.
Katiba Institute had been listed as Amicus Curiae (Friend/ Adviser of the Court).