The High Court has referred a petition challenging FGM enforcement practices to Chief Justice Koome to appoint an uneven bench of at least three judges hear the case.
Narok High Court Judge Charles Kariuki ordered the case file to be placed before Chief Justice Martha Koome after finding that the petition raises substantial questions of law under Article 165(4) of the Constitution.
“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,” Justice Kariuki said.
The petition was filed by Sofia Rajab and six others and concerns women and girls who are victims or suspected victims of female genital mutilation (FGM) and who have allegedly been arrested, charged and detained under sections 20 and 24 of the Prohibition of Female Genital Mutilation Act.
Justice Kariuki said the petition raises constitutional questions concerning the enforcement of the anti-FGM law, including whether suspects can be subjected to compulsory genital examinations during criminal investigations.
He directed the Deputy Registrar to 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.
The judge said the matter raises questions touching on human dignity, privacy, bodily integrity, equality, freedom and security of the person and fair trial rights.
“A compulsory genital examination is not an ordinary investigative act. It potentially involves an intrusion into bodily integrity, sexual privacy, dignity and personal autonomy,” Justice Kariuki said.
He said the issue was whether such investigations complied with the constitutional requirements of legality, necessity, proportionality and procedural safeguards.
The judge noted that the State has a constitutional obligation to eradicate FGM but said that obligation must be balanced against the rights of people subjected to criminal investigations.
“The State has a legitimate and constitutionally compelling obligation to protect women and girls from harmful practices and to enforce the law against FGM,” he said.
“That obligation, however, does not place persons suspected of being victims of FGM outside the protection of the Constitution.”
Justice Kariuki identified several substantial questions, including the constitutional limits of investigative powers where bodily integrity and privacy are implicated, the relationship between the Prohibition of FGM Act and the Constitution, protection of vulnerable persons and whether evidence obtained through intrusive medical or genital examinations can be used in criminal proceedings.
The petition also questions the interpretation and application of sections 20 and 24 of the anti-FGM law.
However, the judge clarified that neither provision expressly creates a power to conduct compulsory genital examinations.
“Neither provision, on its face, expressly creates a power to conduct compulsory genital examinations,” he said.
The judge said the substantive petition will determine whether the investigative practices complained of had a sufficient legal basis and complied with constitutional protections.
He noted that the precise constitutional questions concerning compulsory or allegedly compulsory genital examinations in FGM investigations had not been definitively determined by Kenya’s superior courts.
“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,” Justice Kariuki said.
The judge said the case has implications for law-enforcement agencies, prosecutors, medical practitioners and trial courts, and could contribute to the development of constitutional jurisprudence.
He nevertheless cautioned that certification was not a determination of the petition’s merits.
“Certification does not amount to a determination of the merits of the Petition. Neither does it signify that the Petitioners will ultimately succeed,” he said.
Justice Kariuki further clarified that the ruling should not be interpreted as questioning 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.”
The court allowed the petitioners’ March 20, 2026 application and certified Constitutional Petition No. E007 of 2025 as raising substantial questions of law.
The Deputy Registrar was ordered to transmit the file to Chief Justice Koome for consideration and appointment of an uneven bench of not less than three judges.
