Kenya: Dual Citizenship

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Can Persons Who Lost Their Citizenship Due to Acquiring Another Citizenship Under the Repealed Constitution Regain It Under the 2010 Constitution?

YES. Section 8(1) of the Kenya Citizenship and Immigration Act, No. 12 of 2011 (the “Immigration Act”) provides that a citizen of Kenya by birth who acquires the citizenship of another country shall be entitled to retain Kenyan citizenship, subject to the provisions of the Immigration Act and the limitations relating to dual citizenship prescribed in the Constitution of Kenya, 2010.

In 1998, Kenya embarked on a constitutional review process, completed in 2010 through a referendum where 68.55% of voters supported adopting the new draft. The constitutional provisions on citizenship were operationalized by the Kenya Citizenship and Immigration Act, 2011, and its subsidiary regulations, thus repealing the Kenya Citizenship Act and the Kenya Immigration Act, among others.

Therefore, the Constitution of Kenya introduced a new citizenship regime. Persons who had lost their citizenship due to acquiring another country’s citizenship under the repealed constitution can now regain their citizenship by registering for dual citizenship.

Legal Precedents

In Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 6 others; Kenya National Commission on Human Rights (Interested Party) [2018] eKLR, the High Court held that:

“Miguna Miguna was born a citizen of Kenya in Nyando, along the shores of Lake Victoria in what is now called Kisumu County. His parents were also citizens of Kenya by birth. The Petitioner grew up as a citizen and attended local schools. After his High School education, he joined the University of Nairobi but at some point, he had a brush with the then government of President Moi and fled the country, ending up exiled in Canada, where he eventually acquired a Canadian passport. This was after his efforts to obtain a Kenyan passport failed. He later returned to Kenya, renewed his Kenyan Identity Card, and acquired a Kenyan Passport, showing he was born a citizen of Kenya. He even served as a senior adviser in the Prime Minister’s office and ran for elective posts in Kenya.”

The court concluded that the Petitioner did not lose his Kenyan citizenship by acquiring a Canadian passport. Article 14(5) provides that a citizen by birth who had lost citizenship by acquiring another country’s citizenship is entitled, upon application, to regain the lost citizenship.

Regaining Citizenship

The High Court of Kenya clarified that regaining citizenship under the new constitution is not automatic but a legal process. Applicants must follow the prescribed procedure to be issued citizenship documents such as a passport or ID. If there is undue delay in issuing the certificate of regaining citizenship, the court can mandate the issuance of the certificate and identification documents, interpreting the delay as an infringement of one’s rights as a citizen.

To Register for Dual Citizenship, the Applicant Should:

1. Submit an application to the Cabinet Secretary in the prescribed manner (Duly completed application Form 1).
2. Provide proof of previous Kenyan citizenship (Certificate of birth) and proof of citizenship of the other country.
3. Submit 2 passport photos.
4. Pay the prescribed fee.

Upon verifying the documents, the Cabinet Secretary issues a certificate of regaining Kenyan citizenship. Dual citizenship is permitted under the Constitution of Kenya, allowing the applicant to maintain the second country’s citizenship.

Disclosure Requirements

Section 8(3) of the Immigration Act requires every dual citizen to disclose their other citizenship within 3 months of becoming a dual citizen. Failure to disclose dual citizenship in the prescribed manner is an offense, punishable by a fine not exceeding five million shillings or imprisonment for up to three years or both.

Dual citizens are entitled to a passport and other travel documents and enjoy the rights of citizens, but must not use dual citizenship to gain unfair advantage or commit a crime. They owe allegiance to and must abide by the laws of Kenya.

We hope this information helps you understand Kenya’s citizenship and immigration laws. Please note that this newsletter provides a general guide and should not be relied upon without legal advice.

For further information or legal assistance, please contact us:

• Email: info@wka.co.ke
• Website: www.wka.co.ke
• Phone: +254 798 03 580
• Address: Nairobi Hub, Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road

Authors:

• William Karoki, Founding Partner
• Florence Mwende, Associate