The hearing of a long-running appeal challenging provisions of Kenya’s Penal Code that criminalise homosexuality was on Tuesday postponed by the Court of Appeal, despite strong objections from Murang’a Governor Irungu Kang’ata.
A five-judge bench allowed the adjournment after the appellant, Eric Gitari, informed the court through his lawyer that he was suffering from a mental health crisis and was unable to attend the hearing.
The appeal challenges Sections 162 and 165 of the Penal Code, which criminalise consensual same-sex relations.
Governor Kang’ata Opposes Adjournment
Murang’a Governor Irungu Kang’ata, through his lawyer Harrison Kinyanjui, opposed the application for adjournment, arguing that the matter has been pending since 2019 and should be concluded without further delay.
Kinyanjui told the court that all parties were ready to proceed and that postponing the case undermined the public interest.
“A 2019 appeal is not one that should be adjourned in 2026, given the grave public interest involved,” Kinyanjui submitted.
He added that the application was ill-timed and made in bad faith, noting that Gitari’s alleged mental health condition had not been raised during the previous adjournment barely weeks earlier.
Mental Health Grounds Raised
Gitari’s advocate, Sande Ligunya, told the bench that her client had suffered a mental breakdown since August 2025, making it impossible for him to participate in the proceedings.
The bench comprised Francis Tuiyot, Pauline Nyamweya, Lydia Achode, Abida Ali Aroni, and Weldon Korir.
Kinyanjui questioned why the alleged illness had not been disclosed earlier, insisting that neither the governor nor the court had been informed of any medical issues during earlier proceedings.
Arguments on Constitutionality and Public Policy
Gitari, who is the director of the National Gay and Lesbian Human Rights Commission, argues that the Penal Code provisions are discriminatory and violate several constitutional rights.
Governor Kang’ata maintains that the High Court correctly dismissed the petitions, and faulted Gitari for bypassing Parliament.
He argued that legislative authority rests with Parliament under Article 94 of the Constitution, and warned against courts redefining social norms through judicial decisions.
Kinyanjui further submitted that societal stigma, even if it exists, cannot be eliminated through court rulings.
“Courts lack the power to regulate social attitudes. Stigmatization of conduct by society cannot be legislated away,” he argued.
Court Orders Medical Report, Sets Timeline
While allowing the adjournment, the Court of Appeal directed that a medical report detailing Gitari’s health status be filed by April 15, 2026, citing the great public interest surrounding the case.
“In view of the age of this matter and the public interest involved, the appeal shall be heard in May 2026 on a date to be communicated by the registry,” Justice Tuiyot directed.
The judges also issued a stern warning to Gitari’s counsel over late adjournment applications.
“In future, counsel must notify colleagues in good time and provide succinct evidence when seeking adjournments,” the bench cautioned.
Background of the Appeal
The appeal arises from consolidated constitutional petitions filed in 2016, which sought to invalidate laws criminalising homosexuality in Kenya. The High Court dismissed the petitions, prompting the appeal now pending before the Court of Appeal.