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KENYAN CITIZENSHIP
Kenyan Citizenship
10.5 CATEGORIES OF KENYAN CITIZENSHIP
There are several categories of Kenyan Citizenship. This could be acquired through retention of the Citizenship, regaining or Registration as Kenyan Citizen.
10.5.1 Retention of Kenyan Citizenship
A person who was a Citizen immediately before the effective date (27th August 2010) of the new Kenya Constitution, retained the same citizenship status. Thus anyone who was a Kenyan prior to the new constitution remained a Kenyan Citizen.
A Kenyan Citizen will also not loose Citizenship if married to a non-Kenyan or following the dissolution of marriage.
10.5.2 Acquisition of Citizenship
There are two avenues of acquiring Kenyan Citizenship. The Citizenship may be acquired through birth of a child by a Kenyan parent or registration if a person meets the relevant criteria.
10.5. 2.1 Citizenship by Birth/ Registration
Article 14 of the Constitution provides that a person is a Citizen by birth if on the day of their birth whether born in Kenya or outside, either the mother or father is a Citizen of Kenya.
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This equally applies to persons born before the effective date (27th August 2010), whether or not the person was born in Kenya or not if either parent was a Kenyan Citizen.
This also applies to a child found in Kenya who is or appears to be less than eight (8) years of age and whose nationality and parents are not known.
However section 7 of the 2011 Act provides limitation on the descendants of Kenyan Citizens born outside Kenya, and this will only be effective if the parents of the person born outside Kenya was or is a Citizen by birth.
10.5.3 Dual Citizenship
A Citizen of Kenyan who acquires the Citizenship of another Country shall be entitled to retain the Kenyan Citizenship under Section 8 of the 2011 Act.
Every dual Citizen is required to disclose their other gained Citizenship as prescribed by Law within 3 months of becoming a dual Citizen.
Any person who fails to disclose the dual Citizenship commits an offence and shall be liable on conviction to a ne not exceeding 5 million or imprisonment to a term not exceeding 3 years or both.
10.5.3.1 Disclosure of Dual Citizenship
Regulation 6 of the 2012 act imposes a duty on a person holding dual Citizenship to disclose to the authority’s details of their other Citizenship in the prescribed forms.
The validity of the dual Citizenship shall be until the time the
person remains a Kenyan Citizen. Once the holder ceases to be a Citizen of Kenya, the endorsement of dual Citizenship will be cancelled forthwith.
10.5.3.2 Endorsement of Dual Citizenship
Upon the disclosure of dual Citizenship, the holder may have their Passport upon application endorsed to indicate that the holder is a Citizen of Kenya.
The holder of dual Citizenship whose Passport has been endorsed may use the Passport to enter and exit Kenya without Immigration Control.
10.5.3.3 Limitation of Dual Citizenship
A dual Citizen has the same rights and obligation like any Kenyan National.
However, there are limitation as to the rights of a dual Citizen when it comes to holding a Public Offence.
10.5.4 Regaining Citizenship
The application for regaining of Kenyan Citizenship is governed by Section 10 of the Act.
This applies to persons who were Kenyan Citizens by birth and subsequently ceased to be Citizens of Kenya because of acquiring the Citizenship of another Country.
The applicant must provide proof of previous Kenyan Citizenship and proof of Citizenship of the other Country.
10.5.5 Marriage
If an applicant has been married to a Citizen of Kenya for a period of at least seven years and wish to register as Kenyan Citizens can do so under Section 11 of the Act, if they meet the relevant criteria.
For the application to be successful, the marriage must have been solemnized under a system of law recognized in Kenya, whether solemnized in Kenya or outside Kenya. The applicant must be at a position to provide sufficient evidence to confirm that the marriage was officiated in accordance with the laws of the Country that the same was solemnized.
The applicant must also provide evidence that the marriage is genuine and subsisting at the time of the application. The
marriage must also be genuine and subsisting at the time of the determination of the Application.
In addition, the applicant must not have been declared a Prohibited Immigrant under this Act or any other law and they must not have been convicted of an offence and sentenced to imprisonment for a term of three years or longer.
Further, the application will not be successful if it is believed and/or established that the marriage was entered into for the purpose of acquiring a status or privilege in relation to Immigration or Citizenship.
10.5.6 Widows and Widowers
This category is applicable to a person who has been married to a Citizen who but for the death of the Citizen would have been entitled, after a period of seven years, to be registered as a citizen of Kenya under Section 12 of the 2011 Act.
The applicant is deemed to have been lawfully present in Kenya for the unexpired portion of the Seven years and will be eligible for registration as a Citizen upon expiry of the seven years’ period.
The applicant will however be required to meet the requirements spelt out under Section 11 of the act in line with a marriage application.
However, in circumstances where a widow or widower subsequently marries a non-Citizen before the expiry of the period of seven years they will not be entitled to acquire Citizenship by Registration.
10.5.7 Lawful Resident/Work Permit Holder
Where an applicant has been lawfully resident in Kenya for a continuous period of at least seven years, they qualify under Section 13 of the Act to apply for Kenyan Citizenship.
The applicant must have lived in Kenya for a period of seven years, immediately preceding the date of application and prior to submitting the application must be resident in Kenya throughout the period of twelve months immediately preceding the date of the application.
They must have been resident under the authority of a valid permit or have been exempted by the Cabinet Secretary, in accordance with Section 34(3)(h) and who are not enjoying the Privileges and Immunities under the Privileges and immunities Act (Cap. 179).
In addition, they must have an adequate knowledge of Kenya and of the duties and rights of Citizens as contained and they must be able to understand and speak Kiswahili or a local dialect.
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10.5.8 Adopted Children
A child who is not a Kenyan but is adopted by a Citizen is entitled to be registered as a Kenyan Citizen under Section 14 of the 2011 Act. The adopting parent must provide proof of their Kenyan Citizenship.
The parents are required to produce proof of adoption Certificate issued in a reciprocating State or Jurisdiction whose orders are recognized in Kenya.
In addition, the parents should also provide proof of Lawful Residence of the child in Kenya
10.5.9 Stateless Persons
This category applies to a person who does not have an enforceable claim to the citizenship of any recognized state and has been living in Kenya for a continuous period since 12th December 1963.
In such circumstances, the applicant shall be deemed to have been lawfully residence in Kenya and upon application shall be registered as a citizen of Kenya under section 15 of the Act.
Prior to registration the applicant must have adequate knowledge of Kiswahili or local dialect. They must also be of good conduct having not been convicted of an offence and/ or imprisoned for a term of three years or longer.
The applicant must also show cause that they intend to reside
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in Kenya permanently or maintain close and continuing association with Kenya.
The applications must have been made within a period of seven years from the date of commencement of this Act and may be extended by the Cabinet Secretary for an additional period of seven years.
10.5.10 Migrants
Section 16 of the 2011 Act provides that, any person who voluntarily migrated into Kenya before the 12th December, 1963, and they have been continuously living in Kenya since these dates shall be deemed to have been lawfully resident in Kenya.
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If the applicant submits an application for registration as a Kenya citizenship, upon successful consideration will be eligible to be registered as a citizen of Kenya.
For the application to be successful, the applicant must not hold a passport or an identification document of any other country.
They must also have adequate knowledge of Kiswahili or a local dialect and must not have been convicted of an offence and sentenced to imprisonment for a term of three years or longer.
In addition, the applicant must also intend upon registration as a citizen to continue to permanently reside in Kenya or to maintain a close and continuing association with Kenya and must understand the rights and duties of a citizen.
The applicant must submit their application within a period of seven years from the date of commencement of the 2011 Act and this time limit may be extended by the Cabinet Secretary for an additional period of seven years
10.5.11 Descendants of Stateless Persons and
Migrants
This category relates to persons who have attained the age of eighteen years and whose parents are or in the case of deceased parents were eligible to be Registered as a Citizen under Sections 15 and 16 of the 2011 Act
The applicant who submit their application under this category and are successful may be registered as Citizens of Kenya.
The applicant must however provide sufficient proof that their parents fall within the class of stateless and migrant persons.
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10.6 RENUNCIATION OF KENYAN CITIZENSHIP
10.6.1 Voluntary Renunciation of Kenyan
Citizenship
Subject Section 19 of the 2011 Act, if a Kenyan Citizen by birth or registration voluntarily makes a declaration of Renunciation of Kenyan Citizenship, the Cabinet Secretary shall cause the declaration to be registered.
Once the application of voluntary renunciation is successful, the applicant ceases to be a Kenya Citizen and must surrender all documents identifying them as a Citizen to the relevant Government agency and they shall acknowledge receipt of the documents in writing.
In circumstances where a child was entitled to dual Citizenship prior to new Constitution and upon
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attaining the age of majority took up the Citizenship of
another Country, they are deemed to have lost Kenyan
Citizenship.
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10.6.2 Voluntary Renunciation of Citizenship of
another Country
Where a Foreign national who applies for Registration as a Citizen of Kenya indicate in the application that they intend to renounce the Citizenship of the other Country under Section 20 of the 2011 Act, they must within ninety days after being registered as a Citizen of Kenya, avail to the Cabinet Secretary evidence of renunciation of the Citizenship of the other Country.
If a person fails to avail the evidence of renunciation as required they shall be deemed to be a Dual Citizen.
10.6.3 In-Voluntary Loss of Kenyan Citizenship
This category has recently been developed through case Law by the Court.
It relates to instances where a Kenyan Citizen was forced by circumstances beyond their control e.g Political pressure (and prior to the new Constitution) to acquire Citizenship of another Country, the Courts have held that the in –voluntarily nature upon which the new Citizenship is acquired could not render one to loose Kenyan Citizenship.
10.7 REVOCATION OF CITIZENSHIP
Section 21 of the 2011 Act provides that where a person acquired Kenyan Citizenship by Registration, the Citizenship may be revoked in line with following grounds stipulated in Article 17 of the Constitution.
10.7.1 Fraud, False Misrepresentation or Concealment of Material Fact.
Where an application upon the application of Kenyan Citizenship by Registration fraudulently or false fully misrepresents or conceal material facts with their application, then once the same is established, the Citizenship will be rendered void and subsequently revoked.
10.7.2 Conviction or Imprisonment
Kenyan Citizenship by Registration will also be revoked where a person granted Kenyan Citizenship and within 5 years after Registration is convicted of an offence and is sentenced to imprisonment for a term of three years or longer.
10.7.3 Treason
If a person after registration is convicted of Treason or an offence for which a penalty of at least seven years or more severe penalty is imposed, the Citizenship will be revoked.
10.7.4 Presumption of Citizenship
Where a person was presumed to be a Kenyan citizen
by birth and it is established that the citizenship was