By Sam Alfan.
The hearing of an appeal challenging sections of the pensl code that criminalises homesexuality in Kenya was postponed despite protestatuons from Murang’a governor Irungu Kangata.
A five-judge bench of the Court of Appeal allowed the adjournment of the case after the petitioner Eric Gitari said he was having a mental breakdown.
The Muranga county boss through lawyer Harrison Kinyanjui, protested the application by Gitari’s lawyer Sande Ligunya, to push the hearing to a later date, despite all parties expressing readiness to proceed with the hearing.
Ligunya had informed Justices Francis Tuiyot, Pauline Nyamweya, Lydia Achode, Abida Ali Aroni and Weldon Korir that Eric Gitari, had been unable to attend the hearing because of a mental breakdown, which he has allegedly suffered since August 2025.
Lawyer Kinyanjui argued that an indefinite adjournment was unfair to the Murang’a Governor and the public at large, who want the appellate court to dismiss the appeal.
“A 2019 appeal is not one that we should be adjourning in the year 2026, given the grave public interest in the proceedings. The age of this particular appeal does not speak well of delays in the administration of justice and the determination of pending cases before the Court of Appeal,” he stated.
Gitari, the Director of the National Gay and Lesbian Rights Commission, wants Sections 162 and 165 of the Penal Code in Kenya declared illegal.
He contends that the sections are discriminatory, and violate various provisions of the Kenyan Constitution.
Kinyanjui insisted that the application was ill-timed, and lacked good faith altogether, given the enormous national and public interest the case has attracted.
Addressing the appellate Judges, Kinyanjui said the matter has been pending in court for the last six years.
“With respect, this application is made in bad faith and the reason being proffered now was not mentioned even in passing, when this matter was last adjourned barely forty days have ago,” Kinyanjui told the appellate judges.
Lawyer Kinyanjui added that medical issue of the appellant never arose.We were not informed that the mental condition of the appellant and his receipt of medication is such that it would preempt his participation in the proceedings,” he submitted.
“This is a surprise to my client, because if I heard right, Ms Ligunya said that her client suffered a mental breakdown in August last year. That is the context of the bad faith”, Kinyanjui told the court,” lawyer Kinyanjui said
Kang’ata maintains that the High Court, considered the evidence and correctly dismissed the petition.
Kang’ata also faulted Gitari for by-passing Parliament, arguing that the legislative sovereignty of the Kenvan people is vested in Parliament under Article 94
“If the appellants’ arguments were to be accepted, theoretically, where do we draw the line in embracing homosexuality as an innate “human right”? How about pedophiles, will the same inclinations not be held as innate to they who harm and sexually exploit the helpless children? How about rape, will not rapists assert and claim to be imbued with “innate” rapist tendencies that ought to be given free range in expression? Will rapists not posit the exact same arguments, making similar allegations as posited the appellant to justify the decriminalization of rape? “? he added.
He further told court that the appeal by Gitari lacks merit and should be dismissed with costs.
On stigma, Kinyanjui submitted that the alleged stigmatization of conduct by the larger society cannot be legislated away through a court judgment. He pointed that courts lack power to regulate social attitudes.
“Stigmatization of any conduct by Society, let alone homosexual conduct cannot be legislated; and conversely, the Constitutional Court’s and indeed this Honourable Court’s hands are tied to stem, or eliminate such stigmatization”, he submitted.
The appeal stems from consolidated Constitutional petitions filed in 2016, in which petitioners sought to invalidate the Penal Code provisions criminalising homosexuality in Kenya.
While adjourning the case, the court directed that a medical report on the health status of Gitari be filed by April 15, 2026 due to the great public interest in the case.
“We direct that the medical report in respect of the health status of the appellant be filed by 15th April, 2026.We further direct that in view of the old age of this matter and the concern by all counsel that this matter which is of grave public interest be determined once and for all. We direct that the matter shall be heard on a date in May of 2026 that shall be communicated by the registry to the parties”, Judge Tuiyot directed.
Further, the Court issued a stern warning to Gitari’s lawyer over delays in filing critical documents.
“We must say, Ms. Ligunya, that in future you need to inform your colleagues on time when you have to make an application of this nature and provide some succinct evidence of your client’s illness or the reasons for seeking an adjournment,” the judges added.
