Kaluma to pay lobby group Sh500,000 for challenging LGBTQ ruling

Homa Bay Town MP Peter Kaluma will pay a lobby group Sh500,000 for challenging the Supreme Court's ruling to allow gays and lesbians to have an association.

In a recent ruling, the Supreme Court declined to set aside its earlier ruling and ordered the lawmaker to pay the amount to Eric Gitari, the former Executive Director of the National Gay and Lesbian Human Rights Commission (NGLHRC), after finding that he filed late his review application for challenging the registration of the association recognising Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ+) community in Kenya.

Five apex court Judges led by Deputy Chief Justice Philomena Mwilu rejected a plea by MP Kaluma to challenge the deputy Registrar's decision to assess the costs of the appeal he lost on September 12, 2023, allowing registration of the LGBTQ+ association.

The court wants Kaluma to pay Gitari Sh500,000 for time wasted and expenses incurred during the hearing of his review suit. Additionally, the lawmaker will be required to pay Sh200,000 the cost of the appeal.

While throwing out the MP's appeal, the five judges faulted Kaluma for filing his application out of the stipulated timelines.

"The applicant (Kaluma) has not provided a good reason for not challenging the deputy Registrar’s ruling within the statutory timelines. Further, the applicant has not met any of the conditions to convince this court to exercise its discretion in his favour," the Supreme Court Judges ruled.

Kaluma had approached the apex court on January 10, 2024, disputing the deputy Registrar's decision to assess the costs of the appeal and order to pay Gitari.

He argued that he was not served with a ruling notice by the Deputy Registrar and only found out about the decision when Gitari’s lawyer texted him demanding Sh500,000 when the statutory seven days’ timeline for filing a reference to challenge the same had already lapsed on November  14, 2023.

He urged the apex court to grant him more time to challenge the deputy Registrar's ruling, a prayer that was rejected.

In their decision, Justices Mwilu, Njoki Ndung'u, Smokin Wanjala, William Ouko, and Mohamed Ibrahim found that the MP was not truthful as the court records reveal that he was served with the disputed ruling through his official email address on November 6, 2023, at 17:19 hours through the Supreme Court email address.

"We note that there have been numerous correspondences from the court through this court’s email address to MP Kaluma and vice versa. Notably, there was correspondence from the court on September 12, 2023, and November 6, 2023, to the MP via his email address," stated the Judges.

Further, the Justice Mwilu-led bench noted that from the court record since March 9, 2023, there is no indication that the email address belonging to Kaluma was subsequently changed.

"There is therefore no doubt in our minds that the email address in question belongs to the applicant. We therefore come to the irresistible conclusion that Kaluma was indeed aware and was served with the impugned ruling," the Supreme Court Judges said.

In September last year, the Supreme Court declined Kaluma's review application seeking to overturn its earlier decision that the NGLHRC must be allowed to officially register as a non-governmental organisation (NGO) for lack of merit and with costs.

"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. 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. He must consequently bear the costs thereof," the apex court ordered on September 12.

In their judgment, the Judges held that it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely based on the sexual orientation of the applicants.

In 2013, Gitari, challenged the Kenya NGO Coordination Board’s refusal to permit him to apply for registration of an NGO under a name containing the words ‘gay’ or ‘lesbian’. The judges ruled in his favour at the High Court in 2015, the Court of Appeal in 2019, and again Supreme Court in March 2023.

The courts found that the refusal, which was on the purported basis that homosexuality is criminalised in Kenya, was unconstitutional, and directly in violation of the guarantee of freedom of association, irrespective of sexual orientation.

Aggrieved by the ruling, Kaluma sought to reverse the Supreme Court's 'purported' amendment of article 27(4) of the Constitution to define sex to include sexual orientation.

The MP invited the court to reconsider the meaning Kenyans attached to the word "sex" during the Constitution-making being the biological state of being male or female.

He contended that the Supreme Court  decision would have the immediate impact of collapsing the rights of girls and women that the people of Kenya had won through decades of hard struggle including the two-thirds gender rule prescribed in article 27(4) which the Supreme Court purported to amend without due mandate.

Kaluma said that the judgement has moved sex from being a biological state of being male or female to the over 150 current gender categories abbreviated as LGBTQ+.