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Richard Muasya Ruling

Richard Muasya Ruling

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Published by African Activist
Ruling on Richard Muasya, an intersex person.
Ruling on Richard Muasya, an intersex person.

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Published by: African Activist on Dec 10, 2010
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11/09/2011

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REPUBLIC OF KENYAIN THE HIGH COURT OF KENYA AT NAIROBIPETITION NO.705 OF 2007IN THE MATTER OF SECTION 84(1) OF THE CONSTITUTION OFKENYAANDIN THE MATTER OF ALLEGED CONTRAVENTION OFFUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL UNDER SECTIONS 74(1), 77(1), 82(1), (3) AND (8) OF THECONSTITUTION OF KENYA AND BREACHES OF SECTIONS 28,30, 31 AND 38 OF THE PRISONS ACT CAP 90, RULES 25(1),103 AND 104 OF THE PRISONS RULES, SECTION 2B AND 7 OF THE BIRTHS AND DEATHS REGISTRATIONACT CAP 149BETWEENRICHARD MUASYA………………............PETITIONER/APPLICANT VERSUS THE HON. ATTORNEY GENERAL………….........1
ST 
RESPONDENT (Being sued on his own behalf) THE COMMISSIONER OF PRISONS……………...2
ND
RESPONDENT  THE COMMISSIONER OF POLICE……………….3
RD
RESPONDENT  THE REGISTRAR OF BIRTHS AND DEATHS…4
 TH
RESPONDENT HON. EVANS K. MAKORI MAGISTRATE………..5
 TH
RESPONDENT AND THE KENYA HUMAN RIGHTSCOMMISSION………………………………………..1
ST 
AMICUS CURIAE THE KENYA GAY AND LESBIAN TRUST……2
ND
AMICUS CURIAEKENYA NATIONAL COMMISSION FORHUMAN RIGHTS…………………………............3
RD
AMICUS CURIAE THE LEGAL RESOURCESFOUNDATION (LRF)……………………1
ST 
INTERESTED PARTY THE CHILDREN’S RIGHTS ADVISORYDOCUMENTATION LEGAL 
 
PETITION 705.07Page
2
of 
94
 
EDUCATION FOUNDATION (CRADLE).2
ND
INTERESTED PARTYKITUO CHA SHERIA LEGAL ADVICECENTRE………………………………………3
RD
INTERESTED PARTYCENTRE FOR RIGHTS, EDUCATION ANDAWARENENSS FOR WOMEN(CREAW)………………………………………4
 TH
INTERESTED PARTYKENYA CHRISTIAN LAWYERSFELLOWSHIP………………………………5
 TH
INTERESTED PARTY J U D G M E N T INTRODUCTION
 
1.
 
 The petitioner Richard Muasya commenced theseproceedings by way of a petition filed pursuant to Rules 11 and 12of The Constitution of Kenya (Supervisory Jurisdiction andProtection of the Fundamental Rights & Freedoms of the Individual)High Court Practice and Procedure Rules L.N. No.6 of 2006. Thepetition was filed under the former Constitution of Kenya, which was repealed by the promulgation of a new Constitution on 27
th
 August, 2010. Therefore, it is important to note that referenceherein to the Constitution unless otherwise indicated refers to therepealed Constitution.
2.
 
 The respondents to the original petition were named asthe Hon. Attorney General (1
st
respondent), The Commissioner of Prisons (2
nd
respondent), The Commissioner of Police (3
rd
 respondent), and The Registrar of Births and Deaths (4
th
 respondent). As a result of subsequent applications, leave wasgranted and several other parties joined in the suit. The partiesadded were as follows: Hon. Evans K. Makori Magistrate (5
th
 respondent), The Kenya Human Rights Commission (1
st
amicus
 
PETITION 705.07Page
3
of 
94
 
curiae), The Kenya Gay and Lesbian Trust (2
nd
amicus curiae),Kenya National Commission on Human Rights (3
rd
amicus curiae), The Legal Resources Foundation (1
st
interested party), The ChildrenRights Advisory Documentation Legal Education Foundation(Cradle) (2
nd
interested party), Kituo Cha Sheria Legal Advice Centre(3
rd
interested party), Centre for Rights, Education and Awarenessfor Women (Creaw) (4
th
interested party) and Kenya ChristianLawyers Fellowship (5
th
interested party).
 THE PRAYERS SOUGHT IN THE PETITION
3.
 
By an amended petition filed on 16
th
October, 2009, withleave of the court the petitioner sought several declarations, andorders. For purposes of clarity, we reproduce the prayers hereinverbatim:
(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.

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