R.M v ATTORNEY GENERAL & 4 others [2010] eKLR
applicants were found to have locus standi after establishing that they were members of the Il Chamus
community, a unique, cohesive, and minority group comprising of about thirty thousand persons.
113.
In this case, other than talking generally about intersex persons, the petitioner has not
identified even a single other intersex person. Several parties applied and were joined to this suit either
as amicus curiae or interested parties. The impression created was that the petitioner’s suit raised
issues of public interest such that the presence of the additional parties was necessary in providing
appropriate information that would enable the court deal with the issues comprehensively.
114.
In seeking to be enjoined to the suit, the 2nd amicus Trustee, David Kuria, swore an affidavit
th
on 25 May, 2009, in which he deponed that during the course of his duties, he has encountered
intersexual persons whose plight is similar to that of the petitioner. Nevertheless, no further affidavit was
sworn on behalf of the 2nd amicus curiae giving any facts in regard to this contention, nor did the 2nd
amicus curiae identify any other intersex persons.
115.
Likewise, the 3rd amicus curiae, in convincing the court to have it joined to the suit, had an
affidavit sworn by its secretary one Mburu Gitu stating that it will bring to the court vital and valuable
information regarding persons born as intersexuals and the human rights violation they face. Having
been joined in the suit, no further affidavit was sworn on behalf of the 3rd amicus curiae bringing before
the court any facts regarding the presence of intersex persons in this country or the alleged violation of
their rights.
116.
The 1st interested party similarly made general references with regard to the violation of the
rights of intersexual persons in Kenya. The affidavits sworn by 1st interested party’s executive director
Jedidah Wakonyo Waruhiu did not make reference to any intersexual in Kenya other that the
petitioner. Gilbert Oduor Onyango, Deputy Director of the 2nd interested party, also swore an affidavit
urging the court to have the 2nd interested party joined in the suit, stating that during the course of his
duties he had encountered intersexual minors whose plight is similar to that of the petitioner. The deputy
director swore that his organization had received instructions from guardians or parents of minor
intersexuals to highlight the plight of the minor intersexuals. Again no affidavit was sworn or information
laid before the court by the 2nd interested party regarding the incidence or prevalence of intersex births in
the country.
117.
Thus, there is no empirical data or indeed any other facts before us upon which we can
conclude that there is a body of persons known as intersex persons. Nor, is there any information upon
which this court can conclude that the issues raised with regard to intersex persons, is something in
which the society as a whole has an interest that warrants recognition. It is true that the intersex birth is
an unusual occurrence which attracts public curiosity. However, such public curiosity can only graduate
to public interest with empirical data confirming that the prevalence of intersex birth in this country is of
such magnitude as to call for government regulation or intervention.
118.
Therefore, we are not persuaded that there is a definite number of intersex persons in Kenya
as to form a class or body of persons in respect of whose interest the petitioner can bring a
representative suit, nor are we persuaded that the suit before us is a public interest litigation such as to
justify the petitioner bringing a representative suit. We find that the petitioner’s condition is a rare
phenomenon in this country. His case must be treated as an isolated case in respect of which we are
concerned with the rights of the particular individual before us. Consequently, the reference in the
amended petition to other intersexuals and violation of rights of those other intersexuals shall be struck
out.
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