Introduction
1. The Petition dated 24 th April 2025 challenges the constitutionality of Regulation 34(2) of the Elections (Registration of Voters) Regulations, which limits voter registration and voting of Kenyan citizens living abroad, to countries where Kenya maintains diplomatic relations. The Petitioners are Kenyan citizens residing in the diaspora. They contend that the restriction effectively disenfranchises a significant portion of the estimated 4 million Kenyans abroad and unjustifiably limits their right to vote under Article 38 of the Constitution.
2. The Petitioners seek the following reliefs against the Respondents:
a) A declaration that Regulation 34(2) of the Elections (Registration of Voters) Regulations is unconstitutional to the extent that it limits diaspora voting to embassies, high commissions, and consulates, thereby violating Articles 38, 81, and 82 of the Constitution and all other enabling provisions of the law.
b) An order compelling the 1 st Respondent to expand diaspora voter registration and voting beyond embassies, high commissions, and consulates and to include other suitable locations/polling stations.
c) A declaration that Regulation 34(2) of the Elections (Registration of Voters) Regulations is not a reasonable limitation under Article 24 of the Constitution.
d) An injunction restraining the 1 st Respondent from enforcing the restriction on polling stations to embassies, high commissions, and consulates in the upcoming elections.
e) An order directing Parliament to amend the Elections Act and any related subsidiary legislation including Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 with a view to ensuring full compliance with Article 38 and Article 82(l)(e) of the Constitution. The amendments should provide for the progressive, inclusive, and non-discriminatory registration and participation of Kenyan citizens residing outside Kenya, regardless of whether such citizens reside in countries with Kenyan embassies, high commissions, or consulates.
f) Any other relief that this Court deems fit and just to uphold the Constitution and protect the rights of Kenyan citizens abroad.
g) Each party to bear their own costs as this Petition is brought in public interest.
Petitioner’s Case
3. The Petitioners averred that they are Kenyan citizens residing outside the country and are seeking to vindicate their right to vote under Article 38 of the Constitution. The 1 st Petitioner, resides in Dallas, Texas. He swore the supporting affidavit on behalf of all the Petitioners.
4. The Petitioners contend that the Kenyan diaspora population continues to grow and that by year 2023 it is estimated that it would be at approximately 4,000,000. He further states that diaspora remittances reached a record Kshs. 637.3 billion in 2024, representing approximately 4.6% of Kenya’s GDP. In his view, the diaspora therefore constitutes a significant economic and social constituency.
5. Despite this, the Petitioners aver they are, together with other Kenyans residing abroad, effectively excluded from participating in voting, by virtue of Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012. In particular, the impugned provision limits voter registration for Kenyan citizens residing outside Kenya to countries in which Kenya maintains an Embassy, High commission, or Consulate. Consequently, Kenyans residing in countries such as the United States, Canada, the Kingdom of Saudi Arabia, Australia, the United Kingdom, China, Sweden, Finland, Norway, Denmark, Belgium, and South Africa, among others, are allegedly unable to register or vote.
6. The Petitioners allege that although some Kenyans have travelled to countries such as the United States, Australia, Canada, and the United Kingdom to vote, this option is impractical for many due to the attendant costs. They therefore contend that the absence of adequate legislation to address this issue has effectively disenfranchised millions of Kenyans living in over 100 countries, thereby curtailing their right to vote.
7. By way of comparison, the Petitioners assert that countries such as Rwanda and Moldova have successfully implemented diaspora voting mechanisms, including the establishment of voter registration and polling centers outside embassy and consular premises. Similarly, the Republic of the Philippines is said to have implemented a structured overseas voting system under the Overseas Absentee Voting Act (Republic Act No. 9189), which allows eligible Filipino citizens residing abroad to register and vote through personal or postal voting at designated polling centers, including centers located outside embassy and consular premises. The United States of America is also said to have adopted internet voting as a primary mode of voting for overseas voters during its 2025 national elections. On that basis, it is argued that it is both practical and feasible for states to extend voter registration and polling facilities to diaspora populations beyond embassy or consular premises, thereby enhancing the realization of the right to vote for citizens residing abroad.
8. The Petitioners contend that the impugned Regulation imposes an unreasonable limitation that is discriminatory, arbitrary and unjustifiably conditions the enjoyment of a constitutional right on the existence of a diplomatic office. He stresses that this creates inequality in access to the franchise and violates Articles 24, 27, 38(3), 81, 82, and 83 of the Constitution. The Petitioners further aver that the limitation is unreasonable, unjustifiable, and disproportionate within the meaning of Article 24 of the Constitution. In addition, the impugned provision is said to undermine the progressive realization of the Petitioners’ voting rights and to be inconsistent with international instruments, particularly Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees every citizen the right to participate in public affairs.
9. Lastly, the Petitioners fault the Respondents for failing to undertake reforms or provide an effective policy response despite repeated calls for engagement with the 1 st Respondent and other relevant state agencies, thereby necessitating the filing of the present suit. In this regard, the Respondents are alleged to have failed to comply with Section 109 of the Elections Act and Section 25 of the Independent Electoral and Boundaries Commission Act.
1 st Respondent’s Case
10. Rebutting the Petition, the 1 st Respondent filed its response dated 3 rd July 2025.
11. At the outset, the 1 st Respondents asserts that while the right to vote is a fundamental right, it is not an inalienable right but a right subject to the limitations stipulated under Article 24 of the Constitution , hence not an absolute right.
12. The 1 st Respondent deposed that ever since the Elections (Registration of Voters) Regulations, 2012, came into force, it has undertaken significant steps to ensure that registration of Kenyans living in the diaspora as voters, is realized progressively, under the principle of incremental progress, toward a full-scale attainment of the right to vote. It is noted that in 2013, the number of registered voters in the diaspora in 2017 was 4,223, as compared to 10,444 registered voters in 2022.This increase was made possible owing to the criteria revolving around: there is a presence of a Kenyan Mission (Embassy, High Commission or consulate, number of registered citizens with Kenyan Missions in host countries, political environment in host governments should be conducive, stable and predictable and financial sustainability to support logistical, operational and administrative costs of carrying out such an activity .
13. Following this, the 1 st Respondent avers that it was able to conduct elections outside Kenya in Uganda, Tanzania, Rwanda, and South Africa in 2017. In 2022, it increased to 12 countries, being Uganda, Tanzania, Rwanda, South Africa, United States of America, Canada, South Sudan, Germany, United Kingdom, Qatar, and the United Arab Emirates. In addition, the 1 st Respondent has partnered with the State Department of Diaspora Affairs, to enhance the progressive participation of the diaspora community, by facilitating voting for Kenyan citizens in the diaspora.
14. Nevertheless, it is highlighted that implementation of the impugned Regulations has faced challenges especially with the pace of progress. Particularly, it is noted that implementation of the impugned Regulation has presented complex problems such as financial constraints. It is stressed that the 1 st Respondent’s financial sustainability to support logistical, operational and administrative costs of carrying out elections in the diaspora, is entirely dependent on the budgetary allocation passed by the Legislature.
15. To underscore this point, the 1 st Respondent avers that its’ preparations for the 2027 General Election are already facing a budget shortfall of at least KES 7.2 Billion, following the Cabinet revising downward its initial estimate of KES 61.7 billion, to KES 57.38 billion, as a measure of budget rationalization. Regardless, the 1 st Respondent states that it is still optimistic that the 2027 General Elections will be funded in three fiscal years, starting with Year 2025/2026.It further projects to gazette 55,393 polling stations up from 46,229 in 2022.
16. Considering these factors, the 1 st Respondent asserts that the measures it has undertaken has placed it in the right path towards full realization of Kenyans living in the diaspora, right to vote. Further to this, the 1 st Respondent is in the process of reviewing a Draft Strategic Plan for 2024-2029 which covers technological advancements, good governance practices, legal and regulatory requirements, as well as its long-term vision. This will enable the 1 st Respondent to improve its electoral operations and processes and ensure that it fulfils its mandate of conducting fair and transparent elections.
17. That said, the 1 st Respondent stresses that the impugned Regulations enjoy the presumption of constitutionality and thus the burden to prove otherwise rests on the Petitioners. Equally, it is argued that declaring the impugned Regulations unconstitutional will further throw into disarray, the Petitioner’s right to vote as there will be no express mechanism upon which the 1 st Respondent can realize this right.
18. Filing this Petition 13 years later is contended to be an afterthought as throughout this period, the 1 st Respondent has successfully conducted three general elections outside Kenya in 2013, 2017 and 2022, under the impugned, Regulation 34(2) of the Elections (Registration of Voters) Regulations, without any legal challenge.
19. Further to this, it is stressed that the 1 st Respondent cannot deviate from the impugned provision as it obligates it to restrict the process to designated embassies, high commissions, and consulates. The 1 st Respondent also reminds the Court that Article 10 (2) (c) of the Constitution obligates it to deliver a credible election within its principles.
20. That said, it is noted that the sovereign authority of the Republic of Kenya does not extend beyond its territorial boundaries except through diplomatic missions duly accredited under International Law. As such, attempting to conduct elections outside this limit will infringe the sovereignty of host states and violate the principles of international law and diplomacy.
21. In light of this, it is averred that the Petition is grossly misconceived and premature, as offends the doctrine of separation of powers in so far as the Petitioners’ seek an expanded diaspora voter registration and voting beyond embassies. Similarly, the Petition as pleaded is said not meet the test required for a constitutional petition. On this premise, the 1 st Respondent urges the Court to find that Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 is constitutional and dismiss the Petition.
2 nd Respondent’s Case
22. In reaction to the Petitioners’ case, the 2 nd Respondents’ filed undated Grounds of Opposition. The 2 nd Respondent opposes the Petition on the basis that:
i. The Petition is misconceived and legally untenable as it seeks to compel the implementation of diaspora voting in jurisdictions where the Republic of Kenya has no diplomatic presence, contrary to established principles of international law, sovereignty and diplomatic protocol.
ii. The Petition fails to appreciate that the right to vote, whilst fundamental, is not absolute and may be subjected to lawful limitations including logistical, administrative, financial and international legal constraints.
iii. The limitation imposed by Regulation 34(2) of the Elections (Registration of Voters) Regulations 2012, which restricts registration and voting of Kenyan citizens abroad to countries where Kenya maintains an Embassy, High Commission or Consulate is a reasonable, justifiable and proportionate limitation in an open and democratic society pursuant to Article 24 of the Constitution.
iv. The ability to facilitate voter registration and conduct elections abroad is directly contingent upon the presence of established consul infrastructure which provides the legal, administrative and logistical framework within which the Kenyan Government operates in foreign jurisdictions.
v. The sovereign authority of the Republic of Kenya does not extend beyond its territorial boundaries except through diplomatic missions duly accredited under international law. As such, any attempt to conduct elections or register voters outside Kenyan diplomatic missions would infringe the sovereignty of host states/our state and violate the principles of international law and diplomacy.
vi. The requirement that registration and voting of Kenyan citizens abroad be conducted at Kenyan Embassies, High Commissions or Consulates is a neutral and objective criterion. All Kenyan citizens living abroad are subject to the same conditions regardless of their geographical location. It therefore does not amount to arbitrary discrimination but is grounded in administrative necessity and the respect for the sovereignty of host nations.
vii. The Petition does not disclose any actual or threatened violation of the Constitution attributed to the 2 nd Respondent. The impugned Regulations 34(2) merely operationalizes the framework for registration of Kenyan citizens abroad in a manner consistent with Articles 38(3) and 82(1)(e) of the Constitution which provides for the progressive realization of diaspora
viii. The framers of the Constitution foresaw the hurdles that comes with registration and taking part in elections in countries without Kenyan consular and appreciated that this realization in such territories can only be progressive rather than as a matter of immediacy.
ix. The regulatory regime governing diaspora participation in elections, including the designation of polling stations at consulates and embassies reflects Kenya's ongoing and evolving efforts to realize electoral inclusion while ensuring compliance with diplomatic norms and institutional capacity.
x. The Petitioners have not established any unlawful omission or dereliction of duty by the 2 nd Respondent in either promoting electoral reforms or facilitating diaspora voting, particularly as the Implementation of Regulation 34(2) falls within the mandate of the 1 st Respondent, that is an independent office and the relevant legislative arms.
xi. The Petitioners have not established with specificity any credible or immediate risk of disenfranchisement as the voter registration exercise for the upcoming general elections has not yet begun neither has a determination on the polling centers been made.
xii. The Petitioners have not met the constitutional threshold under Article 24 to demonstrate that the limitations imposed by Regulation 34(2) are unreasonable or unjustifiable in a democratic society and the reliefs sought are speculative, overbroad and incapable of implementation without violating other constitutional provisions and international norms.
xiii. The reliefs sought, including the potential invalidation of Regulation 34(2) would amount to unwarranted judicial interference with the policy making. legislative functions and mechanics of voter registration constitutionally vested in the Independent Electoral and Boundaries Commission, Parliament and the Executive.
xiv. The issues raised by the Petitioners are matters of administrative policy and legislative discretion and are therefore ill-suited for adjudication by this Court in the manner framed.
xv. The Petition is therefor without merit, an abuse of the court process and ought to be dismissed with costs to the Respondents.
3 rd Respondent’s Case
23. Rebutting the Petition, the 3 rd Respondent filed Grounds of Opposition dated 12 th April 2026 on the basis that:
i. While the Petitioners are entitled to approach this Court, the relief sought in the Petition, particularly the directive compelling Parliament to undertake legislative reforms, respectfully invites this Court to venture into the exclusive legislative mandate of the National Assembly, contrary to the principle of separation of powers enshrined in Articles 94(5) and 95 of the Constitution.
ii. The prayers sought, particularly the “Legislative Directive” compelling Parliament to undertake legislative reforms, constitute an invitation for this Court to engage in judicial overreach by usurping the constitutional function of the National Assembly.
iii. Further, the Petitioners have failed to demonstrate that the legislative process leading to the enactment of Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 was flawed or that Parliament exceeded its delegated authority under Section 109 of the Elections Act (Cap 7) and the Statutory Instruments Act.
iv. There exists a presumption of constitutionality regarding all duly enacted laws and regulations, and the burden lies with the Petitioners to demonstrate, with cogent evidence, that the impugned Regulation 34(2) of the Elections (Registration of Voters) Regulations is unconstitutional; a burden they have failed to discharge.
v. Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012, is a valid exercise of delegated legislative authority and is not ultra vires the Constitution. It provides a practical and administrative framework for the Independent Electoral and Boundaries Commission (“IEBC”) to operationalize diaspora voting.
vi. Applying the principle of purposive interpretation established in the cases of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR and The Queen v Big M Drug Mart Ltd , the purpose and effect of the impugned Regulation 34(2) must be discerned by considering the intention of the legislature, the mischief sought to be remedied and the context of the entire statute and Constitution; in this regard, the right to vote for citizens residing outside Kenya under Article 82(1)(e) of the Constitution is subject to progressive realization, a principle affirmed in Advisory Opinion No. 2 of 2012 and Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR) , which acknowledges that the full realization of such rights may be achieved over time due to logistical, financial, and administrative constraints.
vii. The Petitioners have failed to discharge their burden of demonstrating that Regulation 34(2) is not the “least restrictive means” to achieve the legitimate aim of managing diaspora voting logistically, as required under Article 24 of the Constitution, which mandates that any limitation on rights must employ the method that restricts the right no more than is necessary to accomplish the objective, yet the Petitioners have not shown any feasible, practical and secure alternative mechanism to the embassy-based system that would achieve the same administrative goals while imposing a lesser restriction on voting rights.
viii. Furthermore, Regulation 34(2) does not discriminate against Kenyan citizens on the basis of geographical location under Article 27 of the Constitution. The regulation applies uniformly to all Kenyans residing outside the country and is based on a neutral and objective criterion (the existence of State infrastructure) rather than targeting any specific group.
ix. The National Assembly has not abdicated its constitutional mandate. The assertion that Parliament has failed to enact legislation for the progressive registration of diaspora voters is factually incorrect and made in bad faith.
x. In furtherance of its mandate under Article 82(1)(e), the National Assembly is currently considering The Elections (Amendment) (No.2) Bill, 2024. The Bill proposes the introduction of Section 8A, which seeks to institutionalize independent voter register audits and enhance the accuracy and inclusivity of electoral systems for citizens abroad, thereby advancing the progressive realization of diaspora voting rights.
xi. The pendency of the said Bill before the House demonstrates that the legislative process regarding diaspora voting is dynamic and ongoing and this Court should not issue orders that would preempt or interfere with that process.
xii. The Petitioners have failed to demonstrate a specific, clear and present breach of any negative constitutional obligation by the National Assembly contrary to the principle upheld in Anarita Karimi Njeru v Republic [1979] KLR 1272 where a party seeking constitutional relief is obligated to set out with reasonable precision the provisions alleged to be infringed and the manner of infringement.
xiii. In the present matter, the Petitioners have merely listed numerous constitutional provisions without demonstrating, with any degree of specificity, how the National Assembly has violated any constitutional duty.
4 th Interested Party’s Case
24. The 4 th Interested Party in reaction to the Petition filed its Replying Affidavit through its Chief Executive Officer, Mercy K. Wambua, sworn on 5 th September 2025.
25. Reiterating the key challenge in this matter, the 4 th Interested Party contends that the balance between facilitating the broadest possible enjoyment of political rights and addressing logistical, security and administrative considerations in electoral management requires consideration.
26. The 4 th Interested party acknowledges that Kenyans residing abroad without access to diplomatic missions may encounter difficulties in exercising their political rights under the existing regulatory framework but at the same time appreciates that the Respondent bears the responsibility of safeguarding the integrity, practicality, and credibility of the electoral process. In this regard, the 4 th Interested Party emphasizes that international practice and jurisprudence recognize that States retain a measure of discretion in structuring diaspora voting systems, provided that such arrangements do not impose unreasonable or unjustifiable limitations on the exercise of political rights.
27. In light of this, the 4 th Interested Party underscores the need for this Court to examine whether the impugned Regulation imposes a reasonable and justifiable limitation on the right to vote under Article 24 of the Constitution and whether the Regulation, in its current form, is consistent with the principles of inclusiveness, equality, and non-discrimination under Article 10 of the Constitution.
28. In light of the foregoing, it is submitted that this Petition will offer important guidance on striking a balance between electoral administration and the realization of political rights for Kenyans in the diaspora. Accordingly, the 4th Respondent urges the Court to consider the constitutional issues raised and give appropriate guidance.
Petitioners’ Submissions
29. Mulandi Kisabit and Associates Advocates for the Petitioners filed submissions dated 16 th January 2026 and outlined the issues for determination as follows:
- whether the Petition meets the threshold of a constitutional petition, -whether this Court has jurisdiction to entertain this matter and,
- whether Regulation 34(2) of the Elections (Registration of Voters) Regulations unreasonably limits the voting rights of Kenyans in the diaspora.
30. On the first issue, Counsel answered in the affirmative. Counsel relied on Rule 4(1) and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 to submit that the Petition meets the threshold of a constitutional petition. Counsel emphasized that the Petition highlights violation of the Petitioners’ rights and the manner in which these violations have been occasioned by the Respondents. Particularly, the Petition highlights Articles 1, 2, 3(1),10, 19, 20, 21, 22, 23, 24, 27, 38,48, 81, 82, 88, 156 (6), 258 and 259 of the Constitution and demonstrates the key particulars of the Petitioners claim.
31. To further buttress this point, Counsel cited the case of Anarita Karimi Njeru v the Republic (1979) KLR 1272 where the Court emphasized the importance of reasonable precision in pleading a constitutional violation as follows:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if any to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
32. To further support this Petition, Counsel relied on Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) .
33. On jurisdiction, citing the case of Owners of Motor Vessel (Lilian S) v Caltex Oil (Kenya Ltd) [1989] KLR 1 to emphasize the significance of jurisdiction and argued that this Court has the jurisdiction to hear this matter by dint of Article 165 (3) (b) of the Constitution.
34. As to the issue of whether Regulation 34(2) of the Elections (Registration of Voters) Regulations unreasonably limits the voting rights of Kenyans in the diaspora, it was submitted on behalf of the Petitioners that this Petition does not in any way seek preferential treatment, instead, it challenges the practical and disproportionate limitation imposed by the impugned provision as restricts voter registration and polling only at the embassy, high commission and consulate premises, without regard to Kenyan citizens population distribution, distance of travel, cost of travel or feasibility in countries with a large land mass like the United States, Australia, China among others. This is despite evidence that other countries with equal diplomatic mission in these countries have allowed temporary polling centers without causing any jurisdiction issues such as in the case of Rwanda. Considering this, it was submitted on behalf of the Petitioner that failure to adopt similar alternatives curtails the Petitioners rights under Article 38 of the Constitution.
35. The Petitioners submit the regulation conditions the enjoyment of the constitutional right on the geographical location of a diplomatic office, an administrative factor entirely unrelated to voter eligibility or electoral integrity. Owing to this, Counsel reiterated that Kenyan citizens in the United States, Canada, Australia and the United Kingdom, countries where Kenya already maintains diplomatic missions, are compelled to incur exorbitant travel costs per trip, often traversing distances exceeding 2,000 to 6,000 kilometers just to exercise their right to vote. On the other hand, Kenyan citizens residing in countries such as United States, Canada, Kingdom of Saudi Arabia, United Kingdom, Australia, China, Sweden, Finland, Norway, Denmark, Belgium, South Africa among others have been unable to register as voters and to vote unless they incur significant travel costs to reach a designated mission often across different states, territories, provinces and countries to access polling stations, which is both impractical and financially burdensome. Accordingly, Counsel argued that the impugned provision creates indirect discrimination contrary to Article 27 of the Constitution, by privileging those who live near diplomatic offices and disadvantaging those who do not.
36. To buttress this point reliance was placed in Kituo cha Sheria v. IEBC & Another [2013] eKLR where it was held that:
“In conclusion, the Learned Judge directed, “The government and IEBC must be told that they need to put in place efficient, concrete and realistic mechanisms including fiscal and logistical measures to ensure that all citizens living abroad take part in the General Election following the March 2013 elections.” Unlike, the situation in the Priscilla Kanyua Case (Supra) where the order was directed to ensure that prisoners vote in the referendum, the General Election involves elections at several levels of government and it is in this respect that the sentiments of Justice Lenaola I have alluded to are apposite particularly given the specific challenges of the first general elections... [33]. The obligation of the Court is to give effect to the rights contained in the Bill of Rights and the fact that giving effect to these rights may be inconvenient cannot override constitutional imperatives. In the Arnold Keith August Case (Supra), Justice Sachs noted that the Court did not have information or expertise to enable it decide the nature of arrangements which should be made or how they should be effected once the court had made a finding that prison inmates were entitled to vote. I
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1. The Petition dated 24 th April 2025 challenges the constitutionality of Regulation 34(2) of the Elections (Registration of Voters) Regulations, which limits voter registration and voting of Kenyan citizens living abroad, to countries where Kenya maintains diplomatic relations. The Petitioners are Kenyan citizens residing in the diaspora. They contend that the restriction effectively disenfranchises a significant portion of the estimated 4 million Kenyans abroad and unjustifiably limits their right to vote under Article 38 of the Constitution.
2. The Petitioners seek the following reliefs against the Respondents:
a) A declaration that Regulation 34(2) of the Elections (Registration of Voters) Regulations is unconstitutional to the extent that it limits diaspora voting to embassies, high commissions, and consulates, thereby violating Articles 38, 81, and 82 of the Constitution and all other enabling provisions of the law.
b) An order compelling the 1 st Respondent to expand diaspora voter registration and voting beyond embassies, high commissions, and consulates and to include other suitable locations/polling stations.
c) A declaration that Regulation 34(2) of the Elections (Registration of Voters) Regulations is not a reasonable limitation under Article 24 of the Constitution.
d) An injunction restraining the 1 st Respondent from enforcing the restriction on polling stations to embassies, high commissions, and consulates in the upcoming elections.
e) An order directing Parliament to amend the Elections Act and any related subsidiary legislation including Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 with a view to ensuring full compliance with Article 38 and Article 82(l)(e) of the Constitution. The amendments should provide for the progressive, inclusive, and non-discriminatory registration and participation of Kenyan citizens residing outside Kenya, regardless of whether such citizens reside in countries with Kenyan embassies, high commissions, or consulates.
f) Any other relief that this Court deems fit and just to uphold the Constitution and protect the rights of Kenyan citizens abroad.
g) Each party to bear their own costs as this Petition is brought in public interest.
Petitioner’s Case
3. The Petitioners averred that they are Kenyan citizens residing outside the country and are seeking to vindicate their right to vote under Article 38 of the Constitution. The 1 st Petitioner, resides in Dallas, Texas. He swore the supporting affidavit on behalf of all the Petitioners.
4. The Petitioners contend that the Kenyan diaspora population continues to grow and that by year 2023 it is estimated that it would be at approximately 4,000,000. He further states that diaspora remittances reached a record Kshs. 637.3 billion in 2024, representing approximately 4.6% of Kenya’s GDP. In his view, the diaspora therefore constitutes a significant economic and social constituency.
5. Despite this, the Petitioners aver they are, together with other Kenyans residing abroad, effectively excluded from participating in voting, by virtue of Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012. In particular, the impugned provision limits voter registration for Kenyan citizens residing outside Kenya to countries in which Kenya maintains an Embassy, High commission, or Consulate. Consequently, Kenyans residing in countries such as the United States, Canada, the Kingdom of Saudi Arabia, Australia, the United Kingdom, China, Sweden, Finland, Norway, Denmark, Belgium, and South Africa, among others, are allegedly unable to register or vote.
6. The Petitioners allege that although some Kenyans have travelled to countries such as the United States, Australia, Canada, and the United Kingdom to vote, this option is impractical for many due to the attendant costs. They therefore contend that the absence of adequate legislation to address this issue has effectively disenfranchised millions of Kenyans living in over 100 countries, thereby curtailing their right to vote.
7. By way of comparison, the Petitioners assert that countries such as Rwanda and Moldova have successfully implemented diaspora voting mechanisms, including the establishment of voter registration and polling centers outside embassy and consular premises. Similarly, the Republic of the Philippines is said to have implemented a structured overseas voting system under the Overseas Absentee Voting Act (Republic Act No. 9189), which allows eligible Filipino citizens residing abroad to register and vote through personal or postal voting at designated polling centers, including centers located outside embassy and consular premises. The United States of America is also said to have adopted internet voting as a primary mode of voting for overseas voters during its 2025 national elections. On that basis, it is argued that it is both practical and feasible for states to extend voter registration and polling facilities to diaspora populations beyond embassy or consular premises, thereby enhancing the realization of the right to vote for citizens residing abroad.
8. The Petitioners contend that the impugned Regulation imposes an unreasonable limitation that is discriminatory, arbitrary and unjustifiably conditions the enjoyment of a constitutional right on the existence of a diplomatic office. He stresses that this creates inequality in access to the franchise and violates Articles 24, 27, 38(3), 81, 82, and 83 of the Constitution. The Petitioners further aver that the limitation is unreasonable, unjustifiable, and disproportionate within the meaning of Article 24 of the Constitution. In addition, the impugned provision is said to undermine the progressive realization of the Petitioners’ voting rights and to be inconsistent with international instruments, particularly Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees every citizen the right to participate in public affairs.
9. Lastly, the Petitioners fault the Respondents for failing to undertake reforms or provide an effective policy response despite repeated calls for engagement with the 1 st Respondent and other relevant state agencies, thereby necessitating the filing of the present suit. In this regard, the Respondents are alleged to have failed to comply with Section 109 of the Elections Act and Section 25 of the Independent Electoral and Boundaries Commission Act.
1 st Respondent’s Case
10. Rebutting the Petition, the 1 st Respondent filed its response dated 3 rd July 2025.
11. At the outset, the 1 st Respondents asserts that while the right to vote is a fundamental right, it is not an inalienable right but a right subject to the limitations stipulated under Article 24 of the Constitution , hence not an absolute right.
12. The 1 st Respondent deposed that ever since the Elections (Registration of Voters) Regulations, 2012, came into force, it has undertaken significant steps to ensure that registration of Kenyans living in the diaspora as voters, is realized progressively, under the principle of incremental progress, toward a full-scale attainment of the right to vote. It is noted that in 2013, the number of registered voters in the diaspora in 2017 was 4,223, as compared to 10,444 registered voters in 2022.This increase was made possible owing to the criteria revolving around: there is a presence of a Kenyan Mission (Embassy, High Commission or consulate, number of registered citizens with Kenyan Missions in host countries, political environment in host governments should be conducive, stable and predictable and financial sustainability to support logistical, operational and administrative costs of carrying out such an activity .
13. Following this, the 1 st Respondent avers that it was able to conduct elections outside Kenya in Uganda, Tanzania, Rwanda, and South Africa in 2017. In 2022, it increased to 12 countries, being Uganda, Tanzania, Rwanda, South Africa, United States of America, Canada, South Sudan, Germany, United Kingdom, Qatar, and the United Arab Emirates. In addition, the 1 st Respondent has partnered with the State Department of Diaspora Affairs, to enhance the progressive participation of the diaspora community, by facilitating voting for Kenyan citizens in the diaspora.
14. Nevertheless, it is highlighted that implementation of the impugned Regulations has faced challenges especially with the pace of progress. Particularly, it is noted that implementation of the impugned Regulation has presented complex problems such as financial constraints. It is stressed that the 1 st Respondent’s financial sustainability to support logistical, operational and administrative costs of carrying out elections in the diaspora, is entirely dependent on the budgetary allocation passed by the Legislature.
15. To underscore this point, the 1 st Respondent avers that its’ preparations for the 2027 General Election are already facing a budget shortfall of at least KES 7.2 Billion, following the Cabinet revising downward its initial estimate of KES 61.7 billion, to KES 57.38 billion, as a measure of budget rationalization. Regardless, the 1 st Respondent states that it is still optimistic that the 2027 General Elections will be funded in three fiscal years, starting with Year 2025/2026.It further projects to gazette 55,393 polling stations up from 46,229 in 2022.
16. Considering these factors, the 1 st Respondent asserts that the measures it has undertaken has placed it in the right path towards full realization of Kenyans living in the diaspora, right to vote. Further to this, the 1 st Respondent is in the process of reviewing a Draft Strategic Plan for 2024-2029 which covers technological advancements, good governance practices, legal and regulatory requirements, as well as its long-term vision. This will enable the 1 st Respondent to improve its electoral operations and processes and ensure that it fulfils its mandate of conducting fair and transparent elections.
17. That said, the 1 st Respondent stresses that the impugned Regulations enjoy the presumption of constitutionality and thus the burden to prove otherwise rests on the Petitioners. Equally, it is argued that declaring the impugned Regulations unconstitutional will further throw into disarray, the Petitioner’s right to vote as there will be no express mechanism upon which the 1 st Respondent can realize this right.
18. Filing this Petition 13 years later is contended to be an afterthought as throughout this period, the 1 st Respondent has successfully conducted three general elections outside Kenya in 2013, 2017 and 2022, under the impugned, Regulation 34(2) of the Elections (Registration of Voters) Regulations, without any legal challenge.
19. Further to this, it is stressed that the 1 st Respondent cannot deviate from the impugned provision as it obligates it to restrict the process to designated embassies, high commissions, and consulates. The 1 st Respondent also reminds the Court that Article 10 (2) (c) of the Constitution obligates it to deliver a credible election within its principles.
20. That said, it is noted that the sovereign authority of the Republic of Kenya does not extend beyond its territorial boundaries except through diplomatic missions duly accredited under International Law. As such, attempting to conduct elections outside this limit will infringe the sovereignty of host states and violate the principles of international law and diplomacy.
21. In light of this, it is averred that the Petition is grossly misconceived and premature, as offends the doctrine of separation of powers in so far as the Petitioners’ seek an expanded diaspora voter registration and voting beyond embassies. Similarly, the Petition as pleaded is said not meet the test required for a constitutional petition. On this premise, the 1 st Respondent urges the Court to find that Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 is constitutional and dismiss the Petition.
2 nd Respondent’s Case
22. In reaction to the Petitioners’ case, the 2 nd Respondents’ filed undated Grounds of Opposition. The 2 nd Respondent opposes the Petition on the basis that:
i. The Petition is misconceived and legally untenable as it seeks to compel the implementation of diaspora voting in jurisdictions where the Republic of Kenya has no diplomatic presence, contrary to established principles of international law, sovereignty and diplomatic protocol.
ii. The Petition fails to appreciate that the right to vote, whilst fundamental, is not absolute and may be subjected to lawful limitations including logistical, administrative, financial and international legal constraints.
iii. The limitation imposed by Regulation 34(2) of the Elections (Registration of Voters) Regulations 2012, which restricts registration and voting of Kenyan citizens abroad to countries where Kenya maintains an Embassy, High Commission or Consulate is a reasonable, justifiable and proportionate limitation in an open and democratic society pursuant to Article 24 of the Constitution.
iv. The ability to facilitate voter registration and conduct elections abroad is directly contingent upon the presence of established consul infrastructure which provides the legal, administrative and logistical framework within which the Kenyan Government operates in foreign jurisdictions.
v. The sovereign authority of the Republic of Kenya does not extend beyond its territorial boundaries except through diplomatic missions duly accredited under international law. As such, any attempt to conduct elections or register voters outside Kenyan diplomatic missions would infringe the sovereignty of host states/our state and violate the principles of international law and diplomacy.
vi. The requirement that registration and voting of Kenyan citizens abroad be conducted at Kenyan Embassies, High Commissions or Consulates is a neutral and objective criterion. All Kenyan citizens living abroad are subject to the same conditions regardless of their geographical location. It therefore does not amount to arbitrary discrimination but is grounded in administrative necessity and the respect for the sovereignty of host nations.
vii. The Petition does not disclose any actual or threatened violation of the Constitution attributed to the 2 nd Respondent. The impugned Regulations 34(2) merely operationalizes the framework for registration of Kenyan citizens abroad in a manner consistent with Articles 38(3) and 82(1)(e) of the Constitution which provides for the progressive realization of diaspora
viii. The framers of the Constitution foresaw the hurdles that comes with registration and taking part in elections in countries without Kenyan consular and appreciated that this realization in such territories can only be progressive rather than as a matter of immediacy.
ix. The regulatory regime governing diaspora participation in elections, including the designation of polling stations at consulates and embassies reflects Kenya's ongoing and evolving efforts to realize electoral inclusion while ensuring compliance with diplomatic norms and institutional capacity.
x. The Petitioners have not established any unlawful omission or dereliction of duty by the 2 nd Respondent in either promoting electoral reforms or facilitating diaspora voting, particularly as the Implementation of Regulation 34(2) falls within the mandate of the 1 st Respondent, that is an independent office and the relevant legislative arms.
xi. The Petitioners have not established with specificity any credible or immediate risk of disenfranchisement as the voter registration exercise for the upcoming general elections has not yet begun neither has a determination on the polling centers been made.
xii. The Petitioners have not met the constitutional threshold under Article 24 to demonstrate that the limitations imposed by Regulation 34(2) are unreasonable or unjustifiable in a democratic society and the reliefs sought are speculative, overbroad and incapable of implementation without violating other constitutional provisions and international norms.
xiii. The reliefs sought, including the potential invalidation of Regulation 34(2) would amount to unwarranted judicial interference with the policy making. legislative functions and mechanics of voter registration constitutionally vested in the Independent Electoral and Boundaries Commission, Parliament and the Executive.
xiv. The issues raised by the Petitioners are matters of administrative policy and legislative discretion and are therefore ill-suited for adjudication by this Court in the manner framed.
xv. The Petition is therefor without merit, an abuse of the court process and ought to be dismissed with costs to the Respondents.
3 rd Respondent’s Case
23. Rebutting the Petition, the 3 rd Respondent filed Grounds of Opposition dated 12 th April 2026 on the basis that:
i. While the Petitioners are entitled to approach this Court, the relief sought in the Petition, particularly the directive compelling Parliament to undertake legislative reforms, respectfully invites this Court to venture into the exclusive legislative mandate of the National Assembly, contrary to the principle of separation of powers enshrined in Articles 94(5) and 95 of the Constitution.
ii. The prayers sought, particularly the “Legislative Directive” compelling Parliament to undertake legislative reforms, constitute an invitation for this Court to engage in judicial overreach by usurping the constitutional function of the National Assembly.
iii. Further, the Petitioners have failed to demonstrate that the legislative process leading to the enactment of Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 was flawed or that Parliament exceeded its delegated authority under Section 109 of the Elections Act (Cap 7) and the Statutory Instruments Act.
iv. There exists a presumption of constitutionality regarding all duly enacted laws and regulations, and the burden lies with the Petitioners to demonstrate, with cogent evidence, that the impugned Regulation 34(2) of the Elections (Registration of Voters) Regulations is unconstitutional; a burden they have failed to discharge.
v. Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012, is a valid exercise of delegated legislative authority and is not ultra vires the Constitution. It provides a practical and administrative framework for the Independent Electoral and Boundaries Commission (“IEBC”) to operationalize diaspora voting.
vi. Applying the principle of purposive interpretation established in the cases of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR and The Queen v Big M Drug Mart Ltd , the purpose and effect of the impugned Regulation 34(2) must be discerned by considering the intention of the legislature, the mischief sought to be remedied and the context of the entire statute and Constitution; in this regard, the right to vote for citizens residing outside Kenya under Article 82(1)(e) of the Constitution is subject to progressive realization, a principle affirmed in Advisory Opinion No. 2 of 2012 and Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR) , which acknowledges that the full realization of such rights may be achieved over time due to logistical, financial, and administrative constraints.
vii. The Petitioners have failed to discharge their burden of demonstrating that Regulation 34(2) is not the “least restrictive means” to achieve the legitimate aim of managing diaspora voting logistically, as required under Article 24 of the Constitution, which mandates that any limitation on rights must employ the method that restricts the right no more than is necessary to accomplish the objective, yet the Petitioners have not shown any feasible, practical and secure alternative mechanism to the embassy-based system that would achieve the same administrative goals while imposing a lesser restriction on voting rights.
viii. Furthermore, Regulation 34(2) does not discriminate against Kenyan citizens on the basis of geographical location under Article 27 of the Constitution. The regulation applies uniformly to all Kenyans residing outside the country and is based on a neutral and objective criterion (the existence of State infrastructure) rather than targeting any specific group.
ix. The National Assembly has not abdicated its constitutional mandate. The assertion that Parliament has failed to enact legislation for the progressive registration of diaspora voters is factually incorrect and made in bad faith.
x. In furtherance of its mandate under Article 82(1)(e), the National Assembly is currently considering The Elections (Amendment) (No.2) Bill, 2024. The Bill proposes the introduction of Section 8A, which seeks to institutionalize independent voter register audits and enhance the accuracy and inclusivity of electoral systems for citizens abroad, thereby advancing the progressive realization of diaspora voting rights.
xi. The pendency of the said Bill before the House demonstrates that the legislative process regarding diaspora voting is dynamic and ongoing and this Court should not issue orders that would preempt or interfere with that process.
xii. The Petitioners have failed to demonstrate a specific, clear and present breach of any negative constitutional obligation by the National Assembly contrary to the principle upheld in Anarita Karimi Njeru v Republic [1979] KLR 1272 where a party seeking constitutional relief is obligated to set out with reasonable precision the provisions alleged to be infringed and the manner of infringement.
xiii. In the present matter, the Petitioners have merely listed numerous constitutional provisions without demonstrating, with any degree of specificity, how the National Assembly has violated any constitutional duty.
4 th Interested Party’s Case
24. The 4 th Interested Party in reaction to the Petition filed its Replying Affidavit through its Chief Executive Officer, Mercy K. Wambua, sworn on 5 th September 2025.
25. Reiterating the key challenge in this matter, the 4 th Interested Party contends that the balance between facilitating the broadest possible enjoyment of political rights and addressing logistical, security and administrative considerations in electoral management requires consideration.
26. The 4 th Interested party acknowledges that Kenyans residing abroad without access to diplomatic missions may encounter difficulties in exercising their political rights under the existing regulatory framework but at the same time appreciates that the Respondent bears the responsibility of safeguarding the integrity, practicality, and credibility of the electoral process. In this regard, the 4 th Interested Party emphasizes that international practice and jurisprudence recognize that States retain a measure of discretion in structuring diaspora voting systems, provided that such arrangements do not impose unreasonable or unjustifiable limitations on the exercise of political rights.
27. In light of this, the 4 th Interested Party underscores the need for this Court to examine whether the impugned Regulation imposes a reasonable and justifiable limitation on the right to vote under Article 24 of the Constitution and whether the Regulation, in its current form, is consistent with the principles of inclusiveness, equality, and non-discrimination under Article 10 of the Constitution.
28. In light of the foregoing, it is submitted that this Petition will offer important guidance on striking a balance between electoral administration and the realization of political rights for Kenyans in the diaspora. Accordingly, the 4th Respondent urges the Court to consider the constitutional issues raised and give appropriate guidance.
Petitioners’ Submissions
29. Mulandi Kisabit and Associates Advocates for the Petitioners filed submissions dated 16 th January 2026 and outlined the issues for determination as follows:
- whether the Petition meets the threshold of a constitutional petition, -whether this Court has jurisdiction to entertain this matter and,
- whether Regulation 34(2) of the Elections (Registration of Voters) Regulations unreasonably limits the voting rights of Kenyans in the diaspora.
30. On the first issue, Counsel answered in the affirmative. Counsel relied on Rule 4(1) and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 to submit that the Petition meets the threshold of a constitutional petition. Counsel emphasized that the Petition highlights violation of the Petitioners’ rights and the manner in which these violations have been occasioned by the Respondents. Particularly, the Petition highlights Articles 1, 2, 3(1),10, 19, 20, 21, 22, 23, 24, 27, 38,48, 81, 82, 88, 156 (6), 258 and 259 of the Constitution and demonstrates the key particulars of the Petitioners claim.
31. To further buttress this point, Counsel cited the case of Anarita Karimi Njeru v the Republic (1979) KLR 1272 where the Court emphasized the importance of reasonable precision in pleading a constitutional violation as follows:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if any to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
32. To further support this Petition, Counsel relied on Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) .
33. On jurisdiction, citing the case of Owners of Motor Vessel (Lilian S) v Caltex Oil (Kenya Ltd) [1989] KLR 1 to emphasize the significance of jurisdiction and argued that this Court has the jurisdiction to hear this matter by dint of Article 165 (3) (b) of the Constitution.
34. As to the issue of whether Regulation 34(2) of the Elections (Registration of Voters) Regulations unreasonably limits the voting rights of Kenyans in the diaspora, it was submitted on behalf of the Petitioners that this Petition does not in any way seek preferential treatment, instead, it challenges the practical and disproportionate limitation imposed by the impugned provision as restricts voter registration and polling only at the embassy, high commission and consulate premises, without regard to Kenyan citizens population distribution, distance of travel, cost of travel or feasibility in countries with a large land mass like the United States, Australia, China among others. This is despite evidence that other countries with equal diplomatic mission in these countries have allowed temporary polling centers without causing any jurisdiction issues such as in the case of Rwanda. Considering this, it was submitted on behalf of the Petitioner that failure to adopt similar alternatives curtails the Petitioners rights under Article 38 of the Constitution.
35. The Petitioners submit the regulation conditions the enjoyment of the constitutional right on the geographical location of a diplomatic office, an administrative factor entirely unrelated to voter eligibility or electoral integrity. Owing to this, Counsel reiterated that Kenyan citizens in the United States, Canada, Australia and the United Kingdom, countries where Kenya already maintains diplomatic missions, are compelled to incur exorbitant travel costs per trip, often traversing distances exceeding 2,000 to 6,000 kilometers just to exercise their right to vote. On the other hand, Kenyan citizens residing in countries such as United States, Canada, Kingdom of Saudi Arabia, United Kingdom, Australia, China, Sweden, Finland, Norway, Denmark, Belgium, South Africa among others have been unable to register as voters and to vote unless they incur significant travel costs to reach a designated mission often across different states, territories, provinces and countries to access polling stations, which is both impractical and financially burdensome. Accordingly, Counsel argued that the impugned provision creates indirect discrimination contrary to Article 27 of the Constitution, by privileging those who live near diplomatic offices and disadvantaging those who do not.
36. To buttress this point reliance was placed in Kituo cha Sheria v. IEBC & Another [2013] eKLR where it was held that:
“In conclusion, the Learned Judge directed, “The government and IEBC must be told that they need to put in place efficient, concrete and realistic mechanisms including fiscal and logistical measures to ensure that all citizens living abroad take part in the General Election following the March 2013 elections.” Unlike, the situation in the Priscilla Kanyua Case (Supra) where the order was directed to ensure that prisoners vote in the referendum, the General Election involves elections at several levels of government and it is in this respect that the sentiments of Justice Lenaola I have alluded to are apposite particularly given the specific challenges of the first general elections... [33]. The obligation of the Court is to give effect to the rights contained in the Bill of Rights and the fact that giving effect to these rights may be inconvenient cannot override constitutional imperatives. In the Arnold Keith August Case (Supra), Justice Sachs noted that the Court did not have information or expertise to enable it decide the nature of arrangements which should be made or how they should be effected once the court had made a finding that prison inmates were entitled to vote. I
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