In 2015, National Gay and Lesbian Human Rights Commission successfully petitioned the Kenya High Court after the NGO Coordination Board refused to register the organisation on the basis that homosexuality was illegal in Kenya.
The ruling was then challenged at the Court of Appeal on March 22, 2019, which eventually ruled in favour of an LGBTQ, National Gay and Lesbian Human Rights Commission.
On the Court of Appeal's bench was the current Chief Justice of the Supreme Court of Kenya, Martha Koome.
Of the five-judge bench, three judges dismissed an appeal by the NGO Coordination Board, in which the government was seeking authority to block lesbian, gay, bisexual and transgender (LGBT) lobby groups from registration.
Nine days later, the NGO Coordination Board moved to Supreme Court to challenge the decision of Court of Appeal.
On May 21, 2021, Justice Martha Koome assumed office as Chief Justice and the President of the Supreme Court of Kenya, where the LGBTQ case had been filed for hearing and determination of the matter.
To avoid a conflict of interest in the case, Lady Justice Koome stayed away from the matter, including commenting on the issue.
"Conflict of interest occurs when a trial lawyer either has an interest in the outcome of the case he is involved in or his representation of a party to the proceedings which would hinder the administration of justice to the other party," Nicco Law explained.
Speaking to Kenyan.co.ke, Lawyer George Oriaro explained that CJ Koome's silence is intentional and that is it should be, especially after Supreme Court pronounced itself over the matter.
"She doesn't have to say anything about it. The Court has already pronounced itself on the matter. The decision of the majority is the decision of the whole court," Oriaro explained.
However, it is not only CJ Koome that kept away from the matter at Supreme Court, Justice Lenaola too did not write his judgment.
"You'll notice it's Koome and Lenaola who weren't part of the bench that delivered the judgment.
This is because Lenaola was part of the High Court bench that first heard the matter. So both Koome and Lenaola had already pronounced themselves on the matter. They could not again sit to hear it on appeal," Oriaro explained.
Constitutional Lawyers agreed that it would be unprofessional of CJ Koome to give her views on the matter that she previously ruled on and adversely shared her opinion.
"The point is she doesn't and should not comment on the matter. It will be very unprofessional. A competent Court has already ruled on the matter.
"She isn't even allowed to comment on judgments from the Magistrate Court leave alone the High Court," Oriaro stated.
What Next After Supreme Court Ruling?
Constitutional Lawyer Robert Omondi added that those dissatisfied with the verdict could ask the apex court to review or vacate its ruling.
"This ruling is not cast-in-stone because the future bench of the Supreme Court could review and make a new determination on the same matter," Omondi explained, while speaking to Kenyans.co.ke.
Lawyer Omondi's views were supported by Advocate Nillah Marsame who noted that the Supreme Court is not bound by its ruling, as such, the sitting bench can review the matter at any moment of a new application.
"Being the court of the last opinion on constitutional matters, it cannot be bound by the previous judgments or rulings. This is because, the law does evolve, and there any many other circumstances that will in future inform new decisions," Nillah told Kenyans.co.ke.
Attorney General Justin Muturi indicated that he will head to the Supreme Court to challenge the ruling.
“Once I read the mood of the country, I may be in a position to move to Supreme Court by way of serving people to challenge the decision. I am sure over 95 percent of our population was shocked, we cannot and we must not go that route,” stated Muturi.
