Kenya: Hashmukh Devani v. Cabinet Secretary, Ministry of Interior and others
Published: 29/Feb/2016
Source: Kenya High Court at Nairobi
1. The Petitioner by his Petition dated 23rd September 2015, seeks to be declared that he is a citizen of the Republic of Kenya.
2. The Petitioner further seeks orders directed to the Director of Immigration and Principal Registrar of persons respectively to process and issue the Petitioner with a Kenyan identification card and passport. The Petitioner in support of the Petition swore a 40-paragraphed affidavit on 23rd September 2015.
3. The Petition was opposed. A Replying Affidavit was sworn on 28th October 2015 by Alfred Omangi, a Chief Immigration Officer.
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Conclusion
90. Even though the importance of citizenship as a right is underscored by both International and national laws which reserve certain rights to citizens, in International law, States are in principle allowed to determine own rules on acquisition of citizenship. The Constitution as well as the Kenya Citizenship and Immigration Act (Cap 172) have done just as much. One may acquire citizenship through descent or naturalization subject to certain qualifications. Citizenship by descent or birth will arise by operation of the law or biological factors to which the claimant has no control. It is transmitted down the line. Citizenship by registration is however bequeathed after its registration. It may only be transmitted to children born after it has been acquired.
91. In the instant case the Petitioner has not met the qualifications of citizenship by birth under Article 14 (1) or (2) of the Constitution. Clause (1) does not apply to the petitioner because he was born before the effective date of the Constitution. He also does not qualify under Clause (2). Neither could the Petitioner’s parents also transmit Kenyan citizenship to the Petitioner at the time of the petitioner’s birth. The father was never a citizen of Kenya. The mother on the other hand became a citizen by registration in 1969, long after the Petitioner had been born. Citizenship by registration cannot be transmitted to those who have already been born and certainly Article 14(2) did not intend otherwise.
92. It was also not suggested to the court that the Petitioner is a stateless person. The evidence abounds that the Petitioner has travelled out of the country. The evidence abounds too that work permits as well as residence permits have been given to the Petitioner before. These thrust the fact of a person holding a nationality. This is not a case of the benefit of doubt being extended to a stateless person.
93. My view is that it must be presumed that the Petitioner acquired the citizenship of his parents when he was born. His parents were both Indian nationals with Indian citizenship. At the time the Petitioner was born, India had existed as an independent nation with its own nationals and citizens. It was no longer a British colony when the Petitioner was born in 1949.There must be a presumption that the Petitioner is an Indian citizen unless there is evidence to rebut such a
presumption.
94. Nothing, however, stops Petitioner from applying for citizenship under Article 15 of the Constitution.
95. I am unable consequently on the basis of the evidence available and the clear provisions of the Constitution to direct or order the Respondents to take appropriate measures to recognize the Petitioner Hashmukh Devani as a citizen of Kenya by birth.
Download judgment: Kenya_Divani_Petition_405_of_2015