Eric Gitari & others v. Attorney General Kenya (2019)

On Friday 24 May 2019, the High Court of Kenya held that Sections 162 and 165 of the Penal Code 1930 – which criminalise “carnal knowledge… against the order of nature” and “gross indecency” between men respectively – are not unconstitutional. In particular, the Court found no violations of equality before the law, the prohibition of discrimination, freedom of conscience, religion, belief and opinion, freedom and security of the person, the right to fair trial, the right to health, the right to privacy and the right to dignity. The court outlined the substantial comparative jurisprudence that recognises the unconstitutionality of criminalising private, consensual same-sex intimacy but determined that “however persuasive these decisions may be, they are not binding to this court.” The judgment is contrary to international and comparative law and is under appeal.