The High Court, on Friday, declined to Repeal Section 162 of Penal Code which criminalises gay sex.
The three-judge bench, consisting of Justices Chacha Mwita, Roselyne Ekirapa, and John Mativo stated that they were not persuaded by the petitioners that the offenses were overboard.
Reading the ruling, Judge Mativo noted that evidence submitted showing that LGBT people had been denied healthcare services on the basis of their sexuality were general statements that did not meet the burden of proof.
"On the right to non-discrimination, the Constitution only prohibits unfair discrimination. In this case, the language of section 162 targets "Any person" and not a particular group with a particular sexual orientation, as claimed by the petitions.
"We find that the impugned provisions are not unconstitutional and hereby dismiss the petition," the judges ruled.
Explaining the judge's decision-making process, Justice Aburili stated that striking down the penal codes would impact the values upheld in the constitution.
She caused a stir when she stated, "No scientific evidence to prove that LGBT people are 'born that way'."
"Acknowledging cohabitation among people of the same sex (where they would ostensibly be able to have same-sex intercourse) would “indirectly open the door for unions (marriage) of people of the same sex," the justice noted.
Activists who filed the case argued that the law violated Kenya’s progressive 2010 constitution, which guarantees equality, dignity and privacy for all citizens.
In Kenya, same-sex relationships can lead to a 14-year jail sentence.
