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
#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
- 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
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.
- Wanuri Kahiu v Creative Economy Working Group & 5 others[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.