REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CONSTITUTIONAL PETITION NO. E007 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
BETWEEN
SOFIA RAJAB (on her own behalf and on behalf of all women and girls who are victims or suspected victims of female genital mutilation (FGM) who have been arrested, charged and detained for offences under Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act) & 6 OTHERS...........................................PETITIONERS
VERSUS
THE ASSISTANT CHIEF, MOGOR VILLAGE & 10 OTHERS................................RESPONDENTS
AND
FEDERATION OF WOMEN LAWYERS IN KENYA (FIDA) & OTHERS................................PROPOSED AMICI CURIAE
RULING
INTRODUCTION
1. Before this Court is the Petitioners' Notice of Motion dated 20th March 2026, brought principally under Article 165(4) of the Constitution, seeking certification that this Petition raises substantial questions of law warranting the empanelment of an uneven bench of not less than three Judges.
2. The application is premised on the grounds appearing on its face and is supported by the affidavit of Nora Mbagathi sworn on 21st May 2026.
3. The application was uncontested.
4. The Petitioners contend that the Petition raises novel and substantial constitutional questions concerning the enforcement of the Prohibition of Female Genital Mutilation Act, the constitutional rights of women and girls who are victims or suspected victims of FGM, the legality and constitutionality of compulsory genital examinations undertaken in the course of criminal investigations, the use of evidence obtained through such examinations, and the constitutional validity or application of sections 20 and 24 of the Prohibition of Female Genital Mutilation Act.
5. The Petition consequently brings into sharp focus the relationship between the State's legitimate and constitutionally important obligation to eradicate FGM and its concurrent obligation to respect, protect and promote the dignity, bodily integrity, privacy, equality and fair trial rights of persons subjected to criminal investigation.
THE PETITIONERS' CASE
6. The Petitioners submit that the matter satisfies both limbs of Article 165(4) of the Constitution. First, they contend that it concerns alleged violations of several rights protected under the Bill of Rights, including equality and freedom from discrimination, human dignity, freedom and security of the person, privacy, freedom from cruel, inhuman or degrading treatment, fair trial rights and the rights of vulnerable persons.
7. Secondly, they contend that the Petition raises substantial questions of law whose determination transcends the circumstances of the individual Petitioners and has significant implications for women and girls throughout Kenya, particularly those suspected of having undergone FGM and thereafter subjected to arrest, detention, medical examination and prosecution.
8. It is further submitted that the Petition raises questions which have not been conclusively determined by Kenyan courts, including whether the State may, in the course of investigating alleged FGM offences, subject an individual to a compulsory genital examination without a sufficiently clear legal basis, appropriate safeguards and respect for constitutional rights.
ISSUE FOR DETERMINATION
9. The sole issue for determination is whether this matter raises a substantial question of law within the meaning of Article 165(4) of the Constitution to justify certification to the Honourable Chief Justice for empanelment of an uneven bench of not less than three Judges.
THE LAW ON CERTIFICATION UNDER ARTICLE 165(4)
10. Article 165(4) of the Constitution provides:
"Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice."
11. The Constitution does not define the expression "substantial question of law". The jurisprudence developed by the Kenyan courts therefore requires the Court to determine, on a case-by-case basis, whether the questions presented possess the degree of constitutional significance contemplated by Article 165(4).
12. In Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] eKLR, the Court of Appeal held that the word "substantial" bears the ordinary meaning of "considerable importance" and adopted, with appropriate modification, principles drawn from the Supreme Court's jurisprudence on certification. The Court stated, inter alia, that the issue should transcend the circumstances of the particular case, have significant bearing on the public interest, and involve a state of uncertainty in the law.
13. The Court of Appeal further emphasised that certification under Article 165(4) is a matter for judicial determination and that the applicant must identify and concisely set out the specific substantial question or questions of law said to arise.
14. The same approach was subsequently applied in Attorney General v Okiya Omtatah Okoiti & another [2019] KECA 774 (KLR), where the Court of Appeal considered the meaning of "substantial question of law" and referred approvingly to the test in Sir Chunilal V. Mehta & Sons Ltd v Century Spinning & Manufacturing Co Ltd, AIR 1962 SC 1314. The test asks, among other things, whether the question is of general public importance, directly and substantially affects the rights of the parties, remains unsettled, presents difficulty, or calls for consideration of alternative views.
15. In National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & another [2017] eKLR, the High Court similarly observed that a substantial question of law is more than an ordinary question of law. It may arise where the issue directly or indirectly affects substantial rights, is of general public importance, remains open or unsettled, is attended by difficulty, or calls for consideration of alternative legal views. The Court nevertheless cautioned that complexity or novelty, standing alone, does not automatically satisfy Article 165(4).
16. In Judicial Service Commission v National Assembly & 2 others [2017] eKLR, the High Court reiterated that the mere fact that a matter raises constitutional questions is insufficient. The Court must satisfy itself that the questions are substantial and fall within Article 165(3)(b) or (d). The Court may consider whether the matter raises a novel point, is complex, is likely to require substantial judicial consideration, has significant public interest, or raises questions of jurisprudential moment.
17. The Court is equally mindful of the caution expressed in Stanley Livondo v Attorney General [2020] KEHC 843 (KLR), that complexity of facts or law does not, by itself, make a matter one raising a substantial question of law. Certification is therefore not intended to become routine merely because a constitutional petition is lengthy, sensitive or attracts public attention.
18. The guiding principle, therefore, is not whether the Petition is merely important, difficult or controversial. The Court must determine whether the constitutional questions identified are sufficiently substantial, unsettled and consequential that their determination transcends the immediate dispute and has significant implications for constitutional jurisprudence or the public interest.
ANALYSIS
19. Against that legal framework, the Court has carefully considered the Petition, the Notice of Motion, the supporting affidavit and the constitutional and statutory provisions relied upon by the Petitioners.
20. The Court is satisfied that the Petition raises questions falling squarely within Article 165(3)(b) and (d) of the Constitution. The Petition concerns alleged violations of rights protected under the Bill of Rights and also calls for determination of whether conduct undertaken pursuant to, or purportedly under the authority of, legislation is consistent with the Constitution.
21. The first substantial question concerns the constitutional limits of investigative powers where the investigation requires intrusion into the intimate and private parts of the human body.
22. Articles 28 and 31 of the Constitution protect human dignity and privacy respectively. In contrast, Article 29 protects the freedom and security of the person, including freedom from torture and cruel, inhuman or degrading treatment. Article 50 further guarantees the right to a fair trial.
23. A compulsory genital examination is not an ordinary investigative act. It potentially involves an intrusion into bodily integrity, sexual privacy, dignity and personal autonomy. The constitutional question is therefore not merely whether an investigation into FGM is permissible, but whether the manner in which such an investigation is undertaken satisfies the constitutional requirements of legality, necessity, proportionality and procedural safeguards.
24. This question acquires particular significance in the present case because the Petitioners allege that some of the persons subjected to investigation are themselves victims or suspected victims of FGM.
25. The constitutional tension is therefore apparent. The State has a legitimate and constitutionally compelling obligation to protect women and girls from harmful practices and to enforce the law against FGM. That obligation, however, does not place persons suspected of being victims of FGM outside the protection of the Constitution.
26. The Supreme Court has repeatedly affirmed that all exercises of public power must conform to the Constitution. In Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others [2021] KESC 34 (KLR), the Supreme Court emphasised the centrality of constitutional rights and remedies in controlling the exercise of public power.
27. More directly relevant is PAK & another v Attorney General & 3 others [2022] KEHC 262 (KLR), in which the High Court considered the arrest and forced medical examination of a minor in the course of an investigation. The Court examined the conduct against Articles 25, 28, 29, 31 and 43 of the Constitution and found that the forced medical examination implicated fundamental rights including dignity, privacy, freedom and security of the person and freedom from cruel, inhuman and degrading treatment.
28. The significance of PAK is not that the facts are identical to the present Petition. They are not. Its significance is that it demonstrates that using a medical examination as an investigative tool can raise substantial constitutional questions where bodily integrity, privacy, dignity and security of the person are implicated.
29. The question presented in the present Petition therefore goes beyond the ordinary application of criminal procedure. It requires the Court to consider the constitutional boundaries of investigative power where the body of the person being investigated is itself the object of the investigation.
30. The second substantial question concerns the interaction between the Prohibition of Female Genital Mutilation Act and the Constitution.
31. The State's interest in prohibiting FGM is neither doubtful nor constitutionally insignificant. The Prohibition of Female Genital Mutilation Act was enacted to prohibit FGM and safeguard persons against violation of their mental and physical integrity through the practice. The Act criminalises the performance of FGM and related conduct, including aiding and abetting and failure to report an offence.
32. The constitutionality of the legislative framework has previously been considered in Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) [2021] KEHC 450 (KLR).
33. In Kamau, the High Court, sitting as a three-Judge bench, considered challenges to provisions of the Prohibition of FGM Act based on, inter alia, dignity, equality, culture, health and autonomy. The Court's determination demonstrates that the constitutional status and operation of the anti-FGM legislative framework raise questions capable of engaging several fundamental rights simultaneously.
34. The present Petition, however, raises a materially different question. It does not merely challenge Parliament's policy choice to prohibit FGM. It raises questions concerning the constitutional limits of the State's enforcement mechanisms, particularly where the persons subjected to investigation may themselves be victims or survivors.
35. That distinction is important. The question of whether FGM should be prohibited is substantially different from the question of whether, in enforcing that prohibition, the State may employ investigative methods that intrude upon bodily integrity, privacy and dignity, and, if so, under what safeguards and legal authority.
36. The third substantial question concerns the constitutional protection of vulnerable persons.
37. Article 21(3) of the Constitution requires all State organs and public officers, in the exercise of their functions, to address the needs of vulnerable groups within society. Article 53 provides additional protection to children, while Article 27 guarantees equality and freedom from discrimination.
38. Where the persons affected are women and girls who may themselves be survivors of a harmful cultural practice, the State's protective obligation must be considered together with its obligation to avoid secondary victimisation through its investigative and prosecutorial processes.
39. This issue is reinforced by Kenya's international and regional human-rights obligations. Article 2(5) and (6) of the Constitution incorporates general rules of international law and treaties or conventions ratified by Kenya into Kenyan law. The Maputo Protocol, particularly Article 5, requires States Parties to prohibit and condemn harmful practices affecting women and to take appropriate measures to eliminate them.
40. The constitutional question is therefore not simply whether Kenya has an obligation to eradicate FGM. It plainly does. The more difficult question is how that obligation is to be reconciled with the State's simultaneous obligations to respect dignity, privacy, bodily integrity, equality and fair trial rights.
41. The fourth substantial question concerns whether the use of evidence obtained through an intrusive medical or genital examination can be reconciled with the constitutional right to a fair trial.
42. Article 50(2)(l) protects an accused person's right to refuse to give self-incriminating evidence. Although the precise application of the privilege against self-incrimination to physical or medical evidence is itself a matter requiring careful legal analysis, the Petition raises an arguable constitutional question about the distinction between testimonial compulsion and compelled bodily evidence—the safeguards required when the State seeks to obtain evidence through intrusion into the body.
43. That question is not rendered insubstantial merely because existing criminal procedure may permit certain forms of examination or production of physical evidence. The constitutional issue is whether the statutory and procedural framework, as applied in the circumstances alleged by the Petitioners, satisfies the Constitution.
44. The fifth substantial question concerns the interpretation and application of sections 20 and 24 of the Prohibition of Female Genital Mutilation Act.
45. The Court must, however, make an important distinction at this interlocutory stage. Section 20 criminalises aiding, abetting, counselling or procuring FGM, while section 24 creates an offence for failure to report knowledge that FGM has been, is being, or is intended to be committed. Neither provision, on its face, expressly creates a power to conduct compulsory genital examinations.
46. Accordingly, the substantial constitutional question is not whether sections 20 and 24 expressly authorise compulsory genital examinations. Rather, it is whether the investigative practices complained of by the Petitioners, and the use or admissibility of evidence obtained through those practices, possess a sufficient legal basis and comply with Articles 28, 29, 31 and 50 of the Constitution.
47. The distinction is important because the present application concerns certification and not determination of the merits. The Court is not at this stage determining whether the impugned examinations occurred, whether they were lawful, whether any evidence was obtained through them, or whether sections 20 and 24 are unconstitutional.
48. Those are matters for the substantive hearing of the Petition.
49. The sixth consideration is the broader jurisprudential and public-interest dimension of the questions presented.
50. FGM remains an issue involving criminal law, public health, gender equality, children's rights, culture, bodily autonomy and human dignity. The legal framework consequently operates at the intersection of several constitutional values and rights.
51. Scholarly literature confirms the complexity of that intersection. Hannelore Van Bavel, in "Is Anti-FGM Legislation Cultural Imperialism? Interrogating Kenya's Prohibition of Female Genital Mutilation Act", Social & Legal Studies, Vol. 32, Issue 3 (2023), examines the development and contestation of Kenya's anti-FGM legislation and highlights the tensions between human-rights protection, cultural claims, local agency and the transnational anti-FGM movement.
52. Similarly, Caroline Omari Lichuma, in "Between Universalism and Cultural Relativism: The Dilemma of Consent to Female Genital Mutilation in the Tatu Kamau Case", Kabarak Journal of Law and Ethics, Vol. 6 (2022), identifies the tension between universal human-rights protection and claims founded upon culture, consent, dignity and autonomy in the Kenyan FGM litigation.
53. Frida A. Ombogo's University of Nairobi study, "Towards the Elimination of Female Genital Mutilation – An Appraisal of Kenya's Prohibition of Female Genital Mutilation Act, 2011" (2018), similarly examines the limits of criminalisation as a tool for eliminating FGM and argues for complementary approaches beyond criminal law alone.
54. More recent socio-legal scholarship has also examined the implementation of anti-FGM laws in Kenya, including the tension between coercive enforcement and community-level facilitation and the implications of Articles 2(5) and 2(6) of the Constitution and Article 5 of the Maputo Protocol.
55. The Court does not cite these scholarly works as binding legal authorities. Rather, they demonstrate that the questions raised in this Petition form part of a wider and continuing jurisprudential debate concerning the appropriate relationship between criminalisation, bodily integrity, autonomy, gender equality, cultural rights and the protection of women and girls.
56. The Court is also mindful of the findings of the American Bar Association Centre for Human Rights in its 2024 report, "Monitoring Prosecutions under the Prohibition of FGM Act in Kenya", which reviewed 68 criminal cases under the Act and reported concerns regarding the prosecution of victims of FGM themselves. While the report is not a judicial authority and does not determine the facts of this Petition, it underscores the wider public importance of ensuring that enforcement of anti-FGM laws does not inadvertently result in the criminal-justice system treating victims as offenders without appropriate legal and constitutional safeguards.
57. In the Court's view, these considerations demonstrate that the questions presented are not merely questions of fact or routine application of settled law. They engage the constitutional architecture governing the relationship between State enforcement power and fundamental rights.
58. The Court is therefore satisfied that the Petition raises questions which:
a. directly concern fundamental rights protected by the Bill of Rights;
b. involve the interpretation and application of Articles 21, 27, 28, 29, 31 and 50 of the Constitution;
c. raise questions concerning the constitutionality and application of legislation;
d. involve the limits of investigative power where bodily integrity and privacy are implicated;
e. concern the protection of women, girls and other vulnerable persons;
f. raise issues which have significant implications for law-enforcement agencies, prosecutors, medical practitioners and trial courts; and
g. have jurisprudential significance extending beyond the immediate parties.
59. The Court is particularly persuaded by the fact that the constitutional questions arising from compulsory or allegedly compulsory genital examinations in the investigation of FGM offences do not appear to have received a definitive determination by the superior courts in Kenya in the precise factual and statutory context presented by this Petition.
60. This is significant. As stated in Okiya Omtatah Okoiti v Anne Waiguru, uncertainty in the law and a question that transcends the circumstances of the particular case are material considerations in determining whether certification is warranted.
61. The Court nevertheless reiterates that the mere novelty, sensitivity or public interest of a matter does not automatically satisfy Article 165(4). What distinguishes the present Petition is the convergence of several constitutional questions concerning the limits of State power, bodily integrity, privacy, dignity, equality, fair trial rights and the enforcement of a statute designed to protect women and girls from a harmful practice.
62. The Petition therefore presents an appropriate case in which an expanded bench may consider and develop the jurisprudence governing the constitutional limits of investigative measures undertaken in the enforcement of anti-FGM legislation.
63. The Court is accordingly satisfied that the questions raised are of considerable constitutional importance and that their determination has the potential to contribute materially to the development of Kenyan constitutional jurisprudence.
64. The Court emphasises that certification does not amount to a determination of the merits of the Petition. Neither does it signify that the Petitioners will ultimately succeed. It merely signifies that the constitutional questions identified meet the threshold for consideration by an uneven bench under Article 165(4).
65. The Court further makes clear that nothing in this ruling should be understood as questioning the constitutionality or legitimacy of Kenya's prohibition of FGM. The State has a clear constitutional and international obligation to protect women and girls from harmful practices. The issue for determination is whether the means employed in enforcing that obligation conform to the Constitution.
66. In the circumstances, this Court is satisfied that the Petition raises substantial questions of law within the meaning of Article 165(4) of the Constitution.
DISPOSITION
67. Consequently, the Notice of Motion dated 20th March 2026 is merited.
68. Accordingly, the Court makes the following orders:
a. The Notice of Motion dated 20th March 2026 is hereby allowed.
b. This Court hereby certifies that Constitutional Petition No. E007 of 2025 raises substantial questions of law within the meaning of Article 165(4) of the Constitution.
c. The Deputy Registrar shall forthwith transmit the Court file together with a copy of this ruling to the Honourable the Chief Justice for consideration and assignment of an uneven bench of not less than three Judges to hear and determine the Petition.
d. For avoidance of doubt, this certification does not constitute a determination on the merits of the Petition, including the constitutionality of sections 20 and 24 of the Prohibition of Female Genital Mutilation Act or the legality of any particular medical or investigative examination complained of by the Petitioners.
e. The costs of this application shall abide by the outcome of the Petition.
69. It is so ordered.
DATED, SIGNED AND DELIVERED AT NAROK THIS 14TH DAY OF AUGUST, 2026.
......................................................
CHARLES M. KARIUKI
JUDGE
IN THE HIGH COURT OF KENYA AT NAROK
CONSTITUTIONAL PETITION NO. E007 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
BETWEEN
SOFIA RAJAB (on her own behalf and on behalf of all women and girls who are victims or suspected victims of female genital mutilation (FGM) who have been arrested, charged and detained for offences under Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act) & 6 OTHERS...........................................PETITIONERS
VERSUS
THE ASSISTANT CHIEF, MOGOR VILLAGE & 10 OTHERS................................RESPONDENTS
AND
FEDERATION OF WOMEN LAWYERS IN KENYA (FIDA) & OTHERS................................PROPOSED AMICI CURIAE
RULING
INTRODUCTION
1. Before this Court is the Petitioners' Notice of Motion dated 20th March 2026, brought principally under Article 165(4) of the Constitution, seeking certification that this Petition raises substantial questions of law warranting the empanelment of an uneven bench of not less than three Judges.
2. The application is premised on the grounds appearing on its face and is supported by the affidavit of Nora Mbagathi sworn on 21st May 2026.
3. The application was uncontested.
4. The Petitioners contend that the Petition raises novel and substantial constitutional questions concerning the enforcement of the Prohibition of Female Genital Mutilation Act, the constitutional rights of women and girls who are victims or suspected victims of FGM, the legality and constitutionality of compulsory genital examinations undertaken in the course of criminal investigations, the use of evidence obtained through such examinations, and the constitutional validity or application of sections 20 and 24 of the Prohibition of Female Genital Mutilation Act.
5. The Petition consequently brings into sharp focus the relationship between the State's legitimate and constitutionally important obligation to eradicate FGM and its concurrent obligation to respect, protect and promote the dignity, bodily integrity, privacy, equality and fair trial rights of persons subjected to criminal investigation.
THE PETITIONERS' CASE
6. The Petitioners submit that the matter satisfies both limbs of Article 165(4) of the Constitution. First, they contend that it concerns alleged violations of several rights protected under the Bill of Rights, including equality and freedom from discrimination, human dignity, freedom and security of the person, privacy, freedom from cruel, inhuman or degrading treatment, fair trial rights and the rights of vulnerable persons.
7. Secondly, they contend that the Petition raises substantial questions of law whose determination transcends the circumstances of the individual Petitioners and has significant implications for women and girls throughout Kenya, particularly those suspected of having undergone FGM and thereafter subjected to arrest, detention, medical examination and prosecution.
8. It is further submitted that the Petition raises questions which have not been conclusively determined by Kenyan courts, including whether the State may, in the course of investigating alleged FGM offences, subject an individual to a compulsory genital examination without a sufficiently clear legal basis, appropriate safeguards and respect for constitutional rights.
ISSUE FOR DETERMINATION
9. The sole issue for determination is whether this matter raises a substantial question of law within the meaning of Article 165(4) of the Constitution to justify certification to the Honourable Chief Justice for empanelment of an uneven bench of not less than three Judges.
THE LAW ON CERTIFICATION UNDER ARTICLE 165(4)
10. Article 165(4) of the Constitution provides:
"Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice."
11. The Constitution does not define the expression "substantial question of law". The jurisprudence developed by the Kenyan courts therefore requires the Court to determine, on a case-by-case basis, whether the questions presented possess the degree of constitutional significance contemplated by Article 165(4).
12. In Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] eKLR, the Court of Appeal held that the word "substantial" bears the ordinary meaning of "considerable importance" and adopted, with appropriate modification, principles drawn from the Supreme Court's jurisprudence on certification. The Court stated, inter alia, that the issue should transcend the circumstances of the particular case, have significant bearing on the public interest, and involve a state of uncertainty in the law.
13. The Court of Appeal further emphasised that certification under Article 165(4) is a matter for judicial determination and that the applicant must identify and concisely set out the specific substantial question or questions of law said to arise.
14. The same approach was subsequently applied in Attorney General v Okiya Omtatah Okoiti & another [2019] KECA 774 (KLR), where the Court of Appeal considered the meaning of "substantial question of law" and referred approvingly to the test in Sir Chunilal V. Mehta & Sons Ltd v Century Spinning & Manufacturing Co Ltd, AIR 1962 SC 1314. The test asks, among other things, whether the question is of general public importance, directly and substantially affects the rights of the parties, remains unsettled, presents difficulty, or calls for consideration of alternative views.
15. In National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & another [2017] eKLR, the High Court similarly observed that a substantial question of law is more than an ordinary question of law. It may arise where the issue directly or indirectly affects substantial rights, is of general public importance, remains open or unsettled, is attended by difficulty, or calls for consideration of alternative legal views. The Court nevertheless cautioned that complexity or novelty, standing alone, does not automatically satisfy Article 165(4).
16. In Judicial Service Commission v National Assembly & 2 others [2017] eKLR, the High Court reiterated that the mere fact that a matter raises constitutional questions is insufficient. The Court must satisfy itself that the questions are substantial and fall within Article 165(3)(b) or (d). The Court may consider whether the matter raises a novel point, is complex, is likely to require substantial judicial consideration, has significant public interest, or raises questions of jurisprudential moment.
17. The Court is equally mindful of the caution expressed in Stanley Livondo v Attorney General [2020] KEHC 843 (KLR), that complexity of facts or law does not, by itself, make a matter one raising a substantial question of law. Certification is therefore not intended to become routine merely because a constitutional petition is lengthy, sensitive or attracts public attention.
18. The guiding principle, therefore, is not whether the Petition is merely important, difficult or controversial. The Court must determine whether the constitutional questions identified are sufficiently substantial, unsettled and consequential that their determination transcends the immediate dispute and has significant implications for constitutional jurisprudence or the public interest.
ANALYSIS
19. Against that legal framework, the Court has carefully considered the Petition, the Notice of Motion, the supporting affidavit and the constitutional and statutory provisions relied upon by the Petitioners.
20. The Court is satisfied that the Petition raises questions falling squarely within Article 165(3)(b) and (d) of the Constitution. The Petition concerns alleged violations of rights protected under the Bill of Rights and also calls for determination of whether conduct undertaken pursuant to, or purportedly under the authority of, legislation is consistent with the Constitution.
21. The first substantial question concerns the constitutional limits of investigative powers where the investigation requires intrusion into the intimate and private parts of the human body.
22. Articles 28 and 31 of the Constitution protect human dignity and privacy respectively. In contrast, Article 29 protects the freedom and security of the person, including freedom from torture and cruel, inhuman or degrading treatment. Article 50 further guarantees the right to a fair trial.
23. A compulsory genital examination is not an ordinary investigative act. It potentially involves an intrusion into bodily integrity, sexual privacy, dignity and personal autonomy. The constitutional question is therefore not merely whether an investigation into FGM is permissible, but whether the manner in which such an investigation is undertaken satisfies the constitutional requirements of legality, necessity, proportionality and procedural safeguards.
24. This question acquires particular significance in the present case because the Petitioners allege that some of the persons subjected to investigation are themselves victims or suspected victims of FGM.
25. The constitutional tension is therefore apparent. The State has a legitimate and constitutionally compelling obligation to protect women and girls from harmful practices and to enforce the law against FGM. That obligation, however, does not place persons suspected of being victims of FGM outside the protection of the Constitution.
26. The Supreme Court has repeatedly affirmed that all exercises of public power must conform to the Constitution. In Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others [2021] KESC 34 (KLR), the Supreme Court emphasised the centrality of constitutional rights and remedies in controlling the exercise of public power.
27. More directly relevant is PAK & another v Attorney General & 3 others [2022] KEHC 262 (KLR), in which the High Court considered the arrest and forced medical examination of a minor in the course of an investigation. The Court examined the conduct against Articles 25, 28, 29, 31 and 43 of the Constitution and found that the forced medical examination implicated fundamental rights including dignity, privacy, freedom and security of the person and freedom from cruel, inhuman and degrading treatment.
28. The significance of PAK is not that the facts are identical to the present Petition. They are not. Its significance is that it demonstrates that using a medical examination as an investigative tool can raise substantial constitutional questions where bodily integrity, privacy, dignity and security of the person are implicated.
29. The question presented in the present Petition therefore goes beyond the ordinary application of criminal procedure. It requires the Court to consider the constitutional boundaries of investigative power where the body of the person being investigated is itself the object of the investigation.
30. The second substantial question concerns the interaction between the Prohibition of Female Genital Mutilation Act and the Constitution.
31. The State's interest in prohibiting FGM is neither doubtful nor constitutionally insignificant. The Prohibition of Female Genital Mutilation Act was enacted to prohibit FGM and safeguard persons against violation of their mental and physical integrity through the practice. The Act criminalises the performance of FGM and related conduct, including aiding and abetting and failure to report an offence.
32. The constitutionality of the legislative framework has previously been considered in Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) [2021] KEHC 450 (KLR).
33. In Kamau, the High Court, sitting as a three-Judge bench, considered challenges to provisions of the Prohibition of FGM Act based on, inter alia, dignity, equality, culture, health and autonomy. The Court's determination demonstrates that the constitutional status and operation of the anti-FGM legislative framework raise questions capable of engaging several fundamental rights simultaneously.
34. The present Petition, however, raises a materially different question. It does not merely challenge Parliament's policy choice to prohibit FGM. It raises questions concerning the constitutional limits of the State's enforcement mechanisms, particularly where the persons subjected to investigation may themselves be victims or survivors.
35. That distinction is important. The question of whether FGM should be prohibited is substantially different from the question of whether, in enforcing that prohibition, the State may employ investigative methods that intrude upon bodily integrity, privacy and dignity, and, if so, under what safeguards and legal authority.
36. The third substantial question concerns the constitutional protection of vulnerable persons.
37. Article 21(3) of the Constitution requires all State organs and public officers, in the exercise of their functions, to address the needs of vulnerable groups within society. Article 53 provides additional protection to children, while Article 27 guarantees equality and freedom from discrimination.
38. Where the persons affected are women and girls who may themselves be survivors of a harmful cultural practice, the State's protective obligation must be considered together with its obligation to avoid secondary victimisation through its investigative and prosecutorial processes.
39. This issue is reinforced by Kenya's international and regional human-rights obligations. Article 2(5) and (6) of the Constitution incorporates general rules of international law and treaties or conventions ratified by Kenya into Kenyan law. The Maputo Protocol, particularly Article 5, requires States Parties to prohibit and condemn harmful practices affecting women and to take appropriate measures to eliminate them.
40. The constitutional question is therefore not simply whether Kenya has an obligation to eradicate FGM. It plainly does. The more difficult question is how that obligation is to be reconciled with the State's simultaneous obligations to respect dignity, privacy, bodily integrity, equality and fair trial rights.
41. The fourth substantial question concerns whether the use of evidence obtained through an intrusive medical or genital examination can be reconciled with the constitutional right to a fair trial.
42. Article 50(2)(l) protects an accused person's right to refuse to give self-incriminating evidence. Although the precise application of the privilege against self-incrimination to physical or medical evidence is itself a matter requiring careful legal analysis, the Petition raises an arguable constitutional question about the distinction between testimonial compulsion and compelled bodily evidence—the safeguards required when the State seeks to obtain evidence through intrusion into the body.
43. That question is not rendered insubstantial merely because existing criminal procedure may permit certain forms of examination or production of physical evidence. The constitutional issue is whether the statutory and procedural framework, as applied in the circumstances alleged by the Petitioners, satisfies the Constitution.
44. The fifth substantial question concerns the interpretation and application of sections 20 and 24 of the Prohibition of Female Genital Mutilation Act.
45. The Court must, however, make an important distinction at this interlocutory stage. Section 20 criminalises aiding, abetting, counselling or procuring FGM, while section 24 creates an offence for failure to report knowledge that FGM has been, is being, or is intended to be committed. Neither provision, on its face, expressly creates a power to conduct compulsory genital examinations.
46. Accordingly, the substantial constitutional question is not whether sections 20 and 24 expressly authorise compulsory genital examinations. Rather, it is whether the investigative practices complained of by the Petitioners, and the use or admissibility of evidence obtained through those practices, possess a sufficient legal basis and comply with Articles 28, 29, 31 and 50 of the Constitution.
47. The distinction is important because the present application concerns certification and not determination of the merits. The Court is not at this stage determining whether the impugned examinations occurred, whether they were lawful, whether any evidence was obtained through them, or whether sections 20 and 24 are unconstitutional.
48. Those are matters for the substantive hearing of the Petition.
49. The sixth consideration is the broader jurisprudential and public-interest dimension of the questions presented.
50. FGM remains an issue involving criminal law, public health, gender equality, children's rights, culture, bodily autonomy and human dignity. The legal framework consequently operates at the intersection of several constitutional values and rights.
51. Scholarly literature confirms the complexity of that intersection. Hannelore Van Bavel, in "Is Anti-FGM Legislation Cultural Imperialism? Interrogating Kenya's Prohibition of Female Genital Mutilation Act", Social & Legal Studies, Vol. 32, Issue 3 (2023), examines the development and contestation of Kenya's anti-FGM legislation and highlights the tensions between human-rights protection, cultural claims, local agency and the transnational anti-FGM movement.
52. Similarly, Caroline Omari Lichuma, in "Between Universalism and Cultural Relativism: The Dilemma of Consent to Female Genital Mutilation in the Tatu Kamau Case", Kabarak Journal of Law and Ethics, Vol. 6 (2022), identifies the tension between universal human-rights protection and claims founded upon culture, consent, dignity and autonomy in the Kenyan FGM litigation.
53. Frida A. Ombogo's University of Nairobi study, "Towards the Elimination of Female Genital Mutilation – An Appraisal of Kenya's Prohibition of Female Genital Mutilation Act, 2011" (2018), similarly examines the limits of criminalisation as a tool for eliminating FGM and argues for complementary approaches beyond criminal law alone.
54. More recent socio-legal scholarship has also examined the implementation of anti-FGM laws in Kenya, including the tension between coercive enforcement and community-level facilitation and the implications of Articles 2(5) and 2(6) of the Constitution and Article 5 of the Maputo Protocol.
55. The Court does not cite these scholarly works as binding legal authorities. Rather, they demonstrate that the questions raised in this Petition form part of a wider and continuing jurisprudential debate concerning the appropriate relationship between criminalisation, bodily integrity, autonomy, gender equality, cultural rights and the protection of women and girls.
56. The Court is also mindful of the findings of the American Bar Association Centre for Human Rights in its 2024 report, "Monitoring Prosecutions under the Prohibition of FGM Act in Kenya", which reviewed 68 criminal cases under the Act and reported concerns regarding the prosecution of victims of FGM themselves. While the report is not a judicial authority and does not determine the facts of this Petition, it underscores the wider public importance of ensuring that enforcement of anti-FGM laws does not inadvertently result in the criminal-justice system treating victims as offenders without appropriate legal and constitutional safeguards.
57. In the Court's view, these considerations demonstrate that the questions presented are not merely questions of fact or routine application of settled law. They engage the constitutional architecture governing the relationship between State enforcement power and fundamental rights.
58. The Court is therefore satisfied that the Petition raises questions which:
a. directly concern fundamental rights protected by the Bill of Rights;
b. involve the interpretation and application of Articles 21, 27, 28, 29, 31 and 50 of the Constitution;
c. raise questions concerning the constitutionality and application of legislation;
d. involve the limits of investigative power where bodily integrity and privacy are implicated;
e. concern the protection of women, girls and other vulnerable persons;
f. raise issues which have significant implications for law-enforcement agencies, prosecutors, medical practitioners and trial courts; and
g. have jurisprudential significance extending beyond the immediate parties.
59. The Court is particularly persuaded by the fact that the constitutional questions arising from compulsory or allegedly compulsory genital examinations in the investigation of FGM offences do not appear to have received a definitive determination by the superior courts in Kenya in the precise factual and statutory context presented by this Petition.
60. This is significant. As stated in Okiya Omtatah Okoiti v Anne Waiguru, uncertainty in the law and a question that transcends the circumstances of the particular case are material considerations in determining whether certification is warranted.
61. The Court nevertheless reiterates that the mere novelty, sensitivity or public interest of a matter does not automatically satisfy Article 165(4). What distinguishes the present Petition is the convergence of several constitutional questions concerning the limits of State power, bodily integrity, privacy, dignity, equality, fair trial rights and the enforcement of a statute designed to protect women and girls from a harmful practice.
62. The Petition therefore presents an appropriate case in which an expanded bench may consider and develop the jurisprudence governing the constitutional limits of investigative measures undertaken in the enforcement of anti-FGM legislation.
63. The Court is accordingly satisfied that the questions raised are of considerable constitutional importance and that their determination has the potential to contribute materially to the development of Kenyan constitutional jurisprudence.
64. The Court emphasises that certification does not amount to a determination of the merits of the Petition. Neither does it signify that the Petitioners will ultimately succeed. It merely signifies that the constitutional questions identified meet the threshold for consideration by an uneven bench under Article 165(4).
65. The Court further makes clear that nothing in this ruling should be understood as questioning the constitutionality or legitimacy of Kenya's prohibition of FGM. The State has a clear constitutional and international obligation to protect women and girls from harmful practices. The issue for determination is whether the means employed in enforcing that obligation conform to the Constitution.
66. In the circumstances, this Court is satisfied that the Petition raises substantial questions of law within the meaning of Article 165(4) of the Constitution.
DISPOSITION
67. Consequently, the Notice of Motion dated 20th March 2026 is merited.
68. Accordingly, the Court makes the following orders:
a. The Notice of Motion dated 20th March 2026 is hereby allowed.
b. This Court hereby certifies that Constitutional Petition No. E007 of 2025 raises substantial questions of law within the meaning of Article 165(4) of the Constitution.
c. The Deputy Registrar shall forthwith transmit the Court file together with a copy of this ruling to the Honourable the Chief Justice for consideration and assignment of an uneven bench of not less than three Judges to hear and determine the Petition.
d. For avoidance of doubt, this certification does not constitute a determination on the merits of the Petition, including the constitutionality of sections 20 and 24 of the Prohibition of Female Genital Mutilation Act or the legality of any particular medical or investigative examination complained of by the Petitioners.
e. The costs of this application shall abide by the outcome of the Petition.
69. It is so ordered.
DATED, SIGNED AND DELIVERED AT NAROK THIS 14TH DAY OF AUGUST, 2026.
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CHARLES M. KARIUKI
JUDGE