Mwawasi v Attorney General & 2 others (Civil Appeal 280 of 2013) [2014] KECA 561 (KLR)
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
#Key legal issues
#Whether article 78(2) bars dual citizens from vying for election as Members of Parliament
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.
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.
Whether article 78(2) distinguishes between citizens by birth and naturalised citizens
It does not. Article 78(2) applies to all dual citizens.
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.
Whether the IEBC notice lawfully prescribed 'must not hold dual citizenship' as a qualification
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.
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.
Whether the article 260 definition of State Officer is competent
It is not subject to challenge and cannot be ultra vires the Constitution.
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.
Whether the appellant was entitled to damages
No. The claim was not pursued below and was too remote.
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.
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.The appeal is allowed
- 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.The claim for damages is dismissed
- 4.The 2nd respondent shall pay to the appellant the costs of the appeal and the costs of the petition
- 5.The 1st and 3rd respondents shall bear their own costs
- 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.
- Kibeh v Waibara & another[2022] KECA 388 (KLR)4 Mar 2022
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.