The High Court in Mombasa will on Thursday deliver a landmark ruling in a case in which two suspected homosexuals have challenged the constitutionality of undergoing an anal examination as proof of being gay.
The ruling had been scheduled for Monday but was not delivered as Justice Anyara Emukule announced that it was not ready.
“The case had been set for ruling today; however, the same has been deferred until Thursday,” he said.
Mr Caleb Idris and Mr George Maina Njeri, who are suspected to be gay, had gone to court seeking dismissal of evidence the prosecution had obtained from them, claiming it was acquired illegally.
They said in a petition that the evidence was obtained against the principle of self-incrimination by an accused person as provided for under the Constitution and the law of evidence.
Through lawyer Ligunya Sande, they said they were forced to undergo anal medical examination on consequential HIV and hepatitis B testing, which they claimed subjected them to torture, cruel, inhuman and degrading treatment and punishment.
“My clients were subjected to forced medical examination against their will, which was humiliating and unconstitutional,” Ms Sande said in a petition. “It violated their constitutional rights.”
The respondents are a Ukunda court magistrate, Msambweni DCIO, Office of the Director of Public Prosecution and the Cabinet Secretary, Ministry of Health.
The ruling was set for Thursday.