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R.M v ATTORNEY GENERAL & 4 others [2010] eKLR amicus curiae), The Kenya Gay and Lesbian Trust (2nd amicus curiae), Kenya National Commission on Human Rights (3rd amicus curiae), The Legal Resources Foundation (1st interested party), The Children Rights Advisory Documentation Legal Education Foundation (Cradle) (2nd interested party), Kituo Cha Sheria Legal Advice Centre (3rd interested party), Centre for Rights, Education and Awareness for Women (Creaw) (4th interested party) and Kenya Christian Lawyers Fellowship (5th interested party). THE PRAYERS SOUGHT IN THE PETITION 3. By an amended petition filed on 16th October, 2009, with leave of the court the petitioner sought several declarations, and orders. For purposes of clarity, we reproduce the prayers herein verbatim: (a) A declaration that the petitioner was not afforded a fair hearing as provided for under section 77 (1) of the Constitution since your humble petitioner’s detention at Kitui Police Station, Kitui Prison and Kamiti Main prison were and are illegal in so far as The Prisons Act Cap.90 does not provide for where hermaphrodites intersexuals should be remanded or handled and, (b) A declaration that upon being convicted with the offence of robbery with violence then the petitioner should be acquitted on the ground of intersexuality. (c) A declaration that detaining your humble petitioner at Kitui police station all through the trial was illegal and unconstitutional since the petitioner was facing a capital offence. (d) A declaration that the petitioner has been discriminated upon on the ground of sex which is inconsistent with section 82(1) (3) & (8) of the Constitution of Kenya and or on the basis of status. (e) A declaration that section 2b and 7 of the Births and Deaths Registration Act (Cap. 149) is inconsistent with section 82 of the Constitution in so far as the same offends the principal of equality and non-discrimination. (f) An unconditional acquittal and; (g) A declaration that as an intersexual, your humble petitioner and intersexuals in Kenya have suffered, are suffering and continue to suffer lack of legal recognition and protection, under the Kenyan statutes; http://www.kenyalaw.org - Page 3/45

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Petition No. 705 of 2007 ... between R.M. (petitioner/applicant) versus the Hon. Attorney General (1st Respondent) et al.

Cases

Country

Latitude: -1.303208

Longitude: 36.777356712

Country (linked Cases): Kenya

Court: Kenya: High Court, Kenya

Date of judgement: Dec 2, 2010

Complainant: R.M.

Articles alleged: Constitution of Kenya, sections 74(1) 77(1) 82(1) (3) and (8); Prisons Act, sections 28 30 31 and 38; Prison Rules 25(1) 103 and 104; Births and Deaths Registration, sections 2B and 7

Articles violated: Constitution of Kenya, section 74(1)

Keywords

Cruel, inhuman or degrading treatment
Detention
Discrimination
Prisons
Sexual orientation and gender identity

Gender of victim

Male: Man (18+)

Gender of accused/perpetrator

Gender not specified

Language: English

Summary: The petitioner commenced these proceedings by way of a petition filed pursuant to Rules 11 and 12 of The Constitution of Kenya (Supervisory Jurisdiction and Protection of the Fundamental Rights & Freedoms of the Individual) High Court Practice and Procedure Rules L.N. No.6 of 2006. The petition was filed under the former Constitution of Kenya, which was repealed by the promulgation of a new Constitution on 27th August, 2010. The petitioner was born with both male and female genitalia. Due to his ambiguous gender the petitioner was unable to secure a birth certificate, identity card, or any travel documents. The petitioner dropped out of school at Class 3. He became secluded and ended up in conflict with the law, being charged with an offence of robbery with violence. The petitioner was tried, convicted and sentenced to death for robbery with violence and committed to Kamiti Maximum Prison for male death row convicts. Contrary to the Prisons Act, the petitioner was made to share cells, beddings and sanitary facilities with male inmates, and was exposed to constant abuse, mockery, ridicule and inhuman treatment. He was also sexually molested by curious male inmates. The petitioner claimed that his dignity as a human being and his fundamental rights against inhuman treatment, discrimination on grounds of sex, and rights to freedom of association, freedom of movement, right to fair hearing and protection under the law were violated. He therefore filed this petition seeking appropriate redress. The petition is dismissed except for prayer (q): the petitioner’s right to protection against inhuman and degrading treatment has been violated. The petitioner is awarded damages of Kshs. 500.000/=. In view of the ambiguity surrounding the sex of the petitioner the order for the petitioner to be held in separate and exclusive accommodation from other male convicts will continue to remain in force.

Primary Documents

Kenya-case-High Court-Nairobi-RM-Petition 705 of 2007-2010-eng.pdf
English
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Kenya-cas-Haute Cour de Nairobi-R.M.-Petition 705 de 2007-2010-fr.pdf
French
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Petition No. 705 of 2007 ... between R.M. (petitioner/applicant) versus the Hon. Attorney General (1st Respondent) et al.

Primary Documents

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