Okoiti v Attorney General & another; Matindi (Interested Party) (Petition E004 of 2022) [2025] KEHC 6897 (KLR) (Constitutional and Human Rights) (22 May 2025) (Judgment)
Neutral citation:
[2025] KEHC 6897 (KLR)
Republic of Kenya
Petition E004 of 2022
LN Mugambi, J
May 22, 2025
Between
Okiya Omtatah Okoiti
Petitioner
and
Attorney General
1st Respondent
Independent Electoral and Boundaries Commission
2nd Respondent
and
Eliud Matindi
Interested Party
Constitutionality of regulation 37 of the Elections (Registration of Voters) Regulations, 2012 which requires Kenyans in diaspora to be holders of valid passports to be registered as voters
The petition challenged the constitutionality of regulation 37 of the Elections (Registration of Voters) Regulations, 2012 to the extent that it required Kenyans living abroad to be holders of valid passports to be registered as voters yet Kenyans living in the East African Community were required to have a national identity card to be registered as a voter. The court highlighted the nature of issue-based estoppel. The court held that regulation 37 was not an unreasonable limitation article 38(3) or 83 (3) of the Constitution and that it was not discriminating Kenyans living at home and those in diaspora.
Constitutional Law – fundamental rights and freedoms – limitation of fundamental rights and freedoms - right to be registered as a voter – where regulation 37 of the Elections (Registration of Voters) Regulations, 2012 required Kenyans living abroad to be holders of valid passports to be registered while Kenyans living in the East African Community were required to have a national identity card - whether regulation 37 was unconstitutional for unreasonably limiting the right to register as a voter and for being discriminatory - Constitution of Kenya, articles 10, 24, 38(3) and 83(3); Elections (Registration of Voters) Regulations, 2012, regulation 37.Civil Practice and Procedure – estoppel – issue-based estoppel – what was the nature of issue-based estoppel - Civil Procedure Act (cap 21), section 7.
Brief facts
The petition assailed the constitutionality of regulation 37 of the Elections (Registration of Voters) Regulations, 2012 to the extent that it required Kenyans living abroad to be holders of valid passports to be registered as voters yet Kenyans living in Kenya and the East African Community were required to have a national identity card to be registered as a voter. According to the petitioner that requirement did not meet the threshold set out in article 24 of the Constitution and limited those Kenyans' rights under article 38(3)(a) of the Constitution. Consequently, the petitioner sought for among other orders; a declaration that regulation 37 was unconstitutional.
Issues
- Whether regulation 37 of the Elections (Registration of Voters) Regulations, 2012 which required Kenyans living abroad to be holders of valid passports to be registered while Kenyans living in the East African Community were required to have a national identity card was unconstitutional for;
- unreasonably limiting the right to register as a voter; and
- for being discriminatory.
- What was the nature of issue-based estoppel?
Relevant provisions of the Law
Elections (Registration of Voters) Regulations Regulation 37 - Eligibility to Vote.A Kenya citizen residing outside Kenya shall app registration as a voter upon production of a valid Kenyan Passport.Provided that citizens residing in countries within the East African Community may present an Identity Card.
Held
- In interpreting the Constitution, the court was guided by the Constitution itself. In particular article 259(1) where the Constitution declared how it should be interpreted and also principles established through judicial precedent. Issue-based estoppel was rooted in the principle of res-judicata which was provided for in section 7 of the Civil Procedure Act. Issue-based estoppel prevented issues that had been litigated from being re-introduced in subsequent proceedings.
- The petition had been instituted in public interest. The finding on any issue was a decision in rem which meant such an issue could not be the subject of another subsequent suit as it would offend the principle of res-judicata. Therefore, the finding of the court in Kenya Diaspora Alliance & 2 others v IEBC & another (Petition No.71 of 2017) on the constitutionality of regulation 37 of the Elections (Registration of Voters) Regulations, 2012 could not be impeached via the instant petition considering that the instant court was a court of co-ordinate jurisdiction.
- Article 24 of the Constitution allowed a right or fundamental freedom in the Bill of Rights to be limited as long as there were reasonable and justifiable grounds taking into account the nature of the right and fundamental freedom, the importance of the purpose of limitation, the nature and extent of limitation among others. Given that it was not conceivable to reasonably expect a Kenyan lawfully residing in diaspora to do so without a valid passport, such a limitation was based on reasonable grounds and also obviated the possibility of having persons who might have clandestinely renounced their citizenship from participating in voting or vying for public positions in Kenya.
- Regulation 37 of the Elections (Registration of Voters) Regulations, 2012 was not an unreasonable limitation of article 38(3) or 83 (3) of the Constitution. It was not discriminating Kenyans living at home and those in diaspora. That differentiation was based on reasonable grounds considering that Kenyans living lawfully in diaspora must have, as condition precedent, a passport and not an identity card as was the case with Kenyans residing at home. Requiring them to provide a passport was thus not discriminative as that was a legal document that they would naturally and legally be expected to have as a condition of lawfully residing outside Kenya.
- Article 10 of the Constitution on the national values and principles of governance bound all persons in enacting, applying or interpreting any law. Integrity and transparency were embraced in article 10(2)(c) of the Constitution. Regulation 37 of the Elections (Registration of Voters) Regulations, 2012 ensured that only Kenyans genuinely living in diaspora were registered as voters in line with the principles of transparency and integrity championed by the Constitution.
Petition dismissed with no orders as to costs.
Citations
CasesKenya1. Gichuru v Package Insurance Brokers Ltd Petition 36 of 2019; [2021] KESC 12 (KLR) - (Explained)2. Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others Petition 25 of 2014; [2015] KESC 21 (KLR) - (Followed)3. Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika (Interested Party) Petition E016 of 2023; [2024] KEHC 2890 (KLR) - (Explained)4. Kenya Commercial Bank Limited & another v Muiri Cofee Estate Limited & 3 others Motion 42 & 43 of 2014 (Consolidated); [2016] KESC 6 (KLR) - (Explained)5. Kenya Diaspora Alliance & 2 others v Independent Electoral and Boundaries Commission & another Petition No 71 of 2017 - (Followed)6. Mumira v Attorney General Constitutional Petition E007 of 2020; [2022] KEHC 271 (KLR)7. New Vision Kenya (NVK Mageuzi) & 3 others v Independent Electoral and Boundaries Commission & 8 others [2016] eKLR - (Followed)8. Nyarangi, James Nyasora & 3 others v Attorney General Anti-Corruption and Economic Crime Petition 298 of 2008; [2008] KEHC 3906 (KLR) - (Explained)StatutesKenya1. Civil Procedure Act (cap 21) section 7 - (Interpreted)2. Constitution of Kenya articles 24, 38(3)(a); 83(3); 88(5) - (Interpreted)3. Elections (Registration of Voters) Regulations, 2012 (cap 7 Sub Leg) regulations 2, 8, 13A(2); 37 - (Interpreted)4. Elections Act (cap 7) sections 2 ,3, 5(3) - (Interpreted)5. Interpretation And General Provisions Act (cap 2) section 31(b) - (Interpreted)6. Registration of Persons Act (cap 107) sections 2, 6, 9 - (Interpreted)7. Statutory Instruments Act (cap 2A) section 24(2) - (Interpreted)AdvocatesNone mentioned
Judgment
Introduction
1.The petition dated 5 January 2022 is supported by the petitioner’s affidavit in support of similar date and further supplementary affidavits dated 12, 16 and 22 January 2022.
2.The petition assails the constitutionality of regulation 37 of the Elections (Registration of Voters) Regulations, 2012 to the extent that it requires Kenyans living abroad to be holders of valid passports to be registered as voters yet Kenyans living in the Country and the East African Community are requiredto have a National Identity card to be registered as a voter.
3.According to the petitioner this requirement does not meet the threshold set out in article 24 of the Constitution and limits these Kenyans right under article 38(3)(a) of the Constitution.
4.Consequently, the petitioner seeks the following reliefs against the respondents:i.A declaration be issued that regulation 37 of the Elections (Registration of Voters) Regulations, 2012 is unlawful and unconstitutional and, therefore, invalid, null and void.ii.A declaration be issued that by enacting regulation 37 of the Elections (Registration of Voters) Regulations, 2012 the Commission failed to exercise its powers and perform its functions in accordance with this Constitution and national legislation as provided for under article 88(5) of the Constitution.iii.A declaration be issued that the respondents should be condemned to pay the costs of this motion.iv.An order be issued quashing regulation 37 of the Elections (Registration of Voters) Regulations, 2012.v.An order be issued compelling the respondents to bear the costs of this petition.vi.Consequent to the grant of the prayers above the court be pleased to issue any other or further remedy (directions and orders) that shall deem necessary to give effect to the foregoing orders, and/or favour the cause of justice.
Petitioners’ Case
5.The petitioner posits that the impugned regulation, prohibits the use of national identification cards for diaspora voter registration. He asserts that this is in contravention of article 24 of the Constitution which expressly provides that a right, in this case article 38(3) shall not be limited without any justification.
6.He as well takes issue with the impugned regulation since the limitation is provided for in a subsidiary legislation and not in the substantive law, the Elections Act as required under article 12(2) of the Constitution.
7.It is also contended that the subsidiary law does not have capacity to prohibit use of national identification for diaspora voter listing because the Elections Act under sections 2, 3 and 5(3) of the Election Act, No. 2 of 2011 permits it. That this goes against the principle incorporated in section 31(b) of the Interpretation and General Provisions Act and section 24(2) of the Statutory Instruments Act that subsidiary legislation shall not be inconsistent with any Act of Parliament.
8.The impugned regulation creates confusion in that it contradicts regulations 2, 8, 13A(2) and (3) and Form A of the Elections (Registration of Voters) Regulations, 2012, which allow the use of national IDS for voter registration without any restriction.
9.The petitioner further argues that the impugned regulation violates article 83(3) of the Constitution as denies eligible Kenyan citizens in the diaspora the right to vote in an election.
10.Taking these factors into account, the petitioner contends that the requirement that Kenyans in the diaspora can only register as voters using their valid passports and not national identity cards is both unlawful and unconstitutional.
11.In view of the now completed general election in 2022, the petitioner stresses that the requirement was unreasonable as by then, the Government had already declared non-biometric passports invalid as from 31 December 2021. In that instance, the petitioner argued (although now overtaken by events) that it was imperative that the Kenyans in diaspora be allowed to register using their national identity cards.
12.In closing, the petitioner argues that the impugned regulation not only violates the Constitution but also as stated herein, ections 2, 6 and 9 of the Registration of Persons Act, section 31(b) of Interpretation and General Provisions Act; section 24(2) of the Statutory Instruments Act, 2013, sections 2, 3, 4, and 5(3) of the Elections Act and regulations 8, 13A(2) & (3), and Form A of the Regulations.
1st Respondent’s Case
13.In response thereto, the 1st respondent filed grounds of opposition dated 10 February 2022 and a replying affidavit by the Principal Immigration Officer, Jimmy Nyikuli sworn on 17 March 2022.
14.The grounds of opposition are on the basis that:i.The right to vote is not absolute and the same may be subjected to limitations as may be provided for in law.ii.The regulation being challenged, enjoys presumption of constitutionality.iii.The petitioner herein has not demonstrated before the court how the 1st respondent has violated their constitutional rights.iv.There is no justification in the petition, indicating how one could be living in the diaspora without a valid Kenyan passport, as that would be an illegality.v.The petition is based on an apprehension rather than a fact. The deadline for the requirement to change passports to the new generation passports, has been moved from December, 2021 to afterwards in 2022.vi.Both the petition and application are defective both in form and in substance and are therefore unmerited and brought in bad faith.vii.It is in the public interest and in the interest of justice that the current application and petition be dismissed with costs as the same is an abuse of court process.
15.In the reply, Jimmy Nyikuli notified that the Directorate of Immigration had on 21 January 2022, resolved to extend the deadline for acquisition of the digital passports from 31 December 2021 to November 2022. On that basis, all Kenyans with valid passports were eligible to access government services.
2nd Respondent’s Case
16.In response to the petition, the 2nd respondent filed a replying affidavit through Chrispine Owiye, sworn on 2 March 2022.
17.He avers that contrary to the petitioner’s allegation, the impugned regulation is not in conflict with section 5(3) of the Elections Act, the Elections (Registration of Voters) Regulations, 2012 or any other law. He avers that article 88(4)(a) of the Constitution as read with section 5(3) of the Elections Act demonstrates that the 2nd respondent is granted the power to prescribe the manner of registration of voters, whether residing in or outside the country.
18.He avers that the impugned regulation prescribes the procedure and manner of registration of voters. With reference to voters residing outside the country and the East African Community, registration is restricted to persons with valid passports.
19.In like manner, it is averred that contrary to the petitioner’s allegation, regulation 8, 13, 13A (2) and (3) and Form A and J of the Elections (Registration of Voters) Regulations,2012, do not stipulate either the choice of a national identity card or valid passport for persons residing outside Kenya in terms of registration. Thus, in absence of such prescription therein, these provisions ought to be read together with the impugned regulation.
20.He posits thus that the impugned regulation does not violate the Constitution neither present an unreasonable limitation under article 38(3) and 24(2) of the Constitution. It is noted that the court discussing the issue in Petition No 71 of 2017: Kenya Diaspora Alliance & 2 others v IEBC & another found as much, since held that provisions of section 37 of the Regulations (Elections (Registration of Voters) Regulations, 2012 provide a reasonable limitation to the right to vote.
21.He stresses that a valid Kenyan passport which contains an expiry date is the only way they can ascertain a person’s citizenship while residing outside the country so as to safeguard the credibility of the voter registration process. Considering this, he states that the petitioner has failed to demonstrate how the 2nd respondent exercised its powers contrary to the Constitution or the legislation. On this premise, he argues that the petition lacks merit.
Interested Party’ Case
22.The interested party’s response to the petition is not in the court file or Court Online Platform (CTS).
23.It is worthy to note that there was an intended party known as the Kenya Diaspora Alliance (KDA) Trust which vide their notice of motion Application dated 15 February 2022 had sought to be enjoined in this suit. The initially dismissed application was reinstated however the record does not reflect whether this party was ever granted leave to join this suit.
Petitioner’s Submissions
24.The petitioner’s submissions are not in the court file or Court Online Platform (CTS).
1st Respondent’s Submissions
25.Jackline Kiramana for the 1st respondent filed submissions dated 10 March 2023 and highlighted the issues for determination as: whether the impugned regulation is unconstitutional and whether there has been a violation of rights.
26.To commence with, counsel noted that the challenge to the use of passports instead of national identity cards with regard to the impugned regulation is not novel. Counsel submitted that the court in the matter of Kenya Diaspora Alliance & 2 others (supra) declined a similar relief and noted as follows:
27.Counsel submitted that the court in that case upheld the impugned regulations constitutionality. It is noted that this decision was not appealed. Accordingly, counsel submitted that the matter herein has already been determined as the key contention in this suit is identical to the cited case.
28.On the second issue, counsel submitted that the petitioner posits that the rights of Kenyans living in the diaspora has been violated by the said limitation. Counsel emphasized that the impugned right is one that is set to be realized progressively as held in New Vision Kenya (NVK Mageuzi) & 3 others v Independent Electoral and Boundaries Commission & 8 others [2016] eKLR. This decision was upheld in both the Court of Appeal and the Supreme Court.
29.Moreover, counsel submitted that the court in Kenya Diaspora Alliance & 2 others (supra) rationalized that every Kenyan citizen living in the diaspora is reasonably required to have a valid Kenyan passport as it is the internationally recognized travel document. Counsel contended that allowing Kenyans residing abroad without valid passports to register as voters using the national identity card, would pose a risk, as people who may have denounced their citizenship, can register as voters, thereby compromising the integrity of the voters register and by extension, the verifiability of the election.
30.Furthermore, counsel highlighted that where one would be living without a valid passport abroad would be mean that any orders issued by the court would aid sanitization of an illegality.
31.Counsel also reminded that the right to vote equally is not an absolute. On this premise, counsel submitted that none of the alleged rights had been violated as the respondents acted in accordance with the law.
2nd Respondent’s Submissions
32.On 9 March 2023, counsel for the 2nd respondent filed submissions in opposition to the petition and outlined the issues for discussion as: Whether regulation 37 is unlawful and/or unconstitutional and whether the 2nd respondent breached article 88(5) of the Constitution in enacting this regulation.
33.Counsel submitted that the impugned regulation is not in conflict with section 5(3) of the Elections Act. This is because this section only provides for proof of attainment of 18 years either through a national identity card or a Kenyan passport. This section then proceeds to provide that registration as a voter will be conducted through an application in the prescribed manner.
34.Counsel stated that the 2nd respondent is empowered to prescribe the manner in which such a registration will be conducted under article 88(4)(a) of the Constitution. Consequently, counsel submitted that the impugned regulated primarily prescribes the manner in which Kenyans residing abroad can be registered as voters.
35.Equally, counsel submitted that regulations 8,13, 13A (2) & (3) and Form A and J of the Elections (Registration of Voters) Regulations, 2012 do not prescribe the choice of either a national identity card or valid passport for registration of Kenyan citizens residing abroad. Therefore, in the absence of such a prescription, counsel submitted that regulations 2, 8, 13(1), 13A (2) & (3), 35, 36 of the Elections (Registration of Voters) Regulations, 2012 should therefore be read together with the impugned regulation.
36.Likewise, counsel submitted that the impugned regulation is not discriminatory as not all distinctions resulting in differential treatment can be said to violate equality rights as envisaged under the Constitution. It was stressed that a law or regulation will not be deemed discriminatory if there is a reasonable distinction between those favored and those not favored by the law. Reliance was placed in James Nyasora Nyarangi & 3 others v Attorney General [2008] eKLR where it was held that:
37.In this case, counsel submitted that a valid Kenyan passport is the only certain way of certifying citizenship for Kenyan citizens residing outside the country. Reliance was placed in Kenya Diaspora Alliance & 2 others (supra) which found in favour of the impugned regulation. In this context, the imposed limitation was argued to be reasonable and justifiable. Considering this, counsel submitted that the impugned Regulation does not offend article 83(3) of the Constitution as seeks to protect eligible citizens from being denied their right to vote.
38.In the second issue, counsel submitted that the petitioner had not demonstrated how the 2nd respondent had exercised its powers contrary to the Constitution or legislation. Counsel echoed that the requirement to use a valid Kenyan passport is pursuant to the statutory requirement under section 5(3) of the Elections Act and the impugned regulation, both of which were enacted by Parliament.
Interested Party’s Submissions
39.The interested party in support of the petition filed submissions dated 28th July 2022. He stated the issues for discussion as: whether regulation 37 of the Elections (Registration of Voters) Regulations, 2012, is unlawful and unconstitutional and, therefore, invalid, null and void and whether, by enacting regulation 37 of the Elections (Registration of Voters) Regulations, 2012, the Commission failed to exercise its powers and perform its functions in accordance with this Constitution and national legislation as provided for under article 88(5) of the Constitution.
40.Answering in the affirmative, the interested party submitted that the impugned regulation is unlawful and in breach of articles 10(2), 24 and article 27 of the Constitution. He contended that the impugned regulation unconstitutionally entrenches and compounds unlawful direct discrimination against Kenyan citizens residing outside Kenya, other than in countries within the East African Community, in their ability to register as voters and, to exercise their rights under article 38 of the Constitution
41.He noted that whereas Kenyan citizens residing in Kenya or in countries in the East African Community, can apply for registration as voters upon presentation of their identification document, Kenyan citizens residing outside Kenya can only apply for registration as voters upon production of a valid Kenyan passport. Considering this, the interested party submitted that the impugned Regulation and the resultant restrictions amounts to unlawful discrimination, in violation of article 27(1), (2) and (4) of the Constitution.
42.Reliance was placed in Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) where it was held that:
43.In addition, he submitted that the impugned regulation further violates article 27(6) of the Constitution which requires the State to take legislative and other measures designed to redress any disadvantage suffered by individuals or groups because of past discrimination. It was stated that this aspect was captured by the Supreme Court in Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others [2015] eKLR wherein the superior court observed that prior to the promulgation of the Constitution, Kenyans in the diaspora could not actualize their right to vote.
44.The interested party additionally submitted that while the right under article 38 of the Constitution can be limited, the impugned regulation amended vide Legal Notice No 73 of 2017 dated 2nd May 2017, fails to meet the requirements of article 24 of the Constitution.
45.He asserted that the fact that the respondents following issuance of conservatory orders in this matter, were able to register him as a voter with his Kenyan national identification card despite him not being in Kenya, confirms that the limitation imposed by regulation 37 is not reasonable and justifiable in an open and democratic society.
46.He added that this is especially in the context of the duty imposed by article 83(3) of the Constitution which requires that administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.
47.On the second issue, the interested party submitted that by enacting the impugned regulation, the 2nd interested party failed to exercise its powers and perform its functions in accordance with the Constitution and legislation as provided for under article 88(5) of the Constitution. He argued that the impugned regulation imposes an additional requirement that a citizen residing outside the East African Community can only register as a voter upon production of a valid Kenyan passport.
48.He equally stressed that the definition of a valid Kenyan passport was not defined in the impugned regulation. He submitted that owing to the 1st respondent’s replying affidavit, it was evident that the validity of a Kenyan passport can be varied by an administrative act. In his view, the changing of date of validity of Kenyan passports, including for the purpose of being able to register as a voter under article 38(3)(a) of the Constitution through administrative pronouncements which have no anchorage in the Constitution or statutes, offends article 24 of the Constitution and the law. Accordingly, he contended that the requirement for a ‘valid’ Kenyan passport under in the impugned Regulation lacks any legal foundation.
Analysis and Determination
49.The issues for determination in this petition may in my humble view be summarized as follows:1.Whether regulation 37 of the Elections (Registration of Voters) Regulations, 2012 is unconstitutional.2)Whether in enacting regulation 37 of the Elections (Registration of Voters) Regulations, 2012; the 2nd respondent violated article 88(5) of the Constitution and the relevant national legislation relating to the subject matter.3)Whether the petitioner is entitled to the reliefs sought
Whether regulation 37 of the Elections (Registration of Voters) Regulations, 2012 is unconstitutional
50.In interpreting the Constitution, the court is guided by the Constitution itself; in particular article 259 (1) where the Constitution declares how it should be interpreted and also principles established through judicial precedent. The applicable principles were concisely articulated by the court in the case of Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika [2024] KEHC 2890 (KLR) as follows:
51.In embarking on the task ahead, I begin by setting out regulation 37 of the Elections (Registration of Voters) Regulations which gave rise to the institution of this Petition. It provides:Eligibility to Vote.A Kenya citizen residing outside Kenya shall apply for registration as a voter upon production of a valid Kenyan Passport.Provided that citizens residing in countries within the East African Community may present an Identity Card.
52.The petitioners contended that this regulation violates article 38(3) of the Constitution which gives every adult citizen the right to be registered as voter, to vote in any election and to be a candidate for public office as it unreasonably forbids the use of identity card for purposes registering diaspora voters. Further, that it violates article 83(3) of the Constitution which provides that administrative arrangements for regulation of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or vie in an election. In addition, the Petitioner contended that regulation 37 violates article 27(1) & (2) for discriminating against Kenyan Citizens in diaspora by not allowing them to use the national identity cards to register as voters while allowing Kenyans at home to do so.
53.The respondents countered the petitioner’s position by pointing out that the constitutionality of Regulation 37 Elections (Registration of Voters) Regulation, 2012 was settled by the Court in the case of Kenya Diaspora Alliance & 2 others v IEBC & another (Petition No 71 of 2017).
54.I read carefully the Judgment of Okwany J in the above cited case by the respondents and this is what the Judge had to say when confronted with the issues presented in that petition:
55.In my view, the above finding presents what is referred to as issue-based estoppel. It is rooted in the principle of res-judicata which is provided for in section 7 of the Civil Procedure Act which states as follows:
56.The Supreme Court affirmed the relevance of this principle in constitutional litigation in the case Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR where it held thus:
57.Issue based estoppel prevents issues that have been litigated from being re-introduced in subsequent proceedings. In Mumira v Attorney General [2022] KEHC 271 (KLR) the court explained the principle as follows:
58.In previous case, the petition, just like the present case had been instituted in public interest as evidenced by the following remarks by the judge:
59.Clearly therefore, the finding on any issue therein was a decision in rem which means such an issue cannot be the subject of another subsequent suit as it would offend the principle of res-judicata.
60.It means therefore the finding of the Judge on the constitutionality of regulation 37 of the Elections (Registration of Voters) Regulations, 2012 cannot be impeached via this petition considering that this is a court of coordinate jurisdiction.
61.I would add that article 24 of the Constitution allows a right or fundamental freedom in the Bill of rights to be limited as long as there are reasonable and justifiable grounds taking into account the nature of the right and fundamental freedom, the importance of the purpose of limitation, the nature and extent of limitation among others. Given that it is not conceivable to reasonably expect a Kenyan lawfully residing in diaspora to do so without a valid passport, such a limitation is based on reasonable grounds and also obviates the possibility of having persons who might have clandestinely renounced their citizenship from participating in voting or vying for public positions in Kenya. I thus disagree with the petitioner’s contention that this regulation is an unreasonable limitation article 38(3) or 83(3) of the Constitution.
62.Moreover, it is not also correct in my view to argue that it is discriminating Kenyans living at home and those in diaspora. In my view, that differentiation is based on reasonable grounds considering that Kenyans living lawfully in diaspora must have, as condition precedent, a passport and not an identity card as with Kenyans residing at home. Requiring them to provide a passport is thus not discriminative as that is a legal document that they would naturally and legally be expected to have as a condition of lawfully residing outside Kenya.
63.Article 10 of the Constitution on the national values and principles of governance binds all persons in enacting, applying or interpreting any law. Integrity and transparency are embraced in article 10(2)(c) of the Constitution. This Regulation ensures that only Kenyans genuinely living in diaspora are registered as voters in line with the principles of transparency and integrity championed by the Constitution.
64.The above findings obviate the need of considering any other issue in this petition.
65.The upshot therefore is that the petition is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF MAY, 2025.……………………………………..L N MUGAMBIJUDGE