[1] The Petitioner is a citizen of the United States of America born in the State of Texas on the 17 th December 1946 to African American parents. He holds a valid USA passport No. 56XXXX623. In his Petition dated 25 th January 2024, the petitioner stated that he was aware that many African Americans were descendants of the slaves who had been captured from Africa and transported in the harshest, unhygienic and inhuman manner by European slave traders to British colonies in the Americas.
[2] He further stated, by way of background, that the slaves were then sold and compelled to provide cheap labour mainly in agricultural plantations. That the slave trade lasted for over three centuries, leaving millions of Africans torn from their families and languishing in neglect and poverty all over the world, with the largest number in America. He added that the illicit slave trade and trafficking of humans with its degrading and debilitating conditions had an impact on Africans and constituted one of the greatest tragedies in the history of humanity in terms of scale and duration.
[3] The petitioner further stated that that he is conscious of his roots and heritage in the African continent; and therefore, in 2003, he visited Kenya for the first time. He later returned to Kenya in 2008 and found solace, warmth, and comfort, albeit being a foreigner. Since his return, he has invested, established, and registered several businesses in Kenya that operate in Kwale County. The businesses include Tabuk Expedition East Africa, Hagar Water Well, agribusiness in coffee and avocado farming as well as trade in processed coffee and tea. In addition, he stated he had also invested in land in Tiwi areas of Kwale County which he purchased for the purpose of expanding his businesses.
[4] The Petitioner contended that, as an American with African roots, he has an inalienable right to his ancestral home and motherland and explained that his conscious choice was Kenya. He added that his decision to return to Africa was also supported and informed by the provisions of the Abuja Proclamation – a declaration of the Pan-African Conference on Reparations for African Enslavement, Colonization and Neo-Colonization by the African Union formerly known as the Organization of African Unity held on 27 th – 29 th April 1993 in Abuja, Nigeria. He mentioned in his Petition that the Abuja Proclamation forms part and parcel of the Laws of Kenya by dint of the provisions of Article 2(5) and (6) of the Constitution of Kenya.
[5] Concerning the Abuja Proclamation, the petitioner pleaded that it called upon all African states to grant entrance to all persons of African descent. He stated that pursuant to the said Proclamation he has made several unsuccessful applications for registration as a Kenyan Citizen to the Department of Immigration; the latest being his application dated 29 th September 2023, filed by his Advocate. He pointed out that none of the letters have elicited any response from the 1 st or 2 nd respondents. The petitioner now contends that such inaction amounts to a denial of his rights under Article 47 (1) and (2) of the Constitution.
[6] The petitioner further pleaded that, in the letters aforementioned he gave justification for his request for Kenyan citizenship. He added that his application for citizenship was informed by his understanding that he is not a refugee, asylum seeker, immigrant, emigrant, foreigner, visitor or exilee. Therefore, the petitioner prayed for the following reliefs:
[a] A declaration that his rights under the Constitution have been violated.
[b] A declaration that Kenya is under obligation of the Constitution to respect, uphold and comply with the general rules of international law including treaties and conventions to which Kenya is a party.
[c] A declaration that under the rules of international law and the Constitution of Kenya, the petitioner’s right of return to his ancestral home, and his choice of Kenya as his country of return is guaranteed and protected.
[d] An order that the Director of Immigration and Citizen Services under the Ministry of Interior and National Administration be directed to, within 30 days of this Judgment, henceforth recognize the petitioner as a Kenyan citizen and issue him with a Kenyan Passport and a National Identity Card as of right.
[e] Costs of the Petition.
[f] Any other relief that the Court may deem just and expedient for the ends of justice.
[7] In response to the Petition, the respondents filed a Replying Affidavit sworn on 8 th May 2024 by Mr. Ronnie Akedi , Assistant Director, Immigration Services within the Compliance and Enforcement Division of the Directorate of Immigration; a docket under the Ministry of Interior and National Administration. He averred that their mandate is to ensure compliance with the Constitution, Kenya Citizenship and Immigration Act and other enabling legislations with regard to citizenship of Kenya.
[8] The respondents acknowledged that the petitioner has been living in Kenya having been granted a Class K permit; which is granted to ordinary residents. However, they refuted the claim that the petitioner's ancestors were forcefully captured from Africa by European slave traders and taken to British Colonies and later sold in the Americas. The respondents stated that it is misplaced for the petitioner to assume a standard collective approach that presupposes that the ancient-era slave trade had its roots in the modern-day Republic of Kenya. They contended that the petitioner had not provided proof to support his allegations.
[9] The respondents maintained that the petitioner’s investments in Kenya do not ipso facto give him a claim on Kenyan Citizenship. They stated that the Constitution and more specifically Kenya Citizenship and Immigration Act accord foreigners an opportunity to work or engage in business in Kenya in compliance with the law. They added that investing in Kenya does not, in itself, present a criterion for one to be registered as a citizen.
[10] The respondents further questioned the petitioner’s yardstick for picking Kenya as his country of choice, among 54 African countries. They posited that the petitioner’s conviction that the Republic of Kenya is his motherland is baseless. Further, it was the contention of the respondents that reliance on the Abuja Proclamation by the petitioner is misplaced; granted that he is an American by birth. They therefore averred that the petitioner cannot claim to have an enforceable right under the Abuja Declaration, passed in 1993.
[11] It was further the contention of the respondents that it was ill-conceived for the petitioner to believe that all people of black race are descendants of emigrants from the African continent. He urged the court to take judicial notice that African people can be found in America and some parts of the Middle East/Asian Continents as rightful citizens.
[12] Regarding citizenship by birth, the respondents relied on Articles 14 and 15 of the Constitution respectively and stated that Article 2(4) cements the supremacy of the Constitution and the law. According to the respondents the laws relied on in the Petition that are inconsistent with the Constitution are null and void. They explained that all applications for citizenship are made online through the Kenya Foreign Nationals Portal (eFNS) wherein an applicant is required to complete and upload statutory forms and supporting documents for consideration.
[13] At paragraph 16 of their Replying Affidavit, the respondents averred that the doctrine of sovereignty of nations connotes that the right to enter and live in Kenya as a citizen is the preserve of Kenya citizens only; and that all foreigners are subject to the national immigration law of Kenya. They were categorical that no procedural application to be registered as a Kenyan citizen has ever been received from the petitioner and therefore his Petition is presumptive and an abuse of the process of the Court.
[14] The parties adduced viva voce evidence herein. The petitioner testified as PW1. He reiterated his averments in the Petition. In addition to adopting his witness statement dated 20 th May 2024 and the Supporting Affidavit sworn by him on 25 th January 2024 and the documents annexed thereto as part of his evidence in chief, the petitioner filed a Further Affidavit sworn on 21 st May 2024. He explained that he came to Kenya for the first time in 2003; and that when he retired from his job in 2008, he moved to Kenya to stay. He has therefore been staying in Kenya since then. He resides in Boa village in Kwale and is running four businesses. He made it plain that he is gainfully employed and does not seek any compensation from the Government of Kenya.
[15] The petitioner reiterated his stance that the Abuja Proclamation gives him the right to return to Africa; and explained that he chose Kenya because it is closer to the holy places like Mecca. He produced his Bundle of Documents as the Petitioner’s Exhibits 1 to 10 and urged that his Petition be allowed and the orders sought granted.
[16] On behalf of the defendants, Mr. Ronnie Akanga (DW1) testified that the petitioner has never filed a formal application to be registered as a Kenyan citizen. He explained that an application for citizenship must be made electronically via the e-Citizen portal. It was further the testimony of DW1 that foreigners are allowed to work in Kenya as long as they meet the required conditions set out in Article 15 of the Constitution and the relevant provisions of the Kenya Citizenship and Immigration Act.
[17] Regarding the petitioner’s residence in Kenya, DW1 testified that, from their records, the petitioner has lived in Kenya intermittently for about four and a half years, yet Section 14(1) of the Kenya Citizenship and Immigration Act talks of lawful continuous residence for seven years. He therefore stated that, as at now, the petitioner is not eligible for registration as a citizen of Kenya.
[18] In his closing submissions dated 18 th September 2024, the petitioner argued that the 2 nd respondent’s online application system is uniquely customized to solely serve applicants who are foreign nationals and to whom the conditions spelt out in Article 15 of the Constitution as well as Section 13 of the Citizenship and Immigration Act apply. In his view, the system has no inherent capabilities to serve other non-Kenyan applicants whose circumstances are different from those articulated under Section 13 of the Act.
[19] In the premises, the petitioner posed the question: where does this leave an applicant like him whose desire to be registered as a citizen is informed by the principles of international law which are not provided for in the current statute; hence not configured in the 2 nd respondent’s online application platform. The petitioner submitted that the system must have capabilities to accommodate all types of applications from non-Kenyans. To that extent, the petitioner submitted that the 2 nd respondent’s online application system is designed to block and deny the petitioner access to information and justice, contrary to Articles 35 and 48 of the Constitution. He further submitted that the system is discriminatory and therefore a violation to the right to equality and freedom from discrimination as guaranteed under Article 27 of the Constitution.
[20] In the light of the foregoing, the petitioner proposed the following issues for determination:
[a] Whether the principles of international law relied upon by the petitioner apply to Kenya;
[b] Whether the petitioner is eligible under international law to claim registration as a citizen of Kenya;
[c] Whether it behooves the 2 nd respondent and the Kenyan Government to create an online portal to cater for applications based on the international laws cited by the petitioner.
[d] Whether the petitioner is entitled to the reliefs sought in his Petition.
[21] On whether the principles of international law relied on by the petitioner apply in Kenya, the petitioner placed reliance on the preamble as well as Articles 2(5) and 2(6) of the Constitution of Kenya and submitted that the Republic of Kenya has adopted a monist practice which recognizes international law as being part of its national law. The petitioner relied on an article by Makumi Mwagiru titled “From Dualism to Monism: The Structure of Revolution in Kenya’s Constitutional Treaty Practice” published in the Journal of Language, Technology & Entrepreneurship in Africa Vol. 3 No. 1, 2011 in which the author stated:
“Once the treaties have become law in this way, the courts will interpret them as is their judicial function. The role of the courts will not just be limited to interpreting the treaties in a national decision making framework. In their role as interpreters of treaties, the courts are set to contribute significantly to the development of international jurisprudence, and especially international human rights law.”
[22] The petitioner also relied on Tinyefuza v Attorney General Constitutional Petition No. 1 of 1996 [1997] UGCC3, Communications Commission of Kenya & others v Royal Media Services [2015] eKLR, The Speaker of the Senate & another v the Attorney General & others [2013] eKLR for the principle that the Constitution must be interpreted in a holistic manner, taking into consideration the historical, economic, social and political backgrounds of each of the Articles contained therein. He therefore submitted that the principles of international law are all applicable as part of the laws of the Republic and therefore, since Kenya is a member of the United Nations and the African Union, it is duty-bound to uphold, respect and defend all the treaties, conventions and proclamations passed by the two bodies.
[23] On whether the petitioner is eligible under international law to claim registration as a citizen of Kenya, his submission was that he had demonstrated his special ties with Africa and presented evidence of the history of slave trade in the world which resulted in his ancestors being forcibly captured and sold to America as slaves. He therefore urged the Court to find and hold that his American nationality was not a matter of choice but of historical accident brought about by circumstances beyond his control. He therefore urged the Court to allow the Petition and to grant all the remedies sought therein.
[24] In their written submissions dated the 30 th October 2024, the 1 st 2 nd and 3 rd respondents reiterated the background facts as set out in their Replying Affidavit. They proposed the following issues for determination:
[a] Whether the principles of international law relied upon by the petitioner apply to Kenya;
[b] Whether the petitioner is eligible under international law to claim registration as a citizen of Kenya;
[c] Whether the Foreign National Service Portal is sufficient to make any application by a foreign national.
[25] The respondents acknowledged the supremacy of the Constitution as spelt out in Article 2(1) thereof. They also relied on Wanjiku & another v Attorney General & another, Muna & another (Interested Parties) (Petition 190 of 2011) [2011] KEHC 5410 (KLR) and Mitu-Bell Welfare Society v Kenya Airports Authority [2018] eKLR to support their submission that the framers of the Constitution did not intend that international conventions and treaties should be superior to local legislation and take precedence over laws enacted by their own representatives under the provisions of Article 94 of the Constitution.
[26] On the basis of the authorities mentioned above, the respondents submitted that the Abuja Proclamation does not constitute a general rule of international law. In their submission, a proclamation is just a public statement and/or announcement issued by a person/authority and therefore does not fit the nature of the legal regimes contemplated under Article 2(5) and (6) of the Constitution.
[27] On whether the petitioner is eligible under international law to claim registration as a citizen of Kenya, it was the respondents’ argument that the only lawful avenue for acquiring Kenyan citizenship by a foreign national such as the petitioner is through registration as contemplated under Sections 13 and 18 of the Kenya Citizenship and Immigration Act as read with Section 9 of the Kenya Citizenship and Immigration Regulations , No. 12 of 2011. They reiterated their posturing that the petitioner is yet to submit a formal application as envisaged by the law and relied on Wanjiku & another v Attorney General & another (supra) to buttress their arguments.
[28] According to the respondents, the Foreign Nationals Service Portal is sufficient to address any application by a foreign national, including applications for registration under Sections 13 and 18 of the Act. They urged the Court to find that the applicant has not demonstrated any justifiable cause for the issuance of the orders sought.
[29] I have given careful consideration to the averments set out by the petitioner in his Petition, the affidavits filed in support as well as his evidence as set out in the written statement dated 20 th May 2024 and the viva voce evidence adduced herein by him. I have likewise considered the responses filed by the respondents, the evidence adduced on their behalf by DW1. I have also given due consideration to the written submissions filed on behalf of the parties by their learned counsel.
[30] The uncontested facts are that the petitioner is a citizen of the United States of America, having been born in the State of Texas on 17 th December 1946. There is equally no dispute that he first came to Kenya in the year 2003. He returned in 2008 and has since engaged in business pursuits from his base in the County of Kwale. He is presently registered as a foreign national under a Certificate of Registration. He described himself as an African-American and held the conviction that his ancestors were forcibly taken away from Africa and sold as slaves to America to offer free labour in plantations.
[31] As has been pointed out hereinabove, the respondents took issue with the petitioner’s approach. In their view, it is misplaced for the petitioner to assume a standard collective approach that presupposes that the ancient-era slave trade that effected Africans to the United States of America had its roots in the modern-day Republic of Kenya. That, however appears to be a misapprehension of the petitioner’s case. The petitioner made it clear that his claim to Kenyan citizenship is premised on the Abuja Proclamation and that the Proclamation is enforceable across the African Continent by African Union state parties, of which Kenya is one.
[32] The fact of slave trade is a matter of historical notoriety of which the Court is entitled to take judicial notice. The petitioner also made it plain why he chose Kenya, namely, the warmth and solace he has experienced since his first visit in 2003 and the fact that it is closer to the holy sites, such as Mecca, for purposes of the practice of his religious faith.
[33] It is also significant that the petitioner was granted registration as a foreign national; and that, as an investor, he has four registered companies to his credit. He is therefore perfectly entitled to seek to be registered as a citizen of Kenya. Indeed, the Abuja Proclamation Abuja Proclamation – a declaration of the Pan-African Conference on Reparations for African Enslavement, Colonization and Neo-Colonization by the African Union formerly known as the Organization of African Unity held on 27 th – 29 th April 1993 in Abuja, Nigeria recognizes that descendants of slaves ought to be allowed to return to Africa and be recognized as citizens. One of the provisions states:
“To grant entrance as of right to all persons of African descent and right to obtain residence in those African states, if there is no disqualifying element on the African claiming the right of return to his ancestral home, Africa.”
[34] The respondents acknowledged that the petitioner has been living in Kenya intermittently, having been granted a class K permit. Accordingly, by dint of the Abuja declaration and given the fact of having lived in Kenya for a period of time, he was and is still at liberty to apply for citizenship by way of registration. Article 15 of the Constitution is explicit:
(1) A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen.
(2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen.
(3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered as a citizen.
(4) Parliament shall enact legislation establishing conditions on which citizenship may be granted to individuals who are citizens of other countries.
(5) This Article applies to a person as from the effective date, but any requirements that must be satisfied before the person is entitled to be registered as a citizen shall be regarded as having been satisfied irrespective of whether the person satisfied them before or after the effective date, or partially before, and partially after, the effective date.
[35] He stated that pursuant to the said Proclamation he has made several unsuccessful applications for registration as a Kenyan Citizen to the Department of Immigration; the latest being his application dated 29 th September 2023, filed by his Advocate. He pointed out that none of the letters have elicited any response from the 1 st or 2 nd Respondents. The petitioner now contends that such inaction amounts to a denial of his rights under Article 47 (1) & (2) of the Constitution. He also alleged violation of his right to equality and freedom from discrimination under Article 27 as well as his right to dignity under Article 28 of the Constitution.
[36] In the premises, the issues for determination are:
[a] Whether the petitioner has proved the alleged violation of his constitutional rights under Articles 27, 28 and 47 of the Constitution.
[b] Whether the petitioner is entitled to the reliefs sought.
A. On the alleged violation of the petitioner’s constitutional rights:
[37] The fulcrum of the petitioner’s claim is the alleged violation of his right to fair administrative action. The petitioner contended that his right to fair administrative action has been infringed in that the 2 nd respondent did not respond to his two letters where he sought to be a citizen of Kenya.
[38] Article 47 of the Constitution provides:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.
[39] The Constitution applies to all individuals and state organs in the execution of their duties. Article 47 mandates that administrative actions must be conducted in a manner that is prompt, fair, lawful, and reasonable. Furthermore, if such an action negatively impacts a person’s rights or fundamental freedoms, the individual has the right to receive written justification for the decision.
[40] Therefore, in Judicial Service Commission v Mbalu Mutava & another [2014] eKLR the Court of Appeal held that:
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
[41] In this case, the Petitioner has alleged that his right under Article 47 was infringed when the Respondents ignored his applications for citizenship via letters dated the 18 th March 2023 and 29 th September 2023.
To be a citizen of Kenya one has to comply with Chapter Three of the Constitution. Article 13(2) of the Constitution provides that citizenship may be acquired by birth or registration. Under Article 18 of the Constitution, Parliament is mandated to enact a specific legislation for the purposes of:
(a)prescribing procedures by which a person may become a citizen;
(b)governing entry into and residence in Kenya;
(c)providing for the status of permanent residents;
(d)providing for voluntary renunciation of citizenship;
(e)prescribing procedures for revocation of citizenship;
(f)prescribing the duties and rights of citizens; and
(g)generally giving effect to the provisions of this Chapter.
[42] In line with the provisions of Article 18 of the Constitution, Parliament enacted the Kenya Citizenship and Immigration Act whose preamble indicates that it is “ an Act of Parliament to provide for matters relating to citizenship; issuance of travel documents; immigration and for connected purposes”.
[43] In the present case, the petitioner has already shown that he is lawfully in the country and holds a Foreigner Certificate No. 358660. Section 13 provides for lawful residents such as the petitioner. It states:
(1) A person who has attained the age of majority and capacity who has been lawfully resident in Kenya for a continuous period of at least seven years may on application be registered as a citizen if that person—
(a) has been ordinarily resident in Kenya for a period of seven years, immediately preceding the date of application;
(b) has been a resident under the authority of a valid permit or has been exempted by the Cabinet Secretary, in accordance with section 34 (3)(h) and who is not enjoying the privileges and immunities under the Privileges and Immunities Act ( Cap. 179 );
(c) has resided in Kenya throughout the period of twelve months immediately preceding the date of the application;
(d) has an adequate knowledge of Kenya and of the duties and rights of citizens as contained in this Act;
(e) is able to understand and speak Kiswahili or a local dialect;
(f) understands the nature of the application under subsection (1);
(g) has not been convicted of an offence and sentenced to imprisonment for a term of three years or longer;
(h) satisfies the Cabinet Secretary that he or she intends to reside in Kenya after registration;
(i) has been determined, through an objective criteria, and the justification made, in writing, that he or she has made or is capable of making a substantive contribution to the progress or advancement in any area of national development within Kenya; and
(j) is not an adjudged bankrupt.
(2) The Cabinet Secretary shall not register an applicant as a citizen of Kenya under this section if at the date of making the application applicant’s country of citizenship is at war with Kenya.
(3) A child of a citizen by registration who was born before the parent acquired citizenship may on application by the parent or legal guardian be registered as a Kenya citizen upon—
(a) production of documents conferring Kenyan citizenship to any of the parents;
(b) production of the child’s birth certificate; and
(c) proof of lawful residence of the child in Kenya.
(4) A person who is a dependant of any biological parent or who is under the legal guardianship of a person who is a citizen of Kenya by registration shall, upon application made in the prescribed manner, be registered as a citizen upon—
(a) production of documents conferring Kenyan citizenship to any of the parents or the legal guardian;
(b) production of the child’s or the person with disability’s birth certificate; and
(c) proof of lawful residence of the child or person with disability in Kenya.
[44] Further, Regulation 9 of the Kenya Citizenship and Immigration Regulations, 2012 provides for the application for citizenship by registration and it states:
(1) A person who wishes to be registered as a citizen of Kenya under sections 10, 11, 12, 13, 14, 15, 16, 17 or 18 of the Act shall apply to the Cabinet Secretary, in Form 8, 9, 10, 11, 12, 13, 14 or 15 set out in the First Schedule, whichever is applicable to be registered as a citizen of Kenya.
(2) Every application made to the Cabinet Secretary under the sections referred to in paragraph (1) shall be—
(a)accompanied by the prescribed non-refundable application fee, where applicable;
(b)supported by such documentary or other evidence of the facts stated therein, in such other manner as the Cabinet Secretary may require; and
(c)verified by a declaration made before a magistrate, commissioner for oaths or notary public.
(2A) Notwithstanding paragraph (2), the Cabinet Secretary may waive the requirements of paragraphs 2 (a) and (b) for applications made under sections 15, 16 and 17 of the Act.
(3) A person who qualifies for registration as a citizen of Kenya shall take an oath or affirmation of allegiance set out in the Second Schedule before the person is issued with a certificate of registration a
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[2] He further stated, by way of background, that the slaves were then sold and compelled to provide cheap labour mainly in agricultural plantations. That the slave trade lasted for over three centuries, leaving millions of Africans torn from their families and languishing in neglect and poverty all over the world, with the largest number in America. He added that the illicit slave trade and trafficking of humans with its degrading and debilitating conditions had an impact on Africans and constituted one of the greatest tragedies in the history of humanity in terms of scale and duration.
[3] The petitioner further stated that that he is conscious of his roots and heritage in the African continent; and therefore, in 2003, he visited Kenya for the first time. He later returned to Kenya in 2008 and found solace, warmth, and comfort, albeit being a foreigner. Since his return, he has invested, established, and registered several businesses in Kenya that operate in Kwale County. The businesses include Tabuk Expedition East Africa, Hagar Water Well, agribusiness in coffee and avocado farming as well as trade in processed coffee and tea. In addition, he stated he had also invested in land in Tiwi areas of Kwale County which he purchased for the purpose of expanding his businesses.
[4] The Petitioner contended that, as an American with African roots, he has an inalienable right to his ancestral home and motherland and explained that his conscious choice was Kenya. He added that his decision to return to Africa was also supported and informed by the provisions of the Abuja Proclamation – a declaration of the Pan-African Conference on Reparations for African Enslavement, Colonization and Neo-Colonization by the African Union formerly known as the Organization of African Unity held on 27 th – 29 th April 1993 in Abuja, Nigeria. He mentioned in his Petition that the Abuja Proclamation forms part and parcel of the Laws of Kenya by dint of the provisions of Article 2(5) and (6) of the Constitution of Kenya.
[5] Concerning the Abuja Proclamation, the petitioner pleaded that it called upon all African states to grant entrance to all persons of African descent. He stated that pursuant to the said Proclamation he has made several unsuccessful applications for registration as a Kenyan Citizen to the Department of Immigration; the latest being his application dated 29 th September 2023, filed by his Advocate. He pointed out that none of the letters have elicited any response from the 1 st or 2 nd respondents. The petitioner now contends that such inaction amounts to a denial of his rights under Article 47 (1) and (2) of the Constitution.
[6] The petitioner further pleaded that, in the letters aforementioned he gave justification for his request for Kenyan citizenship. He added that his application for citizenship was informed by his understanding that he is not a refugee, asylum seeker, immigrant, emigrant, foreigner, visitor or exilee. Therefore, the petitioner prayed for the following reliefs:
[a] A declaration that his rights under the Constitution have been violated.
[b] A declaration that Kenya is under obligation of the Constitution to respect, uphold and comply with the general rules of international law including treaties and conventions to which Kenya is a party.
[c] A declaration that under the rules of international law and the Constitution of Kenya, the petitioner’s right of return to his ancestral home, and his choice of Kenya as his country of return is guaranteed and protected.
[d] An order that the Director of Immigration and Citizen Services under the Ministry of Interior and National Administration be directed to, within 30 days of this Judgment, henceforth recognize the petitioner as a Kenyan citizen and issue him with a Kenyan Passport and a National Identity Card as of right.
[e] Costs of the Petition.
[f] Any other relief that the Court may deem just and expedient for the ends of justice.
[7] In response to the Petition, the respondents filed a Replying Affidavit sworn on 8 th May 2024 by Mr. Ronnie Akedi , Assistant Director, Immigration Services within the Compliance and Enforcement Division of the Directorate of Immigration; a docket under the Ministry of Interior and National Administration. He averred that their mandate is to ensure compliance with the Constitution, Kenya Citizenship and Immigration Act and other enabling legislations with regard to citizenship of Kenya.
[8] The respondents acknowledged that the petitioner has been living in Kenya having been granted a Class K permit; which is granted to ordinary residents. However, they refuted the claim that the petitioner's ancestors were forcefully captured from Africa by European slave traders and taken to British Colonies and later sold in the Americas. The respondents stated that it is misplaced for the petitioner to assume a standard collective approach that presupposes that the ancient-era slave trade had its roots in the modern-day Republic of Kenya. They contended that the petitioner had not provided proof to support his allegations.
[9] The respondents maintained that the petitioner’s investments in Kenya do not ipso facto give him a claim on Kenyan Citizenship. They stated that the Constitution and more specifically Kenya Citizenship and Immigration Act accord foreigners an opportunity to work or engage in business in Kenya in compliance with the law. They added that investing in Kenya does not, in itself, present a criterion for one to be registered as a citizen.
[10] The respondents further questioned the petitioner’s yardstick for picking Kenya as his country of choice, among 54 African countries. They posited that the petitioner’s conviction that the Republic of Kenya is his motherland is baseless. Further, it was the contention of the respondents that reliance on the Abuja Proclamation by the petitioner is misplaced; granted that he is an American by birth. They therefore averred that the petitioner cannot claim to have an enforceable right under the Abuja Declaration, passed in 1993.
[11] It was further the contention of the respondents that it was ill-conceived for the petitioner to believe that all people of black race are descendants of emigrants from the African continent. He urged the court to take judicial notice that African people can be found in America and some parts of the Middle East/Asian Continents as rightful citizens.
[12] Regarding citizenship by birth, the respondents relied on Articles 14 and 15 of the Constitution respectively and stated that Article 2(4) cements the supremacy of the Constitution and the law. According to the respondents the laws relied on in the Petition that are inconsistent with the Constitution are null and void. They explained that all applications for citizenship are made online through the Kenya Foreign Nationals Portal (eFNS) wherein an applicant is required to complete and upload statutory forms and supporting documents for consideration.
[13] At paragraph 16 of their Replying Affidavit, the respondents averred that the doctrine of sovereignty of nations connotes that the right to enter and live in Kenya as a citizen is the preserve of Kenya citizens only; and that all foreigners are subject to the national immigration law of Kenya. They were categorical that no procedural application to be registered as a Kenyan citizen has ever been received from the petitioner and therefore his Petition is presumptive and an abuse of the process of the Court.
[14] The parties adduced viva voce evidence herein. The petitioner testified as PW1. He reiterated his averments in the Petition. In addition to adopting his witness statement dated 20 th May 2024 and the Supporting Affidavit sworn by him on 25 th January 2024 and the documents annexed thereto as part of his evidence in chief, the petitioner filed a Further Affidavit sworn on 21 st May 2024. He explained that he came to Kenya for the first time in 2003; and that when he retired from his job in 2008, he moved to Kenya to stay. He has therefore been staying in Kenya since then. He resides in Boa village in Kwale and is running four businesses. He made it plain that he is gainfully employed and does not seek any compensation from the Government of Kenya.
[15] The petitioner reiterated his stance that the Abuja Proclamation gives him the right to return to Africa; and explained that he chose Kenya because it is closer to the holy places like Mecca. He produced his Bundle of Documents as the Petitioner’s Exhibits 1 to 10 and urged that his Petition be allowed and the orders sought granted.
[16] On behalf of the defendants, Mr. Ronnie Akanga (DW1) testified that the petitioner has never filed a formal application to be registered as a Kenyan citizen. He explained that an application for citizenship must be made electronically via the e-Citizen portal. It was further the testimony of DW1 that foreigners are allowed to work in Kenya as long as they meet the required conditions set out in Article 15 of the Constitution and the relevant provisions of the Kenya Citizenship and Immigration Act.
[17] Regarding the petitioner’s residence in Kenya, DW1 testified that, from their records, the petitioner has lived in Kenya intermittently for about four and a half years, yet Section 14(1) of the Kenya Citizenship and Immigration Act talks of lawful continuous residence for seven years. He therefore stated that, as at now, the petitioner is not eligible for registration as a citizen of Kenya.
[18] In his closing submissions dated 18 th September 2024, the petitioner argued that the 2 nd respondent’s online application system is uniquely customized to solely serve applicants who are foreign nationals and to whom the conditions spelt out in Article 15 of the Constitution as well as Section 13 of the Citizenship and Immigration Act apply. In his view, the system has no inherent capabilities to serve other non-Kenyan applicants whose circumstances are different from those articulated under Section 13 of the Act.
[19] In the premises, the petitioner posed the question: where does this leave an applicant like him whose desire to be registered as a citizen is informed by the principles of international law which are not provided for in the current statute; hence not configured in the 2 nd respondent’s online application platform. The petitioner submitted that the system must have capabilities to accommodate all types of applications from non-Kenyans. To that extent, the petitioner submitted that the 2 nd respondent’s online application system is designed to block and deny the petitioner access to information and justice, contrary to Articles 35 and 48 of the Constitution. He further submitted that the system is discriminatory and therefore a violation to the right to equality and freedom from discrimination as guaranteed under Article 27 of the Constitution.
[20] In the light of the foregoing, the petitioner proposed the following issues for determination:
[a] Whether the principles of international law relied upon by the petitioner apply to Kenya;
[b] Whether the petitioner is eligible under international law to claim registration as a citizen of Kenya;
[c] Whether it behooves the 2 nd respondent and the Kenyan Government to create an online portal to cater for applications based on the international laws cited by the petitioner.
[d] Whether the petitioner is entitled to the reliefs sought in his Petition.
[21] On whether the principles of international law relied on by the petitioner apply in Kenya, the petitioner placed reliance on the preamble as well as Articles 2(5) and 2(6) of the Constitution of Kenya and submitted that the Republic of Kenya has adopted a monist practice which recognizes international law as being part of its national law. The petitioner relied on an article by Makumi Mwagiru titled “From Dualism to Monism: The Structure of Revolution in Kenya’s Constitutional Treaty Practice” published in the Journal of Language, Technology & Entrepreneurship in Africa Vol. 3 No. 1, 2011 in which the author stated:
“Once the treaties have become law in this way, the courts will interpret them as is their judicial function. The role of the courts will not just be limited to interpreting the treaties in a national decision making framework. In their role as interpreters of treaties, the courts are set to contribute significantly to the development of international jurisprudence, and especially international human rights law.”
[22] The petitioner also relied on Tinyefuza v Attorney General Constitutional Petition No. 1 of 1996 [1997] UGCC3, Communications Commission of Kenya & others v Royal Media Services [2015] eKLR, The Speaker of the Senate & another v the Attorney General & others [2013] eKLR for the principle that the Constitution must be interpreted in a holistic manner, taking into consideration the historical, economic, social and political backgrounds of each of the Articles contained therein. He therefore submitted that the principles of international law are all applicable as part of the laws of the Republic and therefore, since Kenya is a member of the United Nations and the African Union, it is duty-bound to uphold, respect and defend all the treaties, conventions and proclamations passed by the two bodies.
[23] On whether the petitioner is eligible under international law to claim registration as a citizen of Kenya, his submission was that he had demonstrated his special ties with Africa and presented evidence of the history of slave trade in the world which resulted in his ancestors being forcibly captured and sold to America as slaves. He therefore urged the Court to find and hold that his American nationality was not a matter of choice but of historical accident brought about by circumstances beyond his control. He therefore urged the Court to allow the Petition and to grant all the remedies sought therein.
[24] In their written submissions dated the 30 th October 2024, the 1 st 2 nd and 3 rd respondents reiterated the background facts as set out in their Replying Affidavit. They proposed the following issues for determination:
[a] Whether the principles of international law relied upon by the petitioner apply to Kenya;
[b] Whether the petitioner is eligible under international law to claim registration as a citizen of Kenya;
[c] Whether the Foreign National Service Portal is sufficient to make any application by a foreign national.
[25] The respondents acknowledged the supremacy of the Constitution as spelt out in Article 2(1) thereof. They also relied on Wanjiku & another v Attorney General & another, Muna & another (Interested Parties) (Petition 190 of 2011) [2011] KEHC 5410 (KLR) and Mitu-Bell Welfare Society v Kenya Airports Authority [2018] eKLR to support their submission that the framers of the Constitution did not intend that international conventions and treaties should be superior to local legislation and take precedence over laws enacted by their own representatives under the provisions of Article 94 of the Constitution.
[26] On the basis of the authorities mentioned above, the respondents submitted that the Abuja Proclamation does not constitute a general rule of international law. In their submission, a proclamation is just a public statement and/or announcement issued by a person/authority and therefore does not fit the nature of the legal regimes contemplated under Article 2(5) and (6) of the Constitution.
[27] On whether the petitioner is eligible under international law to claim registration as a citizen of Kenya, it was the respondents’ argument that the only lawful avenue for acquiring Kenyan citizenship by a foreign national such as the petitioner is through registration as contemplated under Sections 13 and 18 of the Kenya Citizenship and Immigration Act as read with Section 9 of the Kenya Citizenship and Immigration Regulations , No. 12 of 2011. They reiterated their posturing that the petitioner is yet to submit a formal application as envisaged by the law and relied on Wanjiku & another v Attorney General & another (supra) to buttress their arguments.
[28] According to the respondents, the Foreign Nationals Service Portal is sufficient to address any application by a foreign national, including applications for registration under Sections 13 and 18 of the Act. They urged the Court to find that the applicant has not demonstrated any justifiable cause for the issuance of the orders sought.
[29] I have given careful consideration to the averments set out by the petitioner in his Petition, the affidavits filed in support as well as his evidence as set out in the written statement dated 20 th May 2024 and the viva voce evidence adduced herein by him. I have likewise considered the responses filed by the respondents, the evidence adduced on their behalf by DW1. I have also given due consideration to the written submissions filed on behalf of the parties by their learned counsel.
[30] The uncontested facts are that the petitioner is a citizen of the United States of America, having been born in the State of Texas on 17 th December 1946. There is equally no dispute that he first came to Kenya in the year 2003. He returned in 2008 and has since engaged in business pursuits from his base in the County of Kwale. He is presently registered as a foreign national under a Certificate of Registration. He described himself as an African-American and held the conviction that his ancestors were forcibly taken away from Africa and sold as slaves to America to offer free labour in plantations.
[31] As has been pointed out hereinabove, the respondents took issue with the petitioner’s approach. In their view, it is misplaced for the petitioner to assume a standard collective approach that presupposes that the ancient-era slave trade that effected Africans to the United States of America had its roots in the modern-day Republic of Kenya. That, however appears to be a misapprehension of the petitioner’s case. The petitioner made it clear that his claim to Kenyan citizenship is premised on the Abuja Proclamation and that the Proclamation is enforceable across the African Continent by African Union state parties, of which Kenya is one.
[32] The fact of slave trade is a matter of historical notoriety of which the Court is entitled to take judicial notice. The petitioner also made it plain why he chose Kenya, namely, the warmth and solace he has experienced since his first visit in 2003 and the fact that it is closer to the holy sites, such as Mecca, for purposes of the practice of his religious faith.
[33] It is also significant that the petitioner was granted registration as a foreign national; and that, as an investor, he has four registered companies to his credit. He is therefore perfectly entitled to seek to be registered as a citizen of Kenya. Indeed, the Abuja Proclamation Abuja Proclamation – a declaration of the Pan-African Conference on Reparations for African Enslavement, Colonization and Neo-Colonization by the African Union formerly known as the Organization of African Unity held on 27 th – 29 th April 1993 in Abuja, Nigeria recognizes that descendants of slaves ought to be allowed to return to Africa and be recognized as citizens. One of the provisions states:
“To grant entrance as of right to all persons of African descent and right to obtain residence in those African states, if there is no disqualifying element on the African claiming the right of return to his ancestral home, Africa.”
[34] The respondents acknowledged that the petitioner has been living in Kenya intermittently, having been granted a class K permit. Accordingly, by dint of the Abuja declaration and given the fact of having lived in Kenya for a period of time, he was and is still at liberty to apply for citizenship by way of registration. Article 15 of the Constitution is explicit:
(1) A person who has been married to a citizen for a period of at least seven years is entitled on application to be registered as a citizen.
(2) A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen.
(3) A child who is not a citizen, but is adopted by a citizen, is entitled on application to be registered as a citizen.
(4) Parliament shall enact legislation establishing conditions on which citizenship may be granted to individuals who are citizens of other countries.
(5) This Article applies to a person as from the effective date, but any requirements that must be satisfied before the person is entitled to be registered as a citizen shall be regarded as having been satisfied irrespective of whether the person satisfied them before or after the effective date, or partially before, and partially after, the effective date.
[35] He stated that pursuant to the said Proclamation he has made several unsuccessful applications for registration as a Kenyan Citizen to the Department of Immigration; the latest being his application dated 29 th September 2023, filed by his Advocate. He pointed out that none of the letters have elicited any response from the 1 st or 2 nd Respondents. The petitioner now contends that such inaction amounts to a denial of his rights under Article 47 (1) & (2) of the Constitution. He also alleged violation of his right to equality and freedom from discrimination under Article 27 as well as his right to dignity under Article 28 of the Constitution.
[36] In the premises, the issues for determination are:
[a] Whether the petitioner has proved the alleged violation of his constitutional rights under Articles 27, 28 and 47 of the Constitution.
[b] Whether the petitioner is entitled to the reliefs sought.
A. On the alleged violation of the petitioner’s constitutional rights:
[37] The fulcrum of the petitioner’s claim is the alleged violation of his right to fair administrative action. The petitioner contended that his right to fair administrative action has been infringed in that the 2 nd respondent did not respond to his two letters where he sought to be a citizen of Kenya.
[38] Article 47 of the Constitution provides:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.
[39] The Constitution applies to all individuals and state organs in the execution of their duties. Article 47 mandates that administrative actions must be conducted in a manner that is prompt, fair, lawful, and reasonable. Furthermore, if such an action negatively impacts a person’s rights or fundamental freedoms, the individual has the right to receive written justification for the decision.
[40] Therefore, in Judicial Service Commission v Mbalu Mutava & another [2014] eKLR the Court of Appeal held that:
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
[41] In this case, the Petitioner has alleged that his right under Article 47 was infringed when the Respondents ignored his applications for citizenship via letters dated the 18 th March 2023 and 29 th September 2023.
To be a citizen of Kenya one has to comply with Chapter Three of the Constitution. Article 13(2) of the Constitution provides that citizenship may be acquired by birth or registration. Under Article 18 of the Constitution, Parliament is mandated to enact a specific legislation for the purposes of:
(a)prescribing procedures by which a person may become a citizen;
(b)governing entry into and residence in Kenya;
(c)providing for the status of permanent residents;
(d)providing for voluntary renunciation of citizenship;
(e)prescribing procedures for revocation of citizenship;
(f)prescribing the duties and rights of citizens; and
(g)generally giving effect to the provisions of this Chapter.
[42] In line with the provisions of Article 18 of the Constitution, Parliament enacted the Kenya Citizenship and Immigration Act whose preamble indicates that it is “ an Act of Parliament to provide for matters relating to citizenship; issuance of travel documents; immigration and for connected purposes”.
[43] In the present case, the petitioner has already shown that he is lawfully in the country and holds a Foreigner Certificate No. 358660. Section 13 provides for lawful residents such as the petitioner. It states:
(1) A person who has attained the age of majority and capacity who has been lawfully resident in Kenya for a continuous period of at least seven years may on application be registered as a citizen if that person—
(a) has been ordinarily resident in Kenya for a period of seven years, immediately preceding the date of application;
(b) has been a resident under the authority of a valid permit or has been exempted by the Cabinet Secretary, in accordance with section 34 (3)(h) and who is not enjoying the privileges and immunities under the Privileges and Immunities Act ( Cap. 179 );
(c) has resided in Kenya throughout the period of twelve months immediately preceding the date of the application;
(d) has an adequate knowledge of Kenya and of the duties and rights of citizens as contained in this Act;
(e) is able to understand and speak Kiswahili or a local dialect;
(f) understands the nature of the application under subsection (1);
(g) has not been convicted of an offence and sentenced to imprisonment for a term of three years or longer;
(h) satisfies the Cabinet Secretary that he or she intends to reside in Kenya after registration;
(i) has been determined, through an objective criteria, and the justification made, in writing, that he or she has made or is capable of making a substantive contribution to the progress or advancement in any area of national development within Kenya; and
(j) is not an adjudged bankrupt.
(2) The Cabinet Secretary shall not register an applicant as a citizen of Kenya under this section if at the date of making the application applicant’s country of citizenship is at war with Kenya.
(3) A child of a citizen by registration who was born before the parent acquired citizenship may on application by the parent or legal guardian be registered as a Kenya citizen upon—
(a) production of documents conferring Kenyan citizenship to any of the parents;
(b) production of the child’s birth certificate; and
(c) proof of lawful residence of the child in Kenya.
(4) A person who is a dependant of any biological parent or who is under the legal guardianship of a person who is a citizen of Kenya by registration shall, upon application made in the prescribed manner, be registered as a citizen upon—
(a) production of documents conferring Kenyan citizenship to any of the parents or the legal guardian;
(b) production of the child’s or the person with disability’s birth certificate; and
(c) proof of lawful residence of the child or person with disability in Kenya.
[44] Further, Regulation 9 of the Kenya Citizenship and Immigration Regulations, 2012 provides for the application for citizenship by registration and it states:
(1) A person who wishes to be registered as a citizen of Kenya under sections 10, 11, 12, 13, 14, 15, 16, 17 or 18 of the Act shall apply to the Cabinet Secretary, in Form 8, 9, 10, 11, 12, 13, 14 or 15 set out in the First Schedule, whichever is applicable to be registered as a citizen of Kenya.
(2) Every application made to the Cabinet Secretary under the sections referred to in paragraph (1) shall be—
(a)accompanied by the prescribed non-refundable application fee, where applicable;
(b)supported by such documentary or other evidence of the facts stated therein, in such other manner as the Cabinet Secretary may require; and
(c)verified by a declaration made before a magistrate, commissioner for oaths or notary public.
(2A) Notwithstanding paragraph (2), the Cabinet Secretary may waive the requirements of paragraphs 2 (a) and (b) for applications made under sections 15, 16 and 17 of the Act.
(3) A person who qualifies for registration as a citizen of Kenya shall take an oath or affirmation of allegiance set out in the Second Schedule before the person is issued with a certificate of registration a
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