R.M v ATTORNEY GENERAL & 4 others [2010] eKLR 85. On the petitioner’s attempt to speak for “other intersexuals” as per the amended petition, it was noted that the court was not provided with reliable medical or statistical data or medical overview of the intersexual phenomena in Kenya. In the absence of such vital statistical information from medical experts, the court was placed in a difficult situation. Nor was the court provided with the information concerning the chromosomal structure of the petitioner or whether the petitioner had sought any alternative relief. It was argued that in the circumstances, the position taken by the petitioner as the voice of those other unidentified intersexuals could not succeed. 86. With regard to the petitioner’s claims relating to specific statutory provisions, it was submitted that under the Births and Deaths Registration Act, Cap 149 Laws of Kenya, amendment of a birth certificate is permissible and that in the circumstances, nothing would have stopped the petitioner from seeking a Court Order to rectify a birth certificate. It was maintained that the petitioner had not demonstrated that he had made such efforts. On the Children’s Act, it was submitted that whereas Part II of the Children’s Act recognizes the rights of children, each case that comes before the court must be treated on its own merit. It was argued that the court cannot by means of these proceedings open lacunae for exploitation by homosexuals who may wish to declassify themselves from one gender to the other, to justify their immorality. 87. As regards the provisions of The Prisons Act Cap 90, which were faulted by the petitioner as denying him legal recognition, it was argued that The Prisons Act, provides adequate remedy to any prisoner who, with adequate and legitimate reasons, perceives that his rights are violated, to lodge a complaint with the prison authorities. In response to the submissions by counsel for the petitioner that blood was extracted from the petitioner allegedly without the petitioner’s consent and for unknown reasons, it was submitted that neither the petitioner nor his advocate objected to the extraction. It was further submitted that the petitioner had every opportunity prior to his incarceration to ventilate any complaint that he may have had. It was maintained that this court was not the proper forum to deal with the issues raised by the petitioner in his amended petition filed in court on 16th October, 2009. 88. Further, it was submitted that section 89(5) of the Criminal Procedure Code, Cap 75 Laws of Kenya, avails the petitioner the opportunity to truncate criminal proceedings well before the inception of the Charge Sheet based on a legal misdescription of the suspect or such other grounds as may be raised. The petitioner also had an opportunity after conviction to mitigate by letting the court know of his plight before sentence. It was reiterated that the complaints posed by the petitioner against the various statutes, and the declarations and the interventions sought, have been placed before the wrong forum. The fact that the criminal process against the petitioner was fair, can be gleaned from the joint replying affidavit sworn by the respondents on 15th October, 2009, confirming that the criminal trial in the Kitui case was meticulously considerate of the petitioner’s unique position, and that the decision to keep the petitioner in isolation was for the petitioner’s own safety. 89. In this regard, reliance was placed on the appeal from the united States District Court from the District of Wyoming in the matter of the Estate of Miki Ann Di Marco wherein at page 6 it is stated: “In rejecting Di Marco’s equal protection claim, the court first determined that “individuals born with ambiguous gender” are not members of quasi-suspect or constitutionally protected class, and that Di Marco was not denied a fundamental right. Applying the rational basis review, the court found no equal protection violation, “because Defendant’s actions in placing Plaintiff in segregated confinement was rationally related to the legitimate purposes of ensuring safety of the Plaintiff and other inmates and security of the facility.” http://www.kenyalaw.org - Page 23/45