R.M v ATTORNEY GENERAL & 4 others [2010] eKLR valid marriage. Our finding that the petitioner is in fact capable of being classified in one of these two categories albeit with difficulties, defeats the petitioner’s argument. 138. Further we have come across several decisions from other jurisdictions dealing with issues of determination of sex for purposes of marriage. The issue of factors to be taken into account in determining the sex of a person was addressed in Corbett vs Corbett (supra) where Ormrod J. laid out the test for determination of the sex of a person for the purpose of marriage as chromosomal factors, gonadal factors i.e presence or absence of testes or ovaries and genital factors including internal sex organs. These parameters were expanded further in Bellinger vs Bellinger (supra) to include physiological factors, hormonal factors and secondary sexual characteristics such as distribution of hair, breast development, physique etc. We have also taken note of Re Kevin (2001) FamCA, an Australian decision in which Chisholm J. stated as follows: “To determine a person’s sex for the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person’s biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person’s life experiences, including the sex in which he or she was brought up and the person’s attitude to it; the person’s self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment treatments the person has undergone, and the consequences of such treatment; and the person’s biological, psychological and physical characteristics at the time of the marriage….” 139. In the case of the petitioner although the petitioner’s counsel applied and the court granted an order which was issued on 4th November, 2008, for the petitioner to be examined by a team of doctors, there is nothing on record to confirm whether the petitioner was examined, and if so the result of such examination. Therefore the court is only left with the report of Dr. Nyakeri which as we have already mentioned in paragraphs 112 and 113 of this judgment, is inadequate. We are handicapped by this paucity of medical and scientific evidence on the petitioner because we have no conclusive evidence on any of the 6 parameters mentioned in Bellinger vs Bellinger (supra). It follows that we are unable to conclusively determine, whether the results of a test using the parameters laid out in Corbett vs Corbett (supra) and Bellinger vs Bellinger (supra) would be consistent with the assigning of the male gender to the petitioner, by his mother. The issue of determination of the petitioner’s sex is particularly important in light of the fact that same sex marriages are outlawed in this country. 140. Be that as it may, although the report of Dr. Nyakeri shows that the petitioner leans towards male hermaphroditism, the report shows that the petitioner’s penis is undeveloped and testes are absent. What this means is that the petitioner is essentially incapable of consummating a marriage as a man. This has been confirmed by the petitioner’s mother and grandmother who depone that the petitioner’s attempt to get a wife were all unsuccessful as the women he attempted to marry could not live with the petitioner’s inability to consummate the marriage. From the legal, cultural and religious standpoint in this country, the joining together of a man and a woman in marriage is underpinned by the consummation of marriage through coitus. 141. Thus in this case the petitioner has not been denied the right to marry nor is he precluded from entering into a valid marriage by virtue of his intersex status. The petitioner is limited by nature as he does not have the ability to consummate the marriage. His handicap is biological rather than legal. http://www.kenyalaw.org - Page 36/45