Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No 280 of 2013· [2014] KECA 561 (KLR)

Mwawasi v Attorney General & 2 others (Civil Appeal 280 of 2013) [2014] KECA 561 (KLR)

Court of Appeal of Kenya
6 June 2014
3,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that dual citizens can run for Parliament and county offices—they only need to renounce their other citizenship before actually taking office.

What this practically means

#

Executive summary

#
The appellant, a Kenyan citizen by birth who acquired US citizenship in 2011 and was nominated by the Agano party to contest the Taita Taveta Senate seat in the March 2013 general elections, challenged an IEBC public notice prescribing that candidates must not hold dual citizenship or owe allegiance to a foreign state. Majanja J in the High Court held that article 78(2) of the Constitution disqualified dual citizens from contesting parliamentary elections. The Court of Appeal (Githinji, Warsame and Kariuki JJA, in a single judgment) reversed. Reading articles 78, 99 and 260 together as an integral whole, the Court held that article 78(2) proscribes a dual citizen from holding State office, not from vying for election; candidacy and election are permissible, and renunciation of the other citizenship is required only before assuming office, in line with section 31 of the Leadership and Integrity Act. The Court rejected the submission that article 78(2) applies only to naturalised Kenyans, holding it applies to all dual citizens, and upheld the allegiance requirement in the IEBC notice while finding the dual-citizenship bar on candidates erroneous. The claim for damages was dismissed as not pursued and too remote. The appeal was allowed, the High Court judgment set aside and substituted with the Court's four holdings, with costs of the petition and appeal awarded against the IEBC; the 1st and 3rd respondents to bear their own costs.

Key legal issues

#
01

Whether article 78(2) bars dual citizens from vying for election as Members of Parliament

Holding

It does not. The proscription is against a dual citizen holding a State office, not against a dual citizen vying for election; the High Court's contrary holding was a fundamental error.

Reasoning

Article 78(2) prohibits a State Officer from holding dual citizenship. A candidate is not yet a State Officer at nomination or election. Parliament, in section 31 of the Leadership and Integrity Act, treated dual citizens as eligible to stand but required renunciation before taking office. The court adopted that interpretation as the correct reading of article 78(2), holding the trial Judge conflated disqualification for candidacy with disqualification for assuming office.

p. 6
02

Whether article 78(2) distinguishes between citizens by birth and naturalised citizens

Holding

It does not. Article 78(2) applies to all dual citizens.

Reasoning

The Constitution recognises citizenship by birth and by registration only; there is no class of 'Kenyan born in Kenya'. Article 14, read with clause 30 of the Sixth Schedule, defines citizenship by birth broadly, and the law does not place dual citizens in different categories.

p. 6
03

Whether the IEBC notice lawfully prescribed 'must not hold dual citizenship' as a qualification

Holding

To that extent the notice was erroneous, as a dual citizen may contest; the requirement not to owe allegiance to a foreign state was, however, in conformity with the law.

Reasoning

Since a dual citizen may seek nomination and stand for election, disqualifying dual citizens as candidates was inconsistent with articles 78 and 99 as properly construed. But section 8(7) of the Kenya Citizenship and Immigration Act obliges a dual citizen to owe allegiance to Kenya, so the allegiance requirement in the notice conformed to the law.

p. 6
04

Whether the article 260 definition of State Officer is competent

Holding

It is not subject to challenge and cannot be ultra vires the Constitution.

Reasoning

Article 2(3) protects the validity of the Constitution's provisions; article 259 requires harmonious interpretation of articles 99, 78 and 260 as an integral whole. The enumerated definition in article 260 expressly includes Members of Parliament, Governors and county executive members.

p. 5
05

Whether the appellant was entitled to damages

Holding

No. The claim was not pursued below and was too remote.

Reasoning

The nature and extent of damages were unknown; the appellant might not have been elected, and might have renounced his US citizenship upon election, so the loss claimed was speculative and remote.

p. 7

Legal principles established

#
  • A dual citizen is eligible to be nominated for and to stand for election as a Member of Parliament or member of County Government; the bar in article 78(2) operates only at the point of assuming State office, not at candidacy
  • A dual citizen who is elected or appointed to a State office must voluntarily and officially renounce the other citizenship before assuming office, unless renunciation is impossible under the law of the other country
  • Article 78(2) applies to all dual citizens; the Constitution recognises no class of 'Kenyan born in Kenya' as distinct from other citizens
  • Parliament's interpretation of article 78(2) in section 31 of the Leadership and Integrity Act is the correct interpretation

Court orders

#
  1. 1.The appeal is allowed
  2. 2.The judgment of the High Court is set aside and in lieu thereof substituted with holdings Nos. 1, 2, 3 and 4 of the Court
  3. 3.The claim for damages is dismissed
  4. 4.The 2nd respondent shall pay to the appellant the costs of the appeal and the costs of the petition
  5. 5.The 1st and 3rd respondents shall bear their own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 2(3)
  • Constitution of Kenya, 2010Article 12(1)
  • Constitution of Kenya, 2010Article 14
  • Constitution of Kenya, 2010Article 16
  • Constitution of Kenya, 2010Article 24(1)
  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 78
  • Constitution of Kenya, 2010Article 80
  • Constitution of Kenya, 2010Article 93(1)
  • Constitution of Kenya, 2010Article 99
  • Constitution of Kenya, 2010Article 137
  • Constitution of Kenya, 2010Article 148
  • Constitution of Kenya, 2010Article 259
  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Clause 30 of the Sixth Schedule
  • Constitution of Kenya, 1963 (repealed)Section 97
  • Elections Act No. 12 of 2011Section 22(1)(a)
  • Leadership and Integrity Act (Chapter 182)Section 31
  • Kenya Citizenship and Immigration Act No. 12 of 2011Section 8(1)
  • Kenya Citizenship and Immigration Act No. 12 of 2011Section 8(7)
  • Kenya Citizenship and Immigration Act No. 12 of 2011Section 20(1)
  • Kenya Citizenship and Immigration Act No. 12 of 2011Section 23
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appellate appeal from the High Court exercising constitutional jurisdiction (judgment and decree of Majanja, J); specific constitutional provision not stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mwawasi v Attorney General & 2 others (Civil Appeal 280 of 2013) [2014] KECA 561 (KLR)", Case Analysis (2014). Civil Appeal No 280 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/561/eng@2014-06-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.