Supreme Court dismisses MP Peter Kaluma's petition challenging LGBTQ ruling

In his application before the Supreme Court, dated March 9, 2023, MP Kaluma asked the court to stay the orders allowing an NGO Coordination Board (listed as 1st respondent) to register members of the LGBTQ community.

The MP also contested the February 24, 2023 judgement where the court laid down the use of the word 'sex' under Article 27(4) of the Constitution to refer to ‘sexual orientation of any gender’, whether heterosexual, lesbian, gay, intersex or otherwise.

"....the Court found and decreed that the use of the word “sex” under Article 27(4) of the Constitution ‘refers also to sexual orientation of any gender, whether heterosexual, lesbian, gay, intersex or otherwise’; and that the word “including” under Article 27 (4) also comprises “freedom from discrimination based on a person’s sexual orientation,” stated the court documents.

In its ruling on Tuesday, the Supreme Court, however, dismissed all the submissions by Kaluma underscoring that the MP failed to prove in his appeal how the court had wrongfully arrived at its decision.

“The applicant has not demonstrated how his matter conforms to the specific parameters enumerated under Section 21A of the Supreme Court or in the Outa case; neither has he demonstrated to our satisfaction that the impugned Judgment was obtained by fraud or deceit, is a nullity, or that the court was misled into giving its judgment under a mistaken belief that the parties had consented thereto,” read the court documents.

“In our view, the application is a disguised appeal from this Court’s judgment and does not fall within the confines of the parameters prescribed for review by statute and applicable case law. Therefore, the application stands dismissed.”

The Apex court consequently quashed the appeal by the lawmaker citing wrong procedures in his submissions since Kaluma was not a 'party' to the initial case.

“Section 21A of the Supreme Court Act provides for the circumstances pursuant to which this Court may review its own decision on an application filed by “a party”. The Court cannot entertain an application for review of its judgment filed by an applicant who was not a party to the proceedings as this goes to the root of the matter and sanctity of the already determined suit which was contested by the parties,” read a section of the ruling.

“Consequently, we find that the applicant is not competent to seek a review of the judgment under reference.”

Kaluma has also been asked to foot all the costs in the case: “On costs, the applicant is an Advocate of the High Court of Kenya and a Member of Parliament. He ought to have known that his application was misconceived ab initio. He must consequently bear the costs thereof.”