REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CONSTITUTIONAL PETITION NO. E007 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
IN THE MATTER OF VIOLATIONS OF ARTICLES 21(1), 21(3), 27(1), 27(2), 27(4), 28, 29(A), 29(C), 29(D), 29(F), 31 (A) & (C), 50(2)(A) AND 50(L) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF THE ULTRA VIRES APPLICATION OF SECTIONS 20 AND 24 OF THE PROHIBITION OF FEMALE GENITAL MUTILATION ACT, CAP 62 OF THE LAWS OF KENYA
AND
IN THE MATTER OF VIOLATIONS OF SECTIONS 3(B), (V), (F), (I), (K, (L), 6(1), 8(B), AND 11 OF THE VICTIM PROTECTION ACT CAP 79A OF THE LAWS OF KENYA
AND
IN THE MATTER OF VIOLATION OF ARTICLES 2 AND 5 OF THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA [THE MAPUTO PROTOCOL]
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
crimes under sections 20 &24 of the
Prohibition of Female Genital Mutilation Act) ….........................................1 ST PETITIONER MCN..................................................................................................................2 ND PETITIONER BK.....................................................................................................................3 RD PETITIONER
SR .....................................................................................................................4 TH PETITIONER
VC ....................................................................................................................5 TH PETITIONER
FK .....................................................................................................................6 TH PETITIONER
KATIBA INSTITUTE.....................................................................................7 TH PETITIONER
VERSUS
THE ASSISTANT CHIEF MOGOR VILLAGE
TRANS MARA EAST SUB-COUNTY, NAROK COUNTY……..……..1 ST RESPONDENT
KENYA POLICE EMURUA DIKIRR…..………………..………………2 ND RESPONDENT
EMURUA DIKIRR SUB-COUNTY HOSPITAL…….…………………3 RD RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS.................................. 4 TH RESPONDENT THE HONOURABLE ATTORNEY GENERAL ......................................5 TH RESPONDENT THE ANTI-FEMALE GENITAL MUTILATION BOARD….…………6 TH RESPONDENT
THE CABINET SECRETARY, MINISTRY OF
PUBLIC SERVICE, GENDER& AFFIRMATIVE ACTION…………..7 TH RESPONDENT
THE CABINET SECRETARY, MINISTRY OF HEALTH ….............. 8 TH RESPONDENT
THE CABINET SECRETARY, MINISTRY OF INTERIOR
AND NATIONAL ADMINISTRATION……………………………..9 TH RESPONDENT
THE INSPECTOR GENERAL OF POLICE………………………….10 TH RESPONDENT
THE CHIEF MAGISTRATE’S COURT, KILGORIS............................11 TH RESPONDENT AND
FEDERATION OF WOMEN LAWYERS
IN KENYA (FIDA)..............................................................1 ST PROPOSED AMICUS CURIA
THE INITIATIVE FOR STRATEGIC LITIGATION
IN AFRICA (ISLA)…………………………………………....2 ND PROPOSED AMICUS CURIAЕ
THE CLOONEY FOUNDATION FOR JUSTICE…...3 RD PROPOSED AMICUS CURIAE
HON. JANET RAMATOULIE SALLAH-NJIE …….3 RD PROPOSED AMICUS CURIAE
AND
EQUALITY NOW ……………………………………...INTENDED INTERESTED PARTY
RULING
22/05/2026
A. INTRODUCTION
1) Before this Court are several applications seeking leave to participate in these proceedings either as amici curiae or as interested parties in relation to the constitutional petition challenging the implementation and application of certain provisions of the Prohibition of Female Genital Mutilation Act, particularly Sections 20, 24, and 29 thereof. The petition raises grave constitutional and human rights questions concerning the arrest, prosecution, and alleged criminalisation of women and girls who are survivors of Female Genital Mutilation (FGM), and the extent to which such implementation comports with the Constitution of Kenya, the Victim Protection Act, and Kenya’s obligations under regional and international human rights instruments.
2) The applications before the Court include the Notice of Motion dated 27th January 2026 by the Federation of Women Lawyers in Kenya (FIDA-Kenya) and Initiative for Strategic Litigation in Africa (ISLA) seeking admission as joint amici curiae; the Notice of Motion dated 29th January 2026 by the Clooney Foundation for Justice seeking leave to participate as amicus curiae; the Notice of Motion dated 18th February 2026 by Equality Now seeking joinder as an interested party; and the Notice of Motion dated 20th February 2026 by Hon. Janet Ramatoulie Sallah-Njie seeking admission as amicus curiae.
3) The applicants contend that they possess specialised expertise in constitutional law, women’s rights, international human rights law, gender justice, and the elimination of harmful cultural practices, including FGM. They assert that their participation would assist the Court by providing comparative jurisprudence, international and regional legal standards, and evidence-based perspectives concerning the obligations of the State in protecting women and girls from violence while safeguarding survivors from re-victimisation.
4) The applications were supported by affidavits and written submissions detailing the applicants’ expertise, independence, and the relevance of their intended contributions. It was submitted that the proceedings raise novel and substantial constitutional questions with far-reaching implications for women and girls in Kenya and across the African continent. The applicants further maintained that their participation would aid the Court in developing jurisprudence concerning the rights of victims of violence, the State’s due diligence obligations, and the interpretation of the Maputo Protocol and related regional human rights instruments.
5) The Court has carefully considered the applications, affidavits, and submissions filed by the respective applicants.
B. PLEADINGS
i. The petition.
6) The Petition dated 16 June 2025 challenges the constitutionality of the State’s approach to combating Female Genital Mutilation (FGM) in Kenya, particularly the practice of arresting, prosecuting, and convicting alleged victims of FGM under Sections 24 and 29 of the Prohibition of Female Genital Mutilation Act. The Petitioners contend that Kenya is uniquely applying a “zero tolerance” anti-FGM policy in a manner that revictimizes women and girls who are themselves victims or suspected victims of FGM. They state that the process typically involves arrests by local administrators and police officers, followed by forced genital examinations conducted in government hospitals without consent, after which the medical findings are used as evidence in criminal prosecutions against the victims themselves, undermining their dignity and humanity.
7) The Petition explains that FGM is internationally recognised as a harmful cultural practice and a form of gender-based violence that violates the dignity, bodily autonomy, and reproductive health rights of women and girls. While acknowledging the need to eradicate FGM, the Petitioners argue that the State’s current enforcement model unlawfully targets victims instead of perpetrators. They rely heavily on the decision in KL v Republic [2016] eKLR , in which the High Court declared Section 24 of the Prohibition of Female Genital Mutilation Act vague and difficult to apply, and directed the Attorney General to review or repeal the provision. The Petitioners claim that despite that judgment, the impugned provision continues to be used to prosecute victims of FGM.
8) The Petition was filed by an advocate acting in the public interest and on behalf of victims and suspected victims of FGM, together with several women facing criminal charges before the Murkan Mobile Court at Kilgoris in Criminal Cases Nos. MCCR/E077/23, MCCR/E078/23, MCCR/E079/23 and MCCR/E080/23. The 7th Petitioner, Katiba Institute, joined the proceedings in its capacity as a public interest constitutional organisation. The Petitioners invoke Articles 22 and 258 of the Constitution, asserting standing to institute proceedings for the enforcement of constitutional rights and in the public interest.
9) The Petition names several State actors and institutions as Respondents, including local administrative officers, police officers, Emurua Dikirr Sub-County Hospital, the Office of the Director of Public Prosecutions, the Attorney General, the Anti-FGM Board, various Cabinet Secretaries, the Inspector General of Police, and the Chief Magistrate’s Court. The Petitioners allege that these Respondents collectively participated in unconstitutional conduct by arresting victims, compelling them to undergo genital examinations, and prosecuting them using evidence obtained through those examinations.
10) The factual basis of the Petition arises from incidents in December 2023 when the 2nd to 6th Petitioners were allegedly reported to police as having undergone FGM. They were subsequently arrested, taken to Emurua Dikirr Sub-County Hospital for genital examinations without consent, and later charged with failing to report the offence of FGM contrary to Sections 24 and 29 of the Act. The Petitioners contend that the examinations and prosecutions violated their constitutional rights to dignity, privacy, bodily integrity, health, equality, fair trial, and protection against self-incrimination.
11) The Petition sets out an extensive constitutional and international legal framework in support of its claims. It relies on numerous provisions of the Constitution of Kenya, including Articles 10, 21, 27, 28, 29, 31, 43, 48, 49, and 50, arguing that the Respondents failed to uphold and protect the rights of vulnerable women and girls. It also cites international and regional instruments such as the Universal Declaration of Human Rights, CEDAW, the Convention on the Rights of the Child, the ICCPR, the Convention Against Torture, the African Charter on Human and Peoples’ Rights, the Maputo Protocol, and the African Charter on the Rights and Welfare of the Child. The Petitioners particularly rely on international standards requiring States to protect victims of FGM rather than criminalise them.
12) The Petition further alleges specific constitutional violations by each Respondent. It accuses the Assistant Chief and police officers of unlawfully arresting victims instead of offering support services contemplated under Section 27 of the Act. The hospital and its medical officers are accused of conducting unconstitutional genital examinations without consent. The ODPP is alleged to have violated constitutional and statutory obligations by prosecuting victims and relying on unlawfully obtained medical evidence. The Attorney General is accused of failing to act on the High Court’s directive in KL v Republic to amend or repeal Section 24. The Anti-FGM Board and relevant Ministries are accused of failing to establish proper policies and safeguards to prevent revictimization of victims of FGM.
13) The Petitioners therefore seek a range of declaratory, injunctive, and supervisory reliefs. They ask the Court to declare that forced genital examinations and the use of evidence obtained through them are unconstitutional and violate the rights of the affected women. They also seek declarations that the criminal prosecutions against the 2nd to 6th Petitioners are unlawful, oppressive, and unconstitutional. Additionally, they seek orders terminating the pending criminal cases, prohibiting future prosecutions of FGM victims under the Act, banning forced genital examinations, excluding such evidence from criminal trials, expunging criminal records of victims previously convicted under similar circumstances, and directing the release of persons imprisoned or placed on probation as a result of such convictions. The Petition further seeks orders compelling State agencies to formulate guidelines on genital examinations and to report to the Court on measures taken to address wrongful prosecutions of FGM victims.
ii. The Notice of Motion dated 16 June 2025 (Petitioners’)
14) The Notice of Motion dated 16 June 2025 was filed by the Petitioners in a constitutional petition challenging the manner in which Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act are being enforced against women and girls alleged or suspected to have undergone female genital mutilation (FGM). Sofia Rajab brought the application on her own behalf and on behalf of other women and girls said to be victims or suspected victims of FGM who had allegedly been arrested, charged, and detained under the Act, together with other individual petitioners and Katiba Institute.
15) In the application, the Petitioners sought several interim and conservatory orders pending the hearing and determination of both the application and the substantive petition. First, they prayed that the application and the petition be certified urgent and heard on a priority basis. They also sought leave for the 2nd to 6th Petitioners to prosecute the proceedings using only their initials instead of their full names. Further, they requested that their identities be concealed in all pleadings, rulings, judgments, notices, and court proceedings due to the sensitive nature of the allegations relating to FGM.
16) The Petitioners further sought conservatory orders staying and prohibiting further proceedings in Criminal Cases Nos. MCCR/E077/23, MCCR/E078/23, MCCR/E079/23, and MCCR/E080/23 are pending before the Murkan Mobile Court within the jurisdiction of the Kilgoris Law Courts. They contended that unless the proceedings were halted, the affected women risked continued prosecution and possible imprisonment under Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act.
17) Additionally, the applicants sought injunctive orders restraining the State, its organs, and relevant public authorities from conducting forced genital examinations on suspected victims of FGM. They argued that such examinations lacked any legal basis and violated constitutional rights to dignity, privacy, bodily integrity, freedom, and security of the person, as well as the right to a fair trial, under Articles 28, 29, 31, and 50 of the Constitution. They also sought orders prohibiting the Office of the Director of Public Prosecutions from instituting charges against alleged victims of FGM under Sections 20 and 24 of the Act pending the determination of the petition.
18) The application was grounded on allegations that the State had adopted and implemented a “zero tolerance” policy on FGM that effectively criminalised and re-victimised women and girls who were themselves victims of the practice. The Petitioners argued that Kenya was uniquely prosecuting alleged victims of FGM and subjecting them to invasive genital examinations without any statutory or regulatory framework authorising such procedures. According to the Petitioners, these actions violated both domestic constitutional protections and international human rights obligations, including obligations under the Maputo Protocol.
19) The applicants further relied on the Joint General Comment on Female Genital Mutilation issued in June 2023 by the African Commission on Human and Peoples’ Rights and the African Committee on the Rights and Welfare of the Child, which cautions States against framing laws in a manner that exposes victims of FGM to criminal prosecution. They asserted that victims of FGM ought to receive protection, support, and access to justice rather than criminal sanctions.
20) The Petitioners demonstrated a prima facie case of ongoing and imminent violations of constitutional rights, emphasising that without interim orders, the petition risks becoming moot as women face immediate prosecution and potential loss of liberty, highlighting the urgent need for judicial intervention to protect public interest.
21) The Supporting Affidavit, sworn on 16 June 2025 by Sofia Rajab, an Advocate of the High Court of Kenya with extensive expertise in sexual and reproductive rights and gender-based violence, was filed to challenge the constitutionality and enforcement of Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act, underscoring her authority and relevance to the case.
22) In her affidavit, she deponed that the nature of offences relating to female genital mutilation (FGM) necessitated the protection of the identities of the 2nd to 6th Petitioners because of the sensitivity and stigma surrounding such allegations. She asserted that the affected petitioners had established a prima facie case showing violations of their constitutional rights and were facing criminal prosecution under Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act. These provisions were themselves being challenged as unconstitutional in the petition.
23) She cited specific incidents from August and November 2024 in Meru and Nakuru where teenage girls and women were arrested and detained for alleged FGM, illustrating a persistent pattern of State violations and underscoring the urgency of the conservatory orders sought to prevent further harm.
24) Sofia Rajab explained that the Prohibition of Female Genital Mutilation Act, enacted in 2011, was intended to protect women and girls from FGM and provide support services to victims, rather than criminalise them. She relied on parliamentary Hansard reports to show that the legislative intention behind the Act was protective rather than punitive. She further stated that she had conducted extensive legal research on prosecutions under the Act since 2016 and had personally represented women and girls charged under Sections 20 and 24 in several criminal matters, during which the accused persons had allegedly been subjected to mandatory genital examinations for evidentiary purposes.
25) The affidavit also highlighted her involvement in constitutional litigation concerning FGM, including participation in the case of Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) (Constitutional Petition No. 244 of 2019) [2021] KEHC 450 (KLR). She referred to findings made by the three-judge bench in that matter, acknowledging that women who undergo FGM are often subjected to social pressure, stigma, coercion, and vulnerability within their communities, thereby undermining assumptions that adult women voluntarily consent to the practice.
26) The deponent further averred that she had participated in various international and regional human rights forums on FGM, including expert meetings convened by the Office of the United Nations High Commissioner for Human Rights pursuant to resolutions aimed at eliminating FGM. She relied on reports from those meetings to demonstrate concerns over punitive enforcement approaches that revictimize women and girls who have undergone FGM. She also referred to her academic dissertation titled “The Implications of Prosecuting Victims of Female Genital Mutilation on Women’s Sexual and Reproductive Autonomy in Kenya,” in which she documented instances of compulsory genital examinations and prosecutions of victims of FGM and analysed their impact on constitutional rights such as dignity, privacy, equality before the law, presumption of innocence, and protection against self-incrimination.
27) The affidavit further relied on the Joint General Comment on Female Genital Mutilation published in June 2023 by the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child. Sofia Rajab stated that the Joint General Comment expressly cautioned States against framing laws in a manner that exposed victims of FGM to criminal prosecution or characterised them as participants in the crime. According to the affidavit, the General Comment emphasised the need to distinguish perpetrators from victims and to ensure that victims were not unfairly criminalised.
28) The deponent also described her participation in national forums convened by the Anti-FGM Board and other agencies to discuss implementation of the former President’s directive to end FGM by 2022. She contended that although anti-FGM enforcement had intensified following the presidential directive, State agencies had failed to address the increasing arrests and prosecutions of victims of FGM. She criticised the Office of the Director of Public Prosecutions for adopting prosecutorial policies that, in her view, conflicted with public interest and the DPP’s own charging guidelines by targeting victims rather than perpetrators.
29) Additionally, Sofia Rajab deponed that between 2023 and 2024 she led a trial monitoring project covering sixty-eight FGM-related criminal cases before the Narok, Bomet, Kilgoris, and Murkan Mobile Courts. She stated that the project revealed widespread use of forced and non-consensual genital examinations on women and girls suspected of undergoing FGM despite the absence of any legal framework authorising such procedures. According to her findings, the criminal implementation of the Prohibition of Female Genital Mutilation Act had resulted in the punishment of victims more than perpetrators. It had normalised intrusive examinations as standard prosecutorial practice.
30) The affidavit further asserted that the respondents, individually and collectively, had failed to protect women and girls from FGM and had instead revictimized them through arbitrary arrests, compulsory genital examinations, and criminal prosecutions under the guise of deterrence. She argued that such actions violated constitutional rights under Articles 28, 29, 31, and 50 of the Constitution, as well as protections afforded under the Victim Protection Act and Section 27 of the Prohibition of Female Genital Mutilation Act.
31) Finally, the deponent challenged the continued reliance by the Director of Public Prosecutions on Section 24 of the Act concerning failure to report FGM offences, despite the High Court decision in KL v Republic [2016] eKLR, where the court criticised the vagueness and potential injustice arising from the provision. She contended that continued prosecutions under that section demonstrated systemic disregard of constitutional safeguards and judicial guidance. The affidavit concluded by affirming that the facts stated therein were true to the best of her knowledge, information, and belief.
32) The affidavit sworn on 16 June 2025 by MCN was filed in support of the Petition and the Notice of Motion challenging the constitutionality and enforcement of Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act. MCN described herself as an adult woman and resident of Narok County who was personally affected by the impugned provisions and therefore competent to depone to the matters raised in the proceedings.
33) In her affidavit, MCN stated that on 2 December 2023, she was arrested at Kabolecho Village in Trans Mara East Sub-County within Narok County. Following her arrest, she was charged with the offence of being aware that an act of female genital mutilation had been committed on herself and failing to report the same to a law enforcement officer, contrary to Section 24 as read together with Section 29 of the Prohibition of Female Genital Mutilation Act No. 32 of 2011. She annexed copies of the charge sheet and police file to support her averments.
34) She further deponed that on the day following her arrest, police officers escorted her to the Emurua Dikirr Sub-County Hospital, where she underwent a genital examination and a P3 form was completed, indicating that there had been total removal of the clitoris. MCN asserted that she did not consent to the genital examination and considered the procedure to have been conducted against her will.
35) According to the affidavit, criminal proceedings against her remained pending before the Kilgoris Magistrates Court in Criminal Case No. MCCR/E077/23. She stated that her advocates had advised her that Sections 24 and 29 of the Prohibition of Female Genital Mutilation Act were unclear and unconstitutional because they effectively criminalised victims of female genital mutilation by prosecuting persons who had themselves undergone the procedure.
36) MCN further expressed fear that, being a poor woman, she risked imprisonment if the prosecution proceeded. She maintained that the criminal process had caused her distress and uncertainty, and she urged the court to intervene by granting the orders sought in the petition and application. The affidavit concluded with her affirmation that the matters deponed to were true and within her knowledge, information, and belief.
37) The affidavits sworn by B.K, S.R, V.C, and F.K on 18 October 2024, together with the affidavit sworn by Nora Mbagathi on 16 June 2025, were filed in support of the Petition and Notice of Motion challenging the constitutionality and enforcement of Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act. The affidavits collectively narrated the experiences of the individual petitioners who had allegedly been arrested and prosecuted as victims or suspected victims of female genital mutilation (FGM). Further, they supported the broader constitutional and public interest concerns raised in the petition.
38) In her affidavit, B.K, a 20-year-old woman residing in Narok County, stated that she was arrested on 4 December 2023 at Mogor Village in Trans Mara East Sub-County. She deponed that she was charged with being aware that an offence of female genital mutilation had been committed on herself and failing to report it to a law enforcement officer contrary to Section 24 as read with Section 29 of the Prohibition of Female Genital Mutilation Act. She further stated that police officers escorted her to the Emurua Dikirr Sub-County Hospital, where she underwent a genital examination without her consent. According to the medical findings recorded in the P3 form, there were fresh cut wounds on both the left and right labia minora caused by a sharp object. She stated that criminal proceedings against her remained pending before the Kilgoris Magistrates Court in Criminal Case No. MCCR/E080/23 expressed fear of imprisonment because of her socio-economic circumstances. She further deponed that counsel had advised her that the impugned statutory provisions were unconstitutional because they effectively criminalised victims of FGM.
39) Similarly, S.R, also a 20-year-old resident of Narok County, deponed that she was arrested on 4 December 2023 at Mogor Village within Trans Mara East Sub-County and charged with failing to report an offence of FGM allegedly committed on herself contrary to Section 24 as read with Section 29 of the Act. She stated that she, too, was taken to Emurua Dikirr Sub-County Hospital, where a genital examination was conducted without her consent, and the medical examination allegedly revealed fresh cut wounds on the left and right labia minora. S.R stated that her criminal case, MCCR/E079/23, remained pending before the Kilgoris Magistrates Court and that she feared imprisonment if convicted. She further contended that the challenged provisions were vague and unconstitutional because they criminalised women who were themselves victims of FGM.
40) In her affidavit, V.C, a 19-year-old woman from Narok County, stated that she was arrested on 4 December 2023 at Mogor Village in Trans Mara East Sub-County and jointly charged with F.K for allegedly failing to report an offence of female genital mutilation committed on herself contrary to Section 24 as read together with Section 29 of the Act. She deponed that police officers escorted her to Emurua Dikirr Sub-County Hospital, where she underwent a genital examination without her consent. According to the P3 form, the examination allegedly showed the presence of an old scar at the edge of the clitoris caused by a sharp object. She stated that proceedings against her were pending before the Kilgoris Magistrates Court in Criminal Case No. MCCR/E078/23. Like the other petitioners, she maintained that the impugned provisions improperly criminalised victims of FGM and should therefore be declared unconstitutional.
41) F.K, another adult woman residing in Narok County, swore an affidavit substantially similar to that of V.C. She stated that she had been arrested on 4 December 2023 at Mogor Village and jointly charged with V.C for allegedly failing to report an offence of female genital mutilation committed on herself contrary to Sections 24 and 29 of the Prohibition of Female Genital Mutilation Act. She confirmed that criminal proceedings against her remained pending before the Kilgoris Magistrates Court in Criminal Case No. MCCR/E078/23. She further deponed that counsel had advised her that the challenged statutory provisions were unconstitutional because they effectively treated victims of FGM as offenders.
42) The affidavit sworn by Nora Mbagathi on 16 June 2025 was filed on behalf of Katiba Institute, the 7th Petitioner. Nora Mbagathi described herself as the organisation's Executive Director. She stated that she had read and understood the Petition, Notice of Motion, and all the supporting affidavits sworn by Sofia Rajab and the 2nd to 6th Petitioners. She expressly confirmed that she agreed with and supported the contents of those affidavits. Her affidavit primarily served to affirm the Katiba Institute's institutional support for the petition and the conservatory orders sought by the applicants.
C. Directions and orders of the court.
43) On 18 June 2025, the Court considered the Notice of Motion dated 16 June 2025 filed under a certificate of urgency together with the supp
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IN THE HIGH COURT OF KENYA AT NAROK
CONSTITUTIONAL PETITION NO. E007 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
IN THE MATTER OF VIOLATIONS OF ARTICLES 21(1), 21(3), 27(1), 27(2), 27(4), 28, 29(A), 29(C), 29(D), 29(F), 31 (A) & (C), 50(2)(A) AND 50(L) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF THE ULTRA VIRES APPLICATION OF SECTIONS 20 AND 24 OF THE PROHIBITION OF FEMALE GENITAL MUTILATION ACT, CAP 62 OF THE LAWS OF KENYA
AND
IN THE MATTER OF VIOLATIONS OF SECTIONS 3(B), (V), (F), (I), (K, (L), 6(1), 8(B), AND 11 OF THE VICTIM PROTECTION ACT CAP 79A OF THE LAWS OF KENYA
AND
IN THE MATTER OF VIOLATION OF ARTICLES 2 AND 5 OF THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA [THE MAPUTO PROTOCOL]
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
crimes under sections 20 &24 of the
Prohibition of Female Genital Mutilation Act) ….........................................1 ST PETITIONER MCN..................................................................................................................2 ND PETITIONER BK.....................................................................................................................3 RD PETITIONER
SR .....................................................................................................................4 TH PETITIONER
VC ....................................................................................................................5 TH PETITIONER
FK .....................................................................................................................6 TH PETITIONER
KATIBA INSTITUTE.....................................................................................7 TH PETITIONER
VERSUS
THE ASSISTANT CHIEF MOGOR VILLAGE
TRANS MARA EAST SUB-COUNTY, NAROK COUNTY……..……..1 ST RESPONDENT
KENYA POLICE EMURUA DIKIRR…..………………..………………2 ND RESPONDENT
EMURUA DIKIRR SUB-COUNTY HOSPITAL…….…………………3 RD RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS.................................. 4 TH RESPONDENT THE HONOURABLE ATTORNEY GENERAL ......................................5 TH RESPONDENT THE ANTI-FEMALE GENITAL MUTILATION BOARD….…………6 TH RESPONDENT
THE CABINET SECRETARY, MINISTRY OF
PUBLIC SERVICE, GENDER& AFFIRMATIVE ACTION…………..7 TH RESPONDENT
THE CABINET SECRETARY, MINISTRY OF HEALTH ….............. 8 TH RESPONDENT
THE CABINET SECRETARY, MINISTRY OF INTERIOR
AND NATIONAL ADMINISTRATION……………………………..9 TH RESPONDENT
THE INSPECTOR GENERAL OF POLICE………………………….10 TH RESPONDENT
THE CHIEF MAGISTRATE’S COURT, KILGORIS............................11 TH RESPONDENT AND
FEDERATION OF WOMEN LAWYERS
IN KENYA (FIDA)..............................................................1 ST PROPOSED AMICUS CURIA
THE INITIATIVE FOR STRATEGIC LITIGATION
IN AFRICA (ISLA)…………………………………………....2 ND PROPOSED AMICUS CURIAЕ
THE CLOONEY FOUNDATION FOR JUSTICE…...3 RD PROPOSED AMICUS CURIAE
HON. JANET RAMATOULIE SALLAH-NJIE …….3 RD PROPOSED AMICUS CURIAE
AND
EQUALITY NOW ……………………………………...INTENDED INTERESTED PARTY
RULING
22/05/2026
A. INTRODUCTION
1) Before this Court are several applications seeking leave to participate in these proceedings either as amici curiae or as interested parties in relation to the constitutional petition challenging the implementation and application of certain provisions of the Prohibition of Female Genital Mutilation Act, particularly Sections 20, 24, and 29 thereof. The petition raises grave constitutional and human rights questions concerning the arrest, prosecution, and alleged criminalisation of women and girls who are survivors of Female Genital Mutilation (FGM), and the extent to which such implementation comports with the Constitution of Kenya, the Victim Protection Act, and Kenya’s obligations under regional and international human rights instruments.
2) The applications before the Court include the Notice of Motion dated 27th January 2026 by the Federation of Women Lawyers in Kenya (FIDA-Kenya) and Initiative for Strategic Litigation in Africa (ISLA) seeking admission as joint amici curiae; the Notice of Motion dated 29th January 2026 by the Clooney Foundation for Justice seeking leave to participate as amicus curiae; the Notice of Motion dated 18th February 2026 by Equality Now seeking joinder as an interested party; and the Notice of Motion dated 20th February 2026 by Hon. Janet Ramatoulie Sallah-Njie seeking admission as amicus curiae.
3) The applicants contend that they possess specialised expertise in constitutional law, women’s rights, international human rights law, gender justice, and the elimination of harmful cultural practices, including FGM. They assert that their participation would assist the Court by providing comparative jurisprudence, international and regional legal standards, and evidence-based perspectives concerning the obligations of the State in protecting women and girls from violence while safeguarding survivors from re-victimisation.
4) The applications were supported by affidavits and written submissions detailing the applicants’ expertise, independence, and the relevance of their intended contributions. It was submitted that the proceedings raise novel and substantial constitutional questions with far-reaching implications for women and girls in Kenya and across the African continent. The applicants further maintained that their participation would aid the Court in developing jurisprudence concerning the rights of victims of violence, the State’s due diligence obligations, and the interpretation of the Maputo Protocol and related regional human rights instruments.
5) The Court has carefully considered the applications, affidavits, and submissions filed by the respective applicants.
B. PLEADINGS
i. The petition.
6) The Petition dated 16 June 2025 challenges the constitutionality of the State’s approach to combating Female Genital Mutilation (FGM) in Kenya, particularly the practice of arresting, prosecuting, and convicting alleged victims of FGM under Sections 24 and 29 of the Prohibition of Female Genital Mutilation Act. The Petitioners contend that Kenya is uniquely applying a “zero tolerance” anti-FGM policy in a manner that revictimizes women and girls who are themselves victims or suspected victims of FGM. They state that the process typically involves arrests by local administrators and police officers, followed by forced genital examinations conducted in government hospitals without consent, after which the medical findings are used as evidence in criminal prosecutions against the victims themselves, undermining their dignity and humanity.
7) The Petition explains that FGM is internationally recognised as a harmful cultural practice and a form of gender-based violence that violates the dignity, bodily autonomy, and reproductive health rights of women and girls. While acknowledging the need to eradicate FGM, the Petitioners argue that the State’s current enforcement model unlawfully targets victims instead of perpetrators. They rely heavily on the decision in KL v Republic [2016] eKLR , in which the High Court declared Section 24 of the Prohibition of Female Genital Mutilation Act vague and difficult to apply, and directed the Attorney General to review or repeal the provision. The Petitioners claim that despite that judgment, the impugned provision continues to be used to prosecute victims of FGM.
8) The Petition was filed by an advocate acting in the public interest and on behalf of victims and suspected victims of FGM, together with several women facing criminal charges before the Murkan Mobile Court at Kilgoris in Criminal Cases Nos. MCCR/E077/23, MCCR/E078/23, MCCR/E079/23 and MCCR/E080/23. The 7th Petitioner, Katiba Institute, joined the proceedings in its capacity as a public interest constitutional organisation. The Petitioners invoke Articles 22 and 258 of the Constitution, asserting standing to institute proceedings for the enforcement of constitutional rights and in the public interest.
9) The Petition names several State actors and institutions as Respondents, including local administrative officers, police officers, Emurua Dikirr Sub-County Hospital, the Office of the Director of Public Prosecutions, the Attorney General, the Anti-FGM Board, various Cabinet Secretaries, the Inspector General of Police, and the Chief Magistrate’s Court. The Petitioners allege that these Respondents collectively participated in unconstitutional conduct by arresting victims, compelling them to undergo genital examinations, and prosecuting them using evidence obtained through those examinations.
10) The factual basis of the Petition arises from incidents in December 2023 when the 2nd to 6th Petitioners were allegedly reported to police as having undergone FGM. They were subsequently arrested, taken to Emurua Dikirr Sub-County Hospital for genital examinations without consent, and later charged with failing to report the offence of FGM contrary to Sections 24 and 29 of the Act. The Petitioners contend that the examinations and prosecutions violated their constitutional rights to dignity, privacy, bodily integrity, health, equality, fair trial, and protection against self-incrimination.
11) The Petition sets out an extensive constitutional and international legal framework in support of its claims. It relies on numerous provisions of the Constitution of Kenya, including Articles 10, 21, 27, 28, 29, 31, 43, 48, 49, and 50, arguing that the Respondents failed to uphold and protect the rights of vulnerable women and girls. It also cites international and regional instruments such as the Universal Declaration of Human Rights, CEDAW, the Convention on the Rights of the Child, the ICCPR, the Convention Against Torture, the African Charter on Human and Peoples’ Rights, the Maputo Protocol, and the African Charter on the Rights and Welfare of the Child. The Petitioners particularly rely on international standards requiring States to protect victims of FGM rather than criminalise them.
12) The Petition further alleges specific constitutional violations by each Respondent. It accuses the Assistant Chief and police officers of unlawfully arresting victims instead of offering support services contemplated under Section 27 of the Act. The hospital and its medical officers are accused of conducting unconstitutional genital examinations without consent. The ODPP is alleged to have violated constitutional and statutory obligations by prosecuting victims and relying on unlawfully obtained medical evidence. The Attorney General is accused of failing to act on the High Court’s directive in KL v Republic to amend or repeal Section 24. The Anti-FGM Board and relevant Ministries are accused of failing to establish proper policies and safeguards to prevent revictimization of victims of FGM.
13) The Petitioners therefore seek a range of declaratory, injunctive, and supervisory reliefs. They ask the Court to declare that forced genital examinations and the use of evidence obtained through them are unconstitutional and violate the rights of the affected women. They also seek declarations that the criminal prosecutions against the 2nd to 6th Petitioners are unlawful, oppressive, and unconstitutional. Additionally, they seek orders terminating the pending criminal cases, prohibiting future prosecutions of FGM victims under the Act, banning forced genital examinations, excluding such evidence from criminal trials, expunging criminal records of victims previously convicted under similar circumstances, and directing the release of persons imprisoned or placed on probation as a result of such convictions. The Petition further seeks orders compelling State agencies to formulate guidelines on genital examinations and to report to the Court on measures taken to address wrongful prosecutions of FGM victims.
ii. The Notice of Motion dated 16 June 2025 (Petitioners’)
14) The Notice of Motion dated 16 June 2025 was filed by the Petitioners in a constitutional petition challenging the manner in which Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act are being enforced against women and girls alleged or suspected to have undergone female genital mutilation (FGM). Sofia Rajab brought the application on her own behalf and on behalf of other women and girls said to be victims or suspected victims of FGM who had allegedly been arrested, charged, and detained under the Act, together with other individual petitioners and Katiba Institute.
15) In the application, the Petitioners sought several interim and conservatory orders pending the hearing and determination of both the application and the substantive petition. First, they prayed that the application and the petition be certified urgent and heard on a priority basis. They also sought leave for the 2nd to 6th Petitioners to prosecute the proceedings using only their initials instead of their full names. Further, they requested that their identities be concealed in all pleadings, rulings, judgments, notices, and court proceedings due to the sensitive nature of the allegations relating to FGM.
16) The Petitioners further sought conservatory orders staying and prohibiting further proceedings in Criminal Cases Nos. MCCR/E077/23, MCCR/E078/23, MCCR/E079/23, and MCCR/E080/23 are pending before the Murkan Mobile Court within the jurisdiction of the Kilgoris Law Courts. They contended that unless the proceedings were halted, the affected women risked continued prosecution and possible imprisonment under Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act.
17) Additionally, the applicants sought injunctive orders restraining the State, its organs, and relevant public authorities from conducting forced genital examinations on suspected victims of FGM. They argued that such examinations lacked any legal basis and violated constitutional rights to dignity, privacy, bodily integrity, freedom, and security of the person, as well as the right to a fair trial, under Articles 28, 29, 31, and 50 of the Constitution. They also sought orders prohibiting the Office of the Director of Public Prosecutions from instituting charges against alleged victims of FGM under Sections 20 and 24 of the Act pending the determination of the petition.
18) The application was grounded on allegations that the State had adopted and implemented a “zero tolerance” policy on FGM that effectively criminalised and re-victimised women and girls who were themselves victims of the practice. The Petitioners argued that Kenya was uniquely prosecuting alleged victims of FGM and subjecting them to invasive genital examinations without any statutory or regulatory framework authorising such procedures. According to the Petitioners, these actions violated both domestic constitutional protections and international human rights obligations, including obligations under the Maputo Protocol.
19) The applicants further relied on the Joint General Comment on Female Genital Mutilation issued in June 2023 by the African Commission on Human and Peoples’ Rights and the African Committee on the Rights and Welfare of the Child, which cautions States against framing laws in a manner that exposes victims of FGM to criminal prosecution. They asserted that victims of FGM ought to receive protection, support, and access to justice rather than criminal sanctions.
20) The Petitioners demonstrated a prima facie case of ongoing and imminent violations of constitutional rights, emphasising that without interim orders, the petition risks becoming moot as women face immediate prosecution and potential loss of liberty, highlighting the urgent need for judicial intervention to protect public interest.
21) The Supporting Affidavit, sworn on 16 June 2025 by Sofia Rajab, an Advocate of the High Court of Kenya with extensive expertise in sexual and reproductive rights and gender-based violence, was filed to challenge the constitutionality and enforcement of Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act, underscoring her authority and relevance to the case.
22) In her affidavit, she deponed that the nature of offences relating to female genital mutilation (FGM) necessitated the protection of the identities of the 2nd to 6th Petitioners because of the sensitivity and stigma surrounding such allegations. She asserted that the affected petitioners had established a prima facie case showing violations of their constitutional rights and were facing criminal prosecution under Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act. These provisions were themselves being challenged as unconstitutional in the petition.
23) She cited specific incidents from August and November 2024 in Meru and Nakuru where teenage girls and women were arrested and detained for alleged FGM, illustrating a persistent pattern of State violations and underscoring the urgency of the conservatory orders sought to prevent further harm.
24) Sofia Rajab explained that the Prohibition of Female Genital Mutilation Act, enacted in 2011, was intended to protect women and girls from FGM and provide support services to victims, rather than criminalise them. She relied on parliamentary Hansard reports to show that the legislative intention behind the Act was protective rather than punitive. She further stated that she had conducted extensive legal research on prosecutions under the Act since 2016 and had personally represented women and girls charged under Sections 20 and 24 in several criminal matters, during which the accused persons had allegedly been subjected to mandatory genital examinations for evidentiary purposes.
25) The affidavit also highlighted her involvement in constitutional litigation concerning FGM, including participation in the case of Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) (Constitutional Petition No. 244 of 2019) [2021] KEHC 450 (KLR). She referred to findings made by the three-judge bench in that matter, acknowledging that women who undergo FGM are often subjected to social pressure, stigma, coercion, and vulnerability within their communities, thereby undermining assumptions that adult women voluntarily consent to the practice.
26) The deponent further averred that she had participated in various international and regional human rights forums on FGM, including expert meetings convened by the Office of the United Nations High Commissioner for Human Rights pursuant to resolutions aimed at eliminating FGM. She relied on reports from those meetings to demonstrate concerns over punitive enforcement approaches that revictimize women and girls who have undergone FGM. She also referred to her academic dissertation titled “The Implications of Prosecuting Victims of Female Genital Mutilation on Women’s Sexual and Reproductive Autonomy in Kenya,” in which she documented instances of compulsory genital examinations and prosecutions of victims of FGM and analysed their impact on constitutional rights such as dignity, privacy, equality before the law, presumption of innocence, and protection against self-incrimination.
27) The affidavit further relied on the Joint General Comment on Female Genital Mutilation published in June 2023 by the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child. Sofia Rajab stated that the Joint General Comment expressly cautioned States against framing laws in a manner that exposed victims of FGM to criminal prosecution or characterised them as participants in the crime. According to the affidavit, the General Comment emphasised the need to distinguish perpetrators from victims and to ensure that victims were not unfairly criminalised.
28) The deponent also described her participation in national forums convened by the Anti-FGM Board and other agencies to discuss implementation of the former President’s directive to end FGM by 2022. She contended that although anti-FGM enforcement had intensified following the presidential directive, State agencies had failed to address the increasing arrests and prosecutions of victims of FGM. She criticised the Office of the Director of Public Prosecutions for adopting prosecutorial policies that, in her view, conflicted with public interest and the DPP’s own charging guidelines by targeting victims rather than perpetrators.
29) Additionally, Sofia Rajab deponed that between 2023 and 2024 she led a trial monitoring project covering sixty-eight FGM-related criminal cases before the Narok, Bomet, Kilgoris, and Murkan Mobile Courts. She stated that the project revealed widespread use of forced and non-consensual genital examinations on women and girls suspected of undergoing FGM despite the absence of any legal framework authorising such procedures. According to her findings, the criminal implementation of the Prohibition of Female Genital Mutilation Act had resulted in the punishment of victims more than perpetrators. It had normalised intrusive examinations as standard prosecutorial practice.
30) The affidavit further asserted that the respondents, individually and collectively, had failed to protect women and girls from FGM and had instead revictimized them through arbitrary arrests, compulsory genital examinations, and criminal prosecutions under the guise of deterrence. She argued that such actions violated constitutional rights under Articles 28, 29, 31, and 50 of the Constitution, as well as protections afforded under the Victim Protection Act and Section 27 of the Prohibition of Female Genital Mutilation Act.
31) Finally, the deponent challenged the continued reliance by the Director of Public Prosecutions on Section 24 of the Act concerning failure to report FGM offences, despite the High Court decision in KL v Republic [2016] eKLR, where the court criticised the vagueness and potential injustice arising from the provision. She contended that continued prosecutions under that section demonstrated systemic disregard of constitutional safeguards and judicial guidance. The affidavit concluded by affirming that the facts stated therein were true to the best of her knowledge, information, and belief.
32) The affidavit sworn on 16 June 2025 by MCN was filed in support of the Petition and the Notice of Motion challenging the constitutionality and enforcement of Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act. MCN described herself as an adult woman and resident of Narok County who was personally affected by the impugned provisions and therefore competent to depone to the matters raised in the proceedings.
33) In her affidavit, MCN stated that on 2 December 2023, she was arrested at Kabolecho Village in Trans Mara East Sub-County within Narok County. Following her arrest, she was charged with the offence of being aware that an act of female genital mutilation had been committed on herself and failing to report the same to a law enforcement officer, contrary to Section 24 as read together with Section 29 of the Prohibition of Female Genital Mutilation Act No. 32 of 2011. She annexed copies of the charge sheet and police file to support her averments.
34) She further deponed that on the day following her arrest, police officers escorted her to the Emurua Dikirr Sub-County Hospital, where she underwent a genital examination and a P3 form was completed, indicating that there had been total removal of the clitoris. MCN asserted that she did not consent to the genital examination and considered the procedure to have been conducted against her will.
35) According to the affidavit, criminal proceedings against her remained pending before the Kilgoris Magistrates Court in Criminal Case No. MCCR/E077/23. She stated that her advocates had advised her that Sections 24 and 29 of the Prohibition of Female Genital Mutilation Act were unclear and unconstitutional because they effectively criminalised victims of female genital mutilation by prosecuting persons who had themselves undergone the procedure.
36) MCN further expressed fear that, being a poor woman, she risked imprisonment if the prosecution proceeded. She maintained that the criminal process had caused her distress and uncertainty, and she urged the court to intervene by granting the orders sought in the petition and application. The affidavit concluded with her affirmation that the matters deponed to were true and within her knowledge, information, and belief.
37) The affidavits sworn by B.K, S.R, V.C, and F.K on 18 October 2024, together with the affidavit sworn by Nora Mbagathi on 16 June 2025, were filed in support of the Petition and Notice of Motion challenging the constitutionality and enforcement of Sections 20 and 24 of the Prohibition of Female Genital Mutilation Act. The affidavits collectively narrated the experiences of the individual petitioners who had allegedly been arrested and prosecuted as victims or suspected victims of female genital mutilation (FGM). Further, they supported the broader constitutional and public interest concerns raised in the petition.
38) In her affidavit, B.K, a 20-year-old woman residing in Narok County, stated that she was arrested on 4 December 2023 at Mogor Village in Trans Mara East Sub-County. She deponed that she was charged with being aware that an offence of female genital mutilation had been committed on herself and failing to report it to a law enforcement officer contrary to Section 24 as read with Section 29 of the Prohibition of Female Genital Mutilation Act. She further stated that police officers escorted her to the Emurua Dikirr Sub-County Hospital, where she underwent a genital examination without her consent. According to the medical findings recorded in the P3 form, there were fresh cut wounds on both the left and right labia minora caused by a sharp object. She stated that criminal proceedings against her remained pending before the Kilgoris Magistrates Court in Criminal Case No. MCCR/E080/23 expressed fear of imprisonment because of her socio-economic circumstances. She further deponed that counsel had advised her that the impugned statutory provisions were unconstitutional because they effectively criminalised victims of FGM.
39) Similarly, S.R, also a 20-year-old resident of Narok County, deponed that she was arrested on 4 December 2023 at Mogor Village within Trans Mara East Sub-County and charged with failing to report an offence of FGM allegedly committed on herself contrary to Section 24 as read with Section 29 of the Act. She stated that she, too, was taken to Emurua Dikirr Sub-County Hospital, where a genital examination was conducted without her consent, and the medical examination allegedly revealed fresh cut wounds on the left and right labia minora. S.R stated that her criminal case, MCCR/E079/23, remained pending before the Kilgoris Magistrates Court and that she feared imprisonment if convicted. She further contended that the challenged provisions were vague and unconstitutional because they criminalised women who were themselves victims of FGM.
40) In her affidavit, V.C, a 19-year-old woman from Narok County, stated that she was arrested on 4 December 2023 at Mogor Village in Trans Mara East Sub-County and jointly charged with F.K for allegedly failing to report an offence of female genital mutilation committed on herself contrary to Section 24 as read together with Section 29 of the Act. She deponed that police officers escorted her to Emurua Dikirr Sub-County Hospital, where she underwent a genital examination without her consent. According to the P3 form, the examination allegedly showed the presence of an old scar at the edge of the clitoris caused by a sharp object. She stated that proceedings against her were pending before the Kilgoris Magistrates Court in Criminal Case No. MCCR/E078/23. Like the other petitioners, she maintained that the impugned provisions improperly criminalised victims of FGM and should therefore be declared unconstitutional.
41) F.K, another adult woman residing in Narok County, swore an affidavit substantially similar to that of V.C. She stated that she had been arrested on 4 December 2023 at Mogor Village and jointly charged with V.C for allegedly failing to report an offence of female genital mutilation committed on herself contrary to Sections 24 and 29 of the Prohibition of Female Genital Mutilation Act. She confirmed that criminal proceedings against her remained pending before the Kilgoris Magistrates Court in Criminal Case No. MCCR/E078/23. She further deponed that counsel had advised her that the challenged statutory provisions were unconstitutional because they effectively treated victims of FGM as offenders.
42) The affidavit sworn by Nora Mbagathi on 16 June 2025 was filed on behalf of Katiba Institute, the 7th Petitioner. Nora Mbagathi described herself as the organisation's Executive Director. She stated that she had read and understood the Petition, Notice of Motion, and all the supporting affidavits sworn by Sofia Rajab and the 2nd to 6th Petitioners. She expressly confirmed that she agreed with and supported the contents of those affidavits. Her affidavit primarily served to affirm the Katiba Institute's institutional support for the petition and the conservatory orders sought by the applicants.
C. Directions and orders of the court.
43) On 18 June 2025, the Court considered the Notice of Motion dated 16 June 2025 filed under a certificate of urgency together with the supp
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