Non-Governmental Organizations Co-ordination Board v EG & 5 others (Civil Appeal 145 of 2015) [2019] KECA 902 (KLR) (22 March 2019) (Judgment)

Facts

The Non-Governmental Organizations Co-ordination Board (NGO Co-Ordination Board) refused to register the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) Community Rights Group. The 1st respondent, EG, filed a petition in the High Court challenging the Board's decision.

Issues

1. Whether one could file a suit in court where there was a procedure for redress presented by the Constitution or an Act of Parliament before exhausting the procedure provided.
2. What was the procedure to be followed where a person was aggrieved by the decision of the NGO Co-ordination Board not to register a non-governmental organization?
3. Whether an aggrieved party could appeal against a decision of the Executive Director of NGO Co-ordination Board to refuse to approve a proposed name of a non-governmental organization to the Minister in charge.
4. Whether members of the LGBTIQ community were 'persons' as recognized in article 36 of the Constitution on the freedom of association.
5. Whether it was an offence for one to be a gay or a lesbian without more action as provided for in sections 162, 163 and 165 of the Penal Code.
6. Under what circumstances could the right to form, join and participate in non-governmental organizations, associations or groups be limited?
7. What was the nature of the concept of dignity in human rights?
8. Whether a person could be denied fundamental rights and freedoms based on his or her sexual orientation.
9. What were the circumstances in which the Court of Appeal could interfere with the findings of fact by the High Court?

Reasoning

The Court held that the NGO Co-ordination Board's decision to refuse registration was not a Board decision contemplated under Part III, section 19(1) of the Act, against which an appeal lay to the Minister. The Court also ruled that the LGBTIQ community members were 'persons' as recognized in article 36 of the Constitution on the freedom of association.

Outcome

Affirmed

Authorities cited