Non-Governmental Organizations Co-ordination Board v EG & 5 others (Civil Appeal 145 of 2015) [2019] KECA 902 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that LGBTIQ persons can register NGOs, ruling the NGO Board's refusal of a name violated freedom of association.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st respondent's petition before the High Court was competent, having regard to the requirement under section 19 of the Non-Governmental Organizations Coordination Act to appeal to the Minister before going to court (exhaustion of internal remedies)
- 2.Whether, in rejecting the reservation of the proposed names, the Director of the NGO Board was in breach of Article 36 of the Constitution
- 3.Whether 'every person' in Article 36 of the Constitution includes all persons living in Kenya despite their sexual orientation
- 4.Whether the refusal to register the proposed NGO contravened sections 162, 163 and 165 of the Penal Code or was justified under the limitation clause in Article 24
- 5.Whether sexual orientation is a prohibited ground of discrimination under Article 27(4) of the Constitution
Key legal issues
#Competence of the petition / exhaustion of internal remedies
The petition was competent. No application for registration under section 10 was ever made and no Board decision under section 14 was ever taken, so there was no decision of the Board under Part III against which an appeal to the Minister under section 19 could lie; the only step taken was a Regulation 8 name-reservation refusal, for which no internal appeal mechanism exists.
The Board as constituted under section 4 never met; the application for registration under section 10 was never submitted; hence refusal under section 14 and the section 19 appeal never arose. The Director's refusal of the name was a purely administrative act under Regulation 8 of the 1992 Regulations, and the Regulations contain no appeal mechanism for such a refusal. The Board's own officers had also suggested the respondent approach the court, and the Minister cannot interpret or enforce the Constitution.
Whether the refusal of name reservation breached Article 36 of the Constitution
It did. Article 36 grants 'every person' the right to form an association of any kind; LGBTIQ persons are persons; their stated objectives were lawful; and registration may not be withheld unreasonably.
The Constitution's interpretive commands (Articles 20(3)-(4), 259) require the interpretation most favourable to the enforcement of rights. The Penal Code criminalizes acts, not identity or association; the proposed NGO's objectives - fact-finding, research, reporting, strategic litigation and advocacy - were not unlawful. Denying registration on the basis of moral or religious disapproval of a group constitutes discrimination rather than a justified limitation under Article 24, and the appellant led no evidence justifying the limitation.
Whether sexual orientation is a prohibited ground of discrimination under Article 27(4)
The listed grounds in Article 27(4) are non-exhaustive because 'including' is defined in Article 259(4)(b) as 'includes, but is not limited to', so the court may determine on a case-to-case basis other grounds, including sexual orientation, that fall within the provision.
The majority adopted a purposive interpretation: the Constitution is a living instrument to be interpreted holistically, contextually and purposively, and the national values in Article 10 include non-discrimination and protection of the marginalized. However, the right of association crystallized in this case rested on Article 36 itself, and the court refrained from deciding the constitutionality of sections 162, 163 and 165 of the Penal Code, which is pending before the High Court.
Dissent on jurisdiction (Nambuye and Musinga, JJ.A)
The dissent would have held that the Director acted for and on behalf of the Board under Part III of the NGOCA, so the section 19 appeal to the Minister ought to have been exhausted, and the High Court consequently lacked jurisdiction; on the merits, Nambuye JA held that non-discrimination on the basis of sexual orientation cannot be judicially crystallized absent constitutional amendment or legislative change.
Musinga JA reasoned that Regulations made under section 32 must be read with the Act, and that the Director's name-rejection was a Board decision under Part III; since the respondent never sought exemption under section 9(4) of the Fair Administrative Actions Act, the High Court's assumption of jurisdiction was fatal. Nambuye JA held that entrenchment of 'sexual orientation' in Article 27(4) could occur only through the amendment procedures in Articles 255-257, otherwise the right is 'merely aspirational'. These views did not command a majority.
Legal principles established
#- Section 19 of the NGO Coordination Act provides an appeal to the Minister only in respect of substantive Board decisions under Part III (such as refusal of registration); it does not apply to a refusal by the Director to approve a name for reservation under Regulation 8 of the 1992 Regulations
- Article 36 of the Constitution guarantees freedom of association to every person, including persons belonging to LGBTIQ groups, and registration of an association may not be withheld unreasonably
- Sections 162, 163 and 165 of the Penal Code criminalize specific acts against the order of nature, not the state of being homosexual, and therefore do not lawfully limit the freedom of association of persons based on sexual orientation
- Religious beliefs, popular morality and majoritarian public opinion are not legitimate grounds on which a public body may refuse registration of an association
- Where a statute provides a dispute-resolution procedure, that procedure must be exhausted before resort to the courts, subject to there being no applicable remedy or exceptional circumstances
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear its own costs
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Concluding judgment of the bench. Framed the appeal as turning on two dispositive issues: the competence of the petition before the High Court and whether the Director's refusal to reserve the proposed names breached Article 36. Found that no Board decision under Part III of the NGOCA had been made (no application for registration under section 10, no refusal under section 14), so the section 19 appeal to the Minister never arose and the High Court was properly seised. Held that Article 36 protects 'every person', that LGBTIQ persons are persons, and that the Penal Code does not criminalize persons qua persons. Dismissed the appeal with each party bearing its own costs, with an obiter call for honest national engagement on LGBTIQ issues.
In the event, the orders of the Court are that this appeal be and is hereby dismissed. The order for costs is unanimous that each party shall bear its own costs.p. 28
Wrote the judgment
Dissented. Held that the genesis of the petition was a purely administrative decision of the Director acting on behalf of the Board, amenable to the section 19 exhaustion procedure, which should have been exhausted before the High Court was approached. On the merits, accepted that Article 36 guarantees association to every person and that the word 'includes' in Article 27(4) can encompass sexual orientation, but held that crystallizing non-discrimination on the basis of sexual orientation required either striking down sections 162, 163 and 165 of the Penal Code or entrenching 'sexual orientation' through the amendment procedures in Articles 255-257; otherwise the right is merely 'aspirational'. Would have allowed the appeal and set aside the High Court judgment.
The upshot of all the above assessment is that, I find merit in the appeal. It is accordingly allowed. The Judgment of the High Court dated 24th April, 2015 is set aside save for the order that each party to bear own costs which I affirm.p. 45
Wrote the judgment
Dismissed the appeal. Found no legal justification to disturb the High Court's findings: neither the NGO Act nor the Regulations provide an internal appeal mechanism for refusal of name reservation, and sending the respondent back to a Board that had already expressed a prejudicial view would be futile. Held that being gay or lesbian without more is not an offence, that sections 162, 163 and 165 criminalize acts capable of commission by anyone regardless of sexual orientation, and that denying association rights on the basis of majoritarian religious or moral disapproval is outright discrimination.
Accordingly and for the aforesaid reasons this appeal is dismissed, I make no order as to costs this being a public interest matter, the order that commends itself is for each party to bear their own costsp. 62
Wrote the judgment
Dismissed the appeal. Held that the appellant was dealing with name reservation under Regulation 8, not registration under Part III, so section 19 of the NGOCA was inapplicable; moreover the Board's own officers had advised the respondent to approach the court, and the Minister cannot enforce or interpret the Constitution. Held that Article 36 extends to all human beings irrespective of sexual orientation, that sections 162 and 165 do not criminalize the state of being homosexual, and that the grounds in Article 27(4) are non-exhaustive by virtue of the word 'including' as defined in Article 259(4)(b).
The appeal lacks merit and is accordingly dismissed. Each party shall bear its own costs.p. 75
Wrote the judgment
Dissented. Held that the rejection of the proposed names was a Board decision under Part III of the NGOCA made by the Director on the Board's behalf, and that the High Court should have directed the respondent to first exhaust the section 19 remedy; in the absence of an application under section 9(4) of the Fair Administrative Actions Act, the High Court had no jurisdiction and its decision was a nullity. On the merits, held that freedom of association under Article 36 is not absolute, that 'every person' must be read as the right of any sane, law-abiding adult to form a lawful association, and that for as long as sections 162, 163 and 165 of the Penal Code stand, the Board lawfully rejected names it considered inconsistent with the law. Would have allowed the appeal and set aside the High Court judgment.
For the aforesaid reasons, I would allow the appeal and set aside the High Court judgment and decree given on 24th April, 2015. I would further propose that each party bears its own costs of the appeal.p. 95
- On appeal from
- High Court of Kenya at Nairobi (Constitutional and Judicial Review Division)
- Jurisdiction invoked
- First appeal to the Court of Appeal under Article 164(1)(c) of the Constitution; appellate mandate described as a retrial under rule 29(1) of the Court of Appeal Rules, cited in the judgment
Relief refused
#Appellant's prayer to set aside the High Court judgment and decree of 24th April 2015 and affirm the Board's right to deny registration
The majority (Waki, Koome and Makhandia, JJ.A) found the High Court properly assumed jurisdiction since no Board decision under Part III of the NGOCA had been made and section 19 provided no remedy for refusal of name reservation, and that the rejection of the names breached Article 36
Appellant's contention that the Penal Code justified refusing registration because the proposed NGO would promote criminal acts
The court held the Penal Code criminalizes specific acts, not the state of being homosexual, and did not limit the right of association
Costs
Each party to bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the event, the orders of the Court are that this appeal be and is hereby dismissed. The order for costs is unanimous that each party shall bear its own costs.
The Board as constituted under section 4 never met; the application as detailed in section 10 was never submitted; and, consequently, one cannot talk about refusal of registration under section 14 which would attract the procedure of appeal under section 19.
Section 19 of the Act applies to substantive decisions concerning the actual registration or refusal for registration. Section 19 is invoked once the Board has made a decision in regard to the actual registration.
I find it uncontroverted, therefore, that Article 36 covers the persons in that group. Like everyone else, they have a right to freedom of association which includes the right to form an association of any kind.
Religious texts are neither a source of law in Kenya nor form the basis for denying fundamental rights and obligations.
A decision arrived at by a court that lacks jurisdiction is a nullity, even if the court would have arrived at the same decision had it determined the dispute procedurally and at the right time.
The upshot of all the above assessment is that, I find merit in the appeal. It is accordingly allowed. The Judgment of the High Court dated 24th April, 2015 is set aside save for the order that each party to bear own costs which I affirm.
Issues in the judgment
#Nambuye JA's judgment contains duplicated paragraph numbering (two paragraphs numbered 60 and two numbered 36), suggesting clerical/numbering errors in the official text
Nambuye JA's dissenting disposition sets aside the High Court judgment but expressly affirms its costs order, a partially self-contradictory result
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kahiu v Creative Economy Working Group & 6 others (Civil Appeal E378 of 2020) [2026] KECA 132 (KLR)[2026] KECA 132 (KLR)23 Jan 2026
Cite this brief
#Cite this brief
Caselaw, "Non-Governmental Organizations Co-ordination Board v EG & 5 others (Civil Appeal 145 of 2015) [2019] KECA 902 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/902/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.