High Court 8961 of 2018

procedure for such application. The refusal to process the petitioners’ applications and issue passports infringed their constitutional rights. The petition was allowed. Reported by Beryl A Ikamari Constitutional Law-citizenship-citizenship by birth-regaining citizenship-where a person was a Kenyan citizen by birth but lost Kenyan citizenship after acquiring foreign citizenship and sought to regain Kenyan citizenshipthe applicable procedure for regaining Kenyan citizenship under those circumstances-Constitution of Kenya 2010, article 14(5); Kenya Citizenship and Immigration Act, No. 12 of 2011, section 10. Constitutional Law-interpretation of the provisions of the Constitution-entitlements of citizens-Kenyan passport-where a person was a Kenyan citizen by birth but lost Kenyan citizenship and had acquired foreign citizenship-whether such a person was entitled to a Kenyan passport-Constitution of Kenya 2010, article 12(1). Brief facts The Petitioners were born as Kenyan citizens at hospitals in Nairobi, Kenya. They were adopted by two British citizens. Their adoption orders did not state that they would be presumed to be Kenyan citizens and pursuant to the adoption, they acquired British citizenship. The Petitioners sought to regain Kenyan citizenship and applied for Kenyan passports but the 1st Respondent declined to issue the passports. The Petitioners said that the denial of the passports was a violation of their rights guaranteed by the Constitution under article 14 and 27 and they wanted the Court to declare that they were Kenyan Citizens. The Respondents stated that the petition was premature and that the Petitioners needed to follow the procedure provided for in section 10 of the Kenya Citizen and Immigration Act in order to regain citizenship. Issues i. What legal procedure was applicable to a person who was a Kenyan citizen by birth and was seeking to regain Kenyan citizenship after having lost it by acquiring foreign citizenship? ii. Under what circumstances was a person entitled to a Kenyan passport? Held 1. Any existing law which was inconsistent with the Constitution would be invalid to the extent of the inconsistency. Any provisions of the Immigration Act (repealed) that were inconsistent with the provisions of the Constitution of Kenya 2010 would be invalid to the extent of the inconsistency. 2. Given that the Petitioners were Kenya citizens by birth, their citizenship could not be revoked or lost merely because they acquired citizenship of another country. Under article 14(5) of the Constitution, a person who was a Kenyan by birth, on the effective date, but ceased to be a Kenyan by acquiring foreign citizenship, was entitled upon application to regain Kenyan citizenship. The Petitioners fell within the terms of article 14(5) of the Constitution and they were entitled to regain citizenship after making an application. 3. What the Petitioners were required to do was to apply to regain their citizenship. The provisions of article 14(4) of the Constitution and section 9 of the Kenya Citizenship and Immigration Act would not apply to the Applicants because those provisions applied to children who were apparently under the age of 5 years with unknown parents. 4. A person born in Kenya with at least one Kenyan parent would enjoy Kenyan citizenship by birth under the terms of article 14(1) of the Constitution. That citizenship could not be lost or revoked under any circumstances. The rights and privileges of citizenship under article 12(1) of the Constitution, included the issuance of passports, documents of registration or identification issued by the State to its citizens. Such documents could only be denied, suspended or confiscated in accordance with an Act of Parliament which satisfied the criteria set out in article 24 of the Constitution. 5. Nationality or citizenship by birth meant nationality that an individual was automatically attributed by law from the moment of birth rather than citizenship acquired as an adult or following any administrative process. The determination of citizenship would be a basic element in obliging the https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/8961/eng@2018-02-22 2

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state to protect its citizens and to let them enjoy certain constitutional rights which were related to citizenship, for example, the right to vote. 6. Section 10 of the Kenya Citizenship and Immigration Act provided that a person who had been a Kenyan citizen by birth but lost Kenyan citizenship after acquiring foreign citizenship could apply in the prescribed manner to the Cabinet Secretary to regain citizenship. The requirement was that such an application would be accompanied by proof of the Applicant's Kenyan citizenship. The application would have to be accompanied by proof of Applicant’s previous Kenyan citizenship and proof of citizenship of the foreign country. 7. There was no basis for the 1st Respondent to refuse to grant the Petitioners Kenyan passports. Under article 14(5) of the Constitution, the Petitioners were entitled to regain citizenship upon making an application and under section 10 of the Kenya Citizenship and Immigration Act, the Cabinet Secretary was enjoined to issue the requisite certificate in the prescribed form. 8. The High Court was empowered to fashion appropriate reliefs for purposes of the enforcement of fundamental rights and freedoms pursuant to article 23(3) of the Constitution. Such relief would take various forms and it could include fashioning new reliefs that the circumstances of the case required. Petition allowed. Orders i. A declaration was issued to the effect that the refusal by the 1st Respondent to grant the Petitioners Kenyan Passports was an infringement of their constitutional rights under article 14 (5) of the Constitution. ii. That the Petitioners were Kenyan citizens by birth as provided under article 14 (1) of the Constitution and were all entitled to rights of a citizen as provided under article 12 (1) of the Constitution. iii. An order of mandamus was issued to compel the 1st Respondent to admit and process the Petitioners' applications to regain their citizenship under article 14 (5) of the Constitution and section 10 (3) & (4) of the Act. iv. An order of mandamus was issued compelling the 1st Respondent to issue the Petitioners with Kenyan passports. v. There were no orders as to costs. Citations Statutes 1. Constitution of Kenya, 2010 Advocates None mentioned JUDGMENT The Petitioners' case 1. The uncontested facts of this case are that the Petitioners were born Kenyan citizens. The first and third Petitioners were born at the Kenyatta National Hospital.The third Petitioner was born at the Pumwani Hospital. Their birth certificates attest to this fact. 2. It is admitted that the Petitioners were adopted by British citizens, namely, I D A and J El A in High Court Adoption Causes Nos. 35 of 1998, No.1 of 1996 and No. 52 of 1997. It is common ground that upon being adopted as aforesaid, they became British citizens. Copies of the Adoption orders are annexed to the supporting affidavit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/8961/eng@2018-02-22 3

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3. Also uncontested is the fact that at the time of the adoptions, the adoption orders did not include an order that the child be presumed to be a Kenyan citizen. The Petitioners now wish to regain their citizenship that was lost upon acquiring British citizenship. 4. The point of departure is that the first Respondent has declined to issue the Petitioners with Kenyan Passports unless they produce a court order. The Petitioners contend that the said refusal is an infringement of their constitutional rights guaranteed under Article 14 and 27 of the Constitution and a declaration that they be presumed and declared to be Kenyan citizens. They also urge the Court to compelling the first Respondent to issue them with Pass ports. 5. The Respondents' argument is that Section 10 of the Kenya Citizen and Immigration Act[1] (the Act) provides for procedure to regain citizenship. According to the Respondent, this Petition is premature in that the Petitioners have not demonstrated that they applied for the citizenship and were denied.1 6. Alfred Abuya Omangi, a Principal Immigration officer in charge of legal section, in a Replying Affidavit filed on 20th September 2017 avers that they have no record of the adoption order. He avers that the Petitioners do not qualify under Section 9 of the Act to be presumed as Kenyan Citizens because the section limits the age of presumption of a foundling to 8 years. Further, he avers that unless this court makes a pronouncement, they may not be legally process the citizenship. He deposes that their actions are founded on Sections 9 (1) (5) and 10 (1) & (2) of the Act. 7. The second Petitioner filed a further Affidavit on 16th May 2017 detailing futile attempts they made to obtain the Pssports at the Immigration offices. He adds that the immigration officers declined to accept their applications and advised them to obtain a court order or apply for dual citizenship since they were below 23 years as at the date of the promulgation of the 2010 Constitution. 8. Counsel for the Petitioners submitted that the Petitioners are Kenyan citizens2by birth, hence, they are entitled to regain their citizenship, as per Article 14 (5) and 12 (1) of the Constitution. Counsel also submitted that the demand that they produce a court order infringes on their rights. 9. Counsel for the Respondents conceded that the Petitioners are Kenyan citizens by birth3 but were adopted by British nationals, the Constitution then did not allow dual citizen ship unlike the 2010 Constitution. It is his submission that the Petitioners ought to follow the procedure provided under the law.4 She however clarified that the Respondent was not contesting the order presuming the Petitioners as citizens. 10. It is clear that the argument by the first respondent overlooks the fact that 2010 Constitution created new rights that were not explicitly provided under the retired constitution. The argument also seems oblivious of the fact that any existing law that is inconsistent with the Constitution is invalid to the extent of such inconsistency. Put differently any provision in the Immigration Act (Repealed) that are inconsistent with the provisions of the current Constitution would be invalid to the extent of such inconsistency. 11. It being common ground that the Petitioners were born Kenyan Citizens, hence, by operation of law, they are Kenyan citizens by birth. Such citizenship cannot be revoked or lost by the mere fact that a 1 Act No. 12 of 2011 2 Counsel cited Hashmukh Devani vs Cabinet Secretary Ministry of Interior and Coordination of National Government & 3 Others {2016}e KLR 3 Counsel cited Article 14 (1) of the Constitution and Section 30 of the Sixth Schedule to the Constitution 4 Counse citd Speaker of the National Assembly vs Njenga Karume {2008} 1 KLR 425 https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/8961/eng@2018-02-22 4

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person had acquired citizenship of another country. Indeed, Article 14 (5) of the Constitution provides that a person who is a Kenyan Citizen by birth and who, on the effective date, has ceased to be a Kenyan citizen because the person acquired citizenship of another country, is entitled on application to regain Kenyan citizenship. 5 12. The Petitioners case falls squarely under Article 14 (5) since they were Kenyan citizens by birth, they were born in Kenya to Kenya parents as provided under Article 14 (1) and they acquired British citizenship upon being legally adopted by British citizens. Now they desire to regain their Kenyan citizenship. Article 14 (5) clearly provides that they are entitled to regain their citizenship on application. 13. A literal construction of Article 14 (5) leads to the irresistible conclusion that all that they are required to do is to apply to regain their citizenship. Thus, the Respondents invocation of Article 14 (4) of the Constitution and Section 9 of the Act is totally inappropriate and an erroneous interpretation of the law because the said provisions deal with children found in Kenya and who appear to be less than 5 years of age and whose nationality and parents are not known, as opposed to the Petitioners who were born in Kenya, to Kenyan parents. 14. It is a constitutional imperative that a person was born in Kenya and at the time of birth at least one of his parents is a Kenya citizen, the person enjoys citizenship by birth in terms of Article 14 (1). Such citizenship cannot be revoked or lost under any circumstances. Article 12 (1) of the Constitution provides that every citizen is entitled to the rights, privileges' and benefits of citizenship, subject to the limits provided or permitted by the Constitution, and a Kenya passport and any other document of registration or identification issued by the State to citizens. A passport or other documents referred to in clause (1) (b) of Article 14 may only be denied, suspended or confiscated in accordance with an Ac of Parliament that satisfies the criteria mentioned in Article 24. 15. The above provision is echoed by Section 6 of the Act which provides that a citizen by birth will carry the same meaning as provided in Article 14 as read together with clause 30 of the Sixth Schedule of the Constitution. Also relevant is Article 16 of the Constitution which provides that a citizen by birth does not lose citizenship by acquiring the citizenship of another country. Even if the Petitioners were to be deemed to have lost their citizenship by virtue of the prevailing law then, it should be recalled that Section 7 of the fourth Schedule to the Constitution provides that all law in force immediately before the effective date continues to be in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution. 16. Section 30 of the Sixth Schedule to the Constitution amplifies this position. It provides that a Kenya citizen is a citizen by birth if that citizen acquired citizen under Section 87 or 88 (1) of the former constitution. Section 89 of the former Constitution provides that "Every person born in Kenya after 11th December, 1963 shall become a citizen of Kenya if at the date of his birth one of his parents is a citizen of Kenya..." As admitted by the parties herein, the Petitioners were Kenyan citizens by birth. 17. Nationality or citizenship by birth means nationality that an individual is automatically attributed by law from the moment of birth rather than acquired as an adult or following any administrative process. 18. Citizenship is a fundamental right of individuals for the reason that in some cases it is the basis for enjoying other rights related to citizenship. The vital importance of citizenship is described by the USA Supreme Court Chairman as the right to enjoy rights.5 The right to citizenship is reflected in Article 15 of UDHR. Natalie Klein, Lise Barry, A human rights perspective on diplomatic protection: David Hicks and his dual nationality, Australian Journal of Human Rights, V.13, 2007, p.4 https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/8961/eng@2018-02-22 5

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19. Chapter three of the Constitution is dedicated to citizenship. Article 14 (1) of the Constitution provides that a person is a citizen if on the day of the person's birth whether or not born in Kenya, either mother or father of the person is a citizen of Kenya. This constitutional provision shows that Kenya is aligned with those countries where the well-known international principle jus sanguinis is applied. 20. The determination of the citizenship is a basic element for obliging a state to protect the citizens of that state and let them enjoy certain constitutional rights related to the juridical fact of citizenship, i.e. the active and passive right to vote or right to be issued with identification documents etc. 21. Even if the court the Court was to accept the first Respondents assertion that the Petitioners lost their Citizenship, then the provisions of Section 10 of the Act on the procedure of regaining citizenship is clear. It provides that a person who was a citizen of Kenya by birth and who ceased to be a citizen of Kenya because he or she acquired the citizenship of another country may apply in the prescribed manner, to the Cabinet Secretary to regain Kenyan citizenship. The application is required to be accompanied by proof of applicant’s previous Kenyan citizenship and proof of citizenship of the other country. The Petitioners provided the above details. Under section 10 (3) & (4) of the Act, the Cabinet Secretary is required to cause the application to be registered and keep a record of such application, and issue a certificate in a prescribed form to the applicant. 22. In view of the above clear provisions of the Constitution and the law I find that there is absolutely no legal basis for the first Respondents refusal to issue the Petitioners with Kenyan Passports. Further, by dint of Article 14 (5) of the Constitution, the Petitioners are entitled on application to regain their Kenyan citizenship. It is also clear that under Section 10 (3) & (4) of the Act, the Cabinet Secretary is enjoined to issue the requisite certificate in the prescribed form to the Petitioners. 23. In view of the clear provisions of the Constitution and the Act cited above, the conclusions is irresistible that this Petition is merited. 24. As for the appropriate reliefs, this Court is empowered by Article 23 (3) of the Constitution to grant appropriate reliefs in any proceedings seeking to enforce fundamental rights and freedoms such as this one. Perhaps the most precise definition "appropriate relief" is the one given by the South African Constitutional Court in Minister of Health & Others vs Treatment Action Campaign & Others6thus:“ ...appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief may be a declaration of rights, an interdict, a mandamus, or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the court may even have to fashion new remedies to secure the protection and enforcement of these all important rights...the courts have a particular responsibility in this regard and are obliged to "forge new tools" and shape innovative remedies, if need be to achieve this goal." 25. Consequently, I find and hold that the following are the appropriate reliefs in this case therefore order as follows:a 6 A declaration be and is hereby issued that the refusal by the first Respondent to grant the Petitioners with Kenyan Passports is an infringement of their Constitutional Rights under Article 14 (5) of the Constitution. (2002) 5 LRC 216 at page 249 https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/8961/eng@2018-02-22 6

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b. That the Petitioners are Kenya citizens by birth as provided under Article 14 (1) of the Constitution and are all entitled to rights of a citizen as provided under Article 12 (1) of the Constitution. c. An order of mandamus be and is hereby issued directed to the first Respondent compelling the first Respondent to admit and process the Petitioners applications to regain their citizenship under Article 14 (5) of the Constitution and Section 10 (3) & (4) of the Act. d. An order of mandamus be and is hereby issued compelling the first Respondent to issue the Petitioners with Kenyan passports. e. No orders as to costs Orders accordingly SIGNED, DATED AT NAIROBI THIS 22ND DAY OF FEBRUARY 2018 JOHN M. MATIVO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/8961/eng@2018-02-22 7

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