R.M v ATTORNEY GENERAL & 4 others [2010] eKLR (xv) Whether the petitioner has suffered violation of his fundamental right to freedom of movement enshrined in Section 81 of the Constitution, and whether as a result thereof, the petitioner stands the risk of arbitrary deportation. (xvi) Whether the petitioner has suffered violation of his fundamental right to freedom of association provided under Section 80 of the Constitution. (xvii) Whether the Government has failed to ensure statutory guarantee, protection and facilities to cater for the petitioner and other intersex persons. (xviii) Whether the petitioner’s conviction should be quashed on account of his intersex status. (xix) If the answer to any of the above is yes, whether the petitioner is entitled to an award of general damages. (xx) Finally, who should be liable to pay costs? COMPETENCE OF PETITION 97. The petitioner has moved this court under Section 84 of the Constitution as read with Rules 11 and 12 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of the Fundamental Rights and Freedom of the individual) High Court Practice and Procedure Rules. In bringing this application, the petitioner has not come to this court under Order LIII of the Civil Procedure Rules nor has he invoked this court’s powers of judicial review. Indeed the petitioner has not sought orders of mandamus, certiorari or prohibition which are the kingpin of the remedy of judicial review. 98. We are alive to the fact that issues have arisen regarding the treatment of the petitioner at the Kitui police station, the Kitui Magistrate’s Court, and the Kamiti Prisons. Nevertheless, the petitioner is not questioning the powers of the respective authorities, nor is he alleging breach of natural justice. These are the grounds upon which an application for Judicial Review must be anchored. In the absence of such grounds Order LIII of the Civil Procedure Rules cannot apply. The gravamen of the petition before us is that the petitioner has been denied legal recognition and that his fundamental rights have been breached. Those are issues that can only be dealt with by this court in exercise of its interpretative function as per its original jurisdiction (conferred by Section 60 of the Constitution), and its supervisory and enforcement jurisdiction as conferred by Section 84 of the Constitution. Moreover, the only prayer in the petition before us, which can lie in an application for judicial review, is prayer (f) which http://www.kenyalaw.org - Page 27/45