R.M v ATTORNEY GENERAL & 4 others [2010] eKLR legal recognition. Finally, it was stated that the petitioner having been charged with an offence known in law, tried and convicted after due process, with the necessary constitutional safeguards, he could not now be acquitted merely because he is an intersexual. 12. The 5th interested party who also opposed the petition responded to the petition through a lengthy replying affidavit sworn by its Executive Officer one Joyce Kabaki. The replying affidavit is substantially argumentative and raises issues of law which would be best dealt with as submissions. The only clear fact that comes out from the replying affidavit is that the deponent visited the petitioner at Kamiti Maximum Prison. During the visit the petitioner explained to the deponent that a day after he was remanded at Kitui Prison to await his criminal trial, an order was made by the magistrate for the petitioner to be remanded at Kitui Police Station, where arrangements were made for the petitioner to be held in his own cell, without being mixed with the male or female remandees or suspects. 13. Joyce Kabaki also swore that the petitioner indicated during the interaction that although he was currently held at Kamiti Maximum Prison, he was comfortable as he was being held in an isolation area, where he has his own bed and room. The petitioner also indicated to the deponent that he did not face any mistreatment at Kitui Police Station where he was remanded. The petitioner denied having been sexually molested by other inmates at Kamiti Prison or facing any threat of sexual harassment due to his condition. Finally, as a result of the interaction, the deponent formed the impression that the petitioner came to terms with his physiological condition early in life. This was not consistent with the petitioner’s claim that his social development demented on account of his condition. THE HEARING OF THE PETITION 14. On 9th July, 2010, The Chief Justice nominated us to hear this petition. Hearing of the petition proceeded from 12th July, 2010 to 15th July, 2010. All the parties filed written submissions which were duly highlighted before us during the hearing of the petition. Authorities relied upon were also availed to us. For purposes of convenience, we shall briefly set out these submissions in two categories: Firstly, we shall set out the submissions which were in favour of the petition. These were submissions made by the petitioner, the 1st to 4th interested parties and 1st to 3rd amicus curiae. Secondly, will be the submissions opposing the petition. These were made by the 1st to 5th respondents, and the 5th interested party. A. ARGUMENTS IN FAVOUR OF THE PETITION: Petitioner’s Submissions 15. Mr. Chigiti who argued the petition on behalf of the petitioner, submitted that the petitioner being a person who because of a genetic condition was born with reproductive organs or chromosomes that were not exclusively male or female is an intersexual. Noting that there was no legal definition of an intersex in Kenyan Law, he referred the court to the definition in “The Judicial Matters Amendment Bill, 2005 of South Africa,” which proposed to amend the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA), by introducing a definition of intersex as follows: Intersex means congenital physical sexual differentiation which is atypical to whatever degree. This definition is already included in Section 1of the South African “Alteration of Sex Description and Sex Status Act No.49 of 2003.” Reference was also made to “The Legislation Act 2001” of Australia, which defines an http://www.kenyalaw.org - Page 7/45