R.M v ATTORNEY GENERAL & 4 others [2010] eKLR 90. It was submitted further that before deciding the issues that have been raised by the petitioner in the amended petition this Court must of necessity, interrogate the criminal process that led to the petitioner’s incarceration in Kitui Criminal Case No. 1146 of 2005. It was noted that during that trial, the petitioner did not raise any objection to the fact that he was defined as a male, nor did the petitioner produce his Birth Certificate in the criminal proceedings or before this court. In fact it was admitted by counsel for the petitioner that the petitioner has never applied for either a Birth Certificate or a national identity card. It was argued that unfounded fear cannot form the basis of a claim for constitutional redress where no effort has been made to comply with the law. Counsel also took issue with the petitioner’s failure to enjoin his parents in these proceedings as this suggested that the petitioner has no objection to the gender assigned to him by his parents. It was maintained that the petitioner totally failed to lay any evidence before this Court to show that he raised any objection with 4th respondent to his gender classification. 91. Regarding the wider public policy concerns, it was submitted that the petitioner has not placed evidence before this court to show the cultural considerations in his Kamba society concerning cases of intersex persons. This was particularly important in light of the averment by the petitioner’s mother in her affidavit dated 30th March, 2010, that she has never seen an intersex child in her life as a midwife. The court was urged to note that each of the 42 tribes in Kenya may have its own specific customary attitudes towards hermaphrodites. Thus, it would not be safe for this court to make any generalizations on how intersex persons are to be treated. Nor should the petitioner be allowed to impose his views on hermaphrodites in Kamba community to which the petitioner belongs, to the rest of Kenyan society. 92. On the issue of marriage, it was submitted that this was an extraneous matter which the court should not entertain. It was further pointed out that the issue was never raised before the subordinate court adjudicating on the petitioner’s criminal case. Counsel added that the petitioner is not deserving of the orders sought because he has not shown that he suffered any disability that would entitle him to the orders. In particular, it was submitted that the petitioner has not demonstrated to this court: – (i) that he was denied liberty and freedom of movement being enjoyed by other prisoners; or (ii) that he was being treated with any indignity while on death row at Kamiti Maximum Prison; or (iii) (iv) that his freedom of association is in jeopardy; or that he is not being accorded educational facilities; or (v) that he has been deprived of food, clothing or shelter while other prisoners are enjoying these privileges; or (vi) that he has been denied any aspect of prison life otherwise accessible to other prisoners. 93. Counsel also submitted that the petitioner has not demonstrated any other infringement of his constitutional rights to warrant a grant of the orders sought. For example the petitioner has not shown that the 5th Respondent exceeded its jurisdiction during the petitioner’s criminal trial. It was argued that if there was such violation, the same would have been a ground of the appeal lodged by the petitioner in the High Court at Machakos. It was contended that all in all, the petitioner’s complaints have no basis. Moreover, the petitioner’s case is clearly distinguishable from the Dimarco Case (supra) in http://www.kenyalaw.org - Page 24/45