Kenya: Mahamud Muhumed Sirat v Ali Hassan Abdirahman & 2 others
Source: High Court of Kenya (Nairobi)
Mahamud Muhumed Sirat v Ali Hassan Abdirahman & 2 others  eKLR
Election Petition 15 of 2008
IN THE MATTER OF:
THE NATIONAL ASSEMBLY AND PRESIDENTIAL ELECTIONS ACT, CAP 7 AND REGULATIONS MADE THEREUNDER
IN THE MATTER OF: THE ELECTION PETITION FOR WAJIR SOUTH CONSTITUENCY
IN THE MATTER OF: THE PETITION OF MAHAMUD SIRAT
MAHAMUD MUHUMED SIRAT ………………..………PETITIONER
ALI HASSAN ABDIRAHMAN ……………………..1ST RESPONDENT
IBRAHIM HISH ADAN (RETURNING OFFICER)….2ND RESPONDENT
THE ELECTORAL COMMISSION OF KENYA..3RD RESPONDENT
The 1st respondent, Ali Hassan AbdQirahman moved this court by notice of motion purportedly made under the provisions of Sections 35(1), 43(1), 44(1) of the Constitution of Kenya, Section 4A of the National Assembly and Presidential Elections Act and Section 3A of the Civil Procedure Act seeking to have the election petition herein dismissed with costs essentially on the grounds that the petitioner is not a Kenyan citizen. It is the 1st respondent’s case that the petitioner had voluntarily acquired the citizenship of Australia and therefore owed allegiance to the government of Australia.
My reading of Section 88, 90, 92, 93, 94, 95 and 97 of the Constitution leads me to the conclusion that the said Sections of the Law prohibited persons of a particular category who are citizens of other countries at the time Kenya attained independence. It does not apply to citizen of Kenya who acquired citizenship by virtue of their birth from acquiring citizenship of another country after attaining twenty-one years of age. The said Sections of the Constitution must be read in the context by which they were enacted. At the time Kenya attained independence, certain category of persons who qualified to acquire Kenyan citizenship, and having the option of retaining British citizenship, were being subtly encouraged to decide whether they desired to be citizens of the newly independent Kenya or be subject of the United Kingdom and colonies.
Even assuming that the petitioner had indeed acquired Australian citizenship, there is nothing in the constitution that specifically prohibits the petitioner from acquiring such citizenship while at the same time retaining his Kenyan citizenship provided that Australian law allows for its citizens to acquire and have dual nationality. There is only one exception; this is where the petitioner specifically renounces his citizenship of Kenya and acquires citizenship of another country that does not allow dual citizenship. The 1st respondent placed no evidence before this court that establishes that the petitioner has indeed renounced his citizenship of Kenya as contemplated by Section 97(7) of the Constitution.
My evaluation of the evidence availed to the court by the 1st respondent in support of his assertion that the petitioner is an Australian citizen and the response thereto by the petitioner reiterating that he is a Kenyan citizen leads me to the conclusion that the petitioner has indeed established that he is a Kenyan citizen.
Read full judgment: http://kenyalaw.org/caselaw/cases/view/64237/