A three-judge bench will Friday deliver a long-awaited ruling on a petition seeking to decriminalise sections of the Penal Code that make it illegal to have consensual same sex.
Gay rights groups supported the petition initially filed by Eric Gitari, who wants the court to quash sections 162 and 165 of the Penal Code. They argued that the State has no business regulating matters of intimacy.
But religious groups argued that such matters should be guided by the country's values.
Activists told Justices Roselyn Aburili, Chacha Mwita and John Mativo that gay feelings are natural and the State has no business intruding into private matters of two consenting adults.
It is their argument that the two sections are discriminatory and contravene various provisions of the Constitution such as right to equality, freedom from discrimination, human dignity, freedom and security of the person and right to privacy.
The law states that a person contravening the sections, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
Section 162 reads: "Any person who - (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.
Section 165 reads that any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
Mr Gitari, who is the director National Gay and Lesbian Rights Commission in Kenya, an NGO which was established in April 2012, argues that the law criminalising relevant conduct such as unnatural and grossly indecent, are degrading.
SAME SEX MARRIAGE
"The petition only concerns the criminalisation and severe punishment under the criminal law of a whole section of Kenyan society on account of the fundamental and innate characteristic of the sexual orientation," the NGO argued through its lawyer Senior Counsel Paul Muite.
Mr Gitari says in the petition that the case has nothing to do with same sex marriage, does not seek the legislation of same sex marriage and will not if successful, have effect of mandating or requiring Kenya to recognise same sex marriage.
Murang'a Senator Irungu Kangata through lawyer Harrison Kinyanjui opposed the petition as well as the Kenya Christians Professional Forum, which brings together the Kenya Conference of Catholic Bishops, National Council of Churches in Kenya and Evangelical Alliance of Kenya.
Others are the Registered Trustees of Jamia Masjid Ahle Sunneit Wal Jamaat and Registered Trustees Umma Foundation.
KCCPF through its lawyer Charles Kanjama argued that the LGBT community was trying to sneak gay rights through "back door", yet the Constitution explicitly states in Article 45(2) that every adult has the right to marry a person of the opposite sex.