Nairobi, 10 November 2025 – The Court of Appeal today heard preliminary proceedings in the appeal challenging the constitutionality of Sections 162(a), 162(c), and 165 of the Penal Code, which criminalize consensual same-sex relations between adults.
KELIN was represented in court by Allan Maleche and Catherine Namulanda, appearing before Justices Kiage, Achode, and Korir. The matter was coming up for the first hearing of the appeal.
In his remarks, Justice Kiage observed that “the issues raised in this appeal are interesting, significant, and require deep engagement with the constitutional arguments and the case law analyzed by the High Court.” He emphasized that the questions before the Court touch on fundamental rights and must be given the time and attention they deserve.
The Court consequently directed that the matter be adjourned and that the appeal be listed for a full-day hearing before a five-judge bench, to be empanelled by the President of the Court of Appeal. The Court further ordered that the case should be heard on its own day, with no other matters listed, and that it be given priority in the new court term beginning at the end of January 2026.
KELIN’s Role and Interest in the Case
KELIN is participating in the appeal as the 17th Respondent, focusing on the right to health under Article 43(1)(a) of the Constitution. KELIN’s position is that criminalizing consensual same-sex conduct violates the constitutional right to the highest attainable standard of health, as it creates fear, stigma, and discrimination that push key populations—especially men who have sex with men—away from essential HIV prevention, treatment, and care services.
KELIN has presented evidence, including government policy documents, showing that the Ministry of Health itself recognizes that these laws hinder access to healthcare and undermine Kenya’s HIV response.
The appeal challenges the 2019 High Court judgment, which upheld the constitutionality of the Penal Code provisions despite extensive evidence of harm presented by the petitioners and interested parties.
KELIN remains committed to advancing the protection and realization of the right to health for all, without discrimination, and will continue to engage in strategic litigation that promotes dignity, equality, and justice.
#Repeal162 #TheIssueIsViolence #Justice2Health
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For more information, please contact.
Allan Maleche
Executive Director
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
Kuwinda Lane, Karen C, off Langáta Road
Email: amaleche@kelinkenya.org
