Why court postponed ruling on gay sex to May 24

Kenyans will wait for 91 days to know the fate of gay marriages. 

On Friday, Justice Chacha Mwita moved the widely anticipated ruling to the morning of May 24 as the decision was not ready.

He said some of the judges in the case were busy. He added that the challenge also involved the huge volumes of files sent to the three-judge bench in soft copy.

“You may not like the news I have today, we have worked so hard to deliver the judgment but is not ready due to the challenges we are facing. We are also sitting in other benches which consume our time but we will endeavour to have the decision in May,” said Mwita as he apologised on behalf of the bench to the packed courtroom.

The case seeking to abolish laws that criminalise homosexual behaviour was filed by the National Gay and Lesbian Human Rights Commission, and the Gay and Lesbian Coalition of Kenya.

The group wants section 162 and 165 of the Kenyan penal code scrapped off arguing it validates stigma, discrimination and violence towards LGBTQ+ persons.

Currently, people convicted of gay sex face up to 14 years in prison.

The Kenyan constitution, however, provides explicit protection against discrimination on the basis of sexual orientation and gender identity.

This does not extend to gay sex as Section 162 of the Kenyan Penal Code marks gay sex or “carnal knowledge against the order of nature” as a punishable felony.

Section 165 of the same also outlaws any gross indecency, and one faces jail for up to five years. 


Even as the campaign against discrimination against same-sex relations intensifies among Lesbian, gay, bisexual, and transgender (LGBT) activists, their push has been countered by a section of religious leaders who want their case dismissed.

Same-sex relationships are illegal in more than 70 countries in the world, almost half of them in Africa, where homosexuality is broadly taboo and prosecution is rife.

According to a 2017 report by The International Lesbian, Gay, Bisexual, Trans and Intersex Association (LLGA), homosexuality could still result in the death penalty in eight nations. 

South Africa was the first country in Africa to legalize same-sex in 2006.

Recently across the world, India's Supreme Court overturned a 2013 judgement that upheld a colonial-era law, known as section 377, under which gay sex is categorised as an "unnatural offence".

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