By Roy Agoya

The Kenya government is being compelled to cough an average of Ksh30 million in costs awarded to five transgender women in Kenya who had to trigger a protracted court process to effect name changes in their national identification cards.

They have now been forced to seek an order against the Principal Registrar of Persons as directed by court to shoulder the cost of the litigation.

The costs were slapped against the Registrar at the conclusion of the initial case in which an order was also granted to effect the desired name changes.

Maurene Muia and four others won a protracted court case in 2015 against the Principal Registrar of Persons who they said “declined to effect the name changes despite proof through Deed polls” and was ordered to pay the costs they incurred in the proceedings.

In the case, Justice  Odunga who found the registrar wanting in his statutory duty compelled the registrar to change the names and overruled the registrar, now represented by the Attorney General (AG) with a rider that Deed poll fee should not have been received and the alteration of names denied, as the applicants had pursued the only legal avenue in effecting their name change.

The current taxation case may call for a consent settlement, but we are told the AG (read state)could be “looking” at something on the downside of Ksh100,000!

Cost of Proceedings

In opposing the bill of costs the AG states that the high  court only ordered that the respondent “pays half of the cost of the proceedings.”

The AG states that the current cost  as filed is exorbitant and exaggerated and “humbly as the taxing master to examine it and have the same taxed off.”

But on the other hand, the applicants lawyer Colbert Ojiambo,  stated that the amount is appropriate considering the novelty of the case,  the tremendous individual and public interest,  the general impact across East Africa community, the time taken  for legal research, paperwork…the complexity and multi-disciplinary nature of the matter cutting across different jurisdictions with diverse laws…

“The issues raised were peculiar and novel to require detailed attention and skills. We urge the court to take judicial notice of the fact that this case is among the first cases touching on Gender Identity Disorder to have been filed in our courts. These are unique and complex issues which in themselves present unique challenges both to the court and the litigating advocates,” the filings in court state.

Ojiambo stated in the filings that the Bill of Costs as filed represents the legal and fair position as to the costs incurred in the conduct of the case as per applicable Remuneration Order.

“The disbursements were properly incurred and there is sufficient proof on record. They  relate to filing fees and the court receipts are available…”the suit papers read.

Constitutional Mandate

The applicants are Maurene Muia, Alesandra Awino Ogeto, Maria Marius Mbugua, Audrey Mbugua  Ithibu, Dalziel Leone Wafula.

Justice Odunga in his judgement had observed that that the case against the registrar had been put off on numerous occasions to enable settlement with another rider that “inaction to carry out a statutory mandate is contrary to the constitution and in no way amounts to fair administrative action.”

The transgender women wanted  the registrar declared as “failed in a constitutional mandate.”

Changed her name

An affidavit sworn by Muia said she formally changed her name by way of Deed poll  duly paid for and processed at the AG’s office!

Maurene, formerly Maurice, Audrey, formerly Andrew, and  Dalziel , Maria and Alesandra wanted their “ new” names reflective of their “gender” on their national IDs.

The transgender women in Kenya have won two landmark cases in which the High Court reaffirms the “third gender” as a constitutional issue.

“A perusal of the papers filed in court clearly show the applicant changed her name through a Deed poll which is a legally recognised method…” it was observed.

 In the previous cases, the NGOs’ Coordination Board was compelled to register a transgender lobby group, TEA, and in another, the Kenya National Examinations Council (Knec), was ordered to remove the gender mark in a certificate and effect a name change for Audrey Mbugua.