11 Summary of judgment On whether a person who had acquired citizenship by birth could lose the citizenship by acquiring the passport of a foreign country under the repealed constitution and under the Constitution of Kenya, 2010; the court held that: • Kenya was moving from colonial governance to independence and was therefore keen to make provision for accommodating interested persons to make a choice of the country they wanted to be loyal to. In that regard, section 97(3)(a) of the repealed Constitution apparently intended to prohibit acquisition of citizenship of another country by a voluntary act. However, the repealed Constitution only prohibited persons of a certain category who were citizens of other countries at the time of independence to choose to be citizens of Kenya. It did not apply to citizens of Kenya by birth. That was because citizenship by birth was a birth right and a natural and non-transferable right. The petitioner would be required to do much more than to merely acquire the passport of another country to lose it. The petitioner’s acquisition of the Canadian passport was not within the confines of section 97(3)(a) of the repealed Constitution. The petitioner did not lose his citizenship upon acquiring the Canadian passport. He remained a Kenyan citizen. • Section 33(1) of the Kenya Citizenship and Immigration Act, 2011 Act (the Act) which the Cabinet Secretary Ministry of Interior and Coordination of National Government and the Director of Immigration had heavily relied on, only provided for the circumstances under which a passport could be suspended. Those circumstances included situations where the holder permitted another person to use his passport or travel documents; the holder had been deported to Kenya at the government’s expense; the holder was a convict for drug trafficking, money laundering, trafficking in persons, smuggling, acts of terrorism, a warrant of arrest had been issued against him and there was need to prevent him from running away or he was involved in passport or document fraud among others. There was no evidence in so far as the petitioner was concerned, that any of those circumstances were applicable to him. On the legality of the decision to deport the applicant and the petitioner’s right to fair administrative action, the court held that: The 1 and 2 respondents could not just decide • Section 43(1) of the Act provided for the removal of to suspend the petitioner’s passport and declare persons who were unlawfully in Kenya. The petitioner, him a prohibited immigrant without subjecting as a citizen, was not unlawfully in Kenya and, therefore, him to any known form of due process. the petitioner was not one of the people who fell under the category of persons who could be removed from the country under section 43(1) of the Act. Even assuming that the petitioner deserved to be removed from Kenya, he had to be subjected to the provisions of the Act and articles 47(1) and 50(1) of the Constitution and given the right to fair administrative action and fair hearing as amplified by section 21 of the Act. Whatever the respondents did had to comply with constitutional standards of procedural fairness and fair hearing. The 1st and 2nd respondents could not just decide to suspend the petitioner’s passport and declare him a forbidden immigrant without subjecting him to any known form of due process. Their actions were not in line with the Constitution and the law. st CITIZENSHIP AND NATIONALITY RIGHTS CASE DIGEST nd