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Kenya Citizenship And Immigration Act

The Kenya Citizenship and Immigration Act (KCI Act)  No 12 of 2011 came into force to regulate  matters relating to citizenship and the issuance of travel and immigration documents.

This act thus amended the previous regulation being the Kenya Citizenship Act, the Immigration Act and the Aliens Restriction Act.

The Act in section 4 provides for a director who is in charge of matters relating to citizenship and immigration and whose functions are not only advising the Cabinet secretary on matter relating to issuing, granting and revoking citizenship but is also in charge of the issue of passport, travel documents, is in charge of border control and management, regulates and controls issues on residency and provides services related to travel into Kenya in mission offices based in other countries.

The main issues addressed by this act relate to obtaining Kenyan citizenship, travels document, matters concerning entry and exit into and from Kenya as well as the procedures followed and the crimes that one may be convicted of if found guilty of non-compliance.

The Kenyan Citizenship and Immigration Act regulations 2012 lay out and details the procedure to be followed including but not limited to the forms  to be filled for each application and  the fees to  paid in each case.

The benefits enjoyed by a Kenyan Citizen under section 22 are:

  • the right to enter and exit Kenya,
  • right to register as a voter and  participate in elections,
  • right to own land and any other  property in Kenya, 
  • right to be appointed to a public office,
  • right where a citizen by birth to vie for the post of president or vice president,
  • right to receive on application any document related to registration such as registration certificate, birth certificate, national identity card, passport and voter’s card

On the other hand, rights come with duties which are laid out under section 23 to include:

  • owing allegiance to the state,
  • obeying the laws, respecting and promoting dignity,
  • upholding the principles of the constitution of Kenya,
  • paying taxes,
  • cooperating with state organs
  • protecting and conserving the environment.

Citizen by birth

Section 6 of the Act makes reference to Article14 read together with clause 30 of the sixth schedule to the constitution of Kenya 2010 which states that one becomes a citizen of Kenya by birth if born  of a Kenyan parent whether  in Kenya or not . this also applies to a child found in Kenya whose nationality is unknown and the child appears to be aged below 8 years. 

Citizenship by registration

One becomes a citizen of Kenya by registration by making an application to be registered as a Kenyan citizen under any of the following categories:

  1. Dual citizenship
    • as provided for under section 8 & regulation 6 of the KCI Act regulations 2012, this type of citizenship applies to Citizen of Kenya by birth who wishes to be a citizen of both Kenya and  another country.
    • It also applies to a person who being a citizen of another country applies to be registered as a Kenyan citizen and wishes to retain both the citizenship of the other country and Kenya.
    • Where one is registered as a Kenyan Citizen and wishes to maintain a dual citizenship status, they are required to disclose the duo citizenship within three (3) months of registration as a Kenyan Citizen failure to which they commit an offence which if found guilty are liable to a fine of not more than Ksh 5 million or an imprisonment term of 3 years or both the fine and imprisonment.
    • A dual citizen can use documents of either of the countries they are registered in as per  regulation 7 and may also apply for endorsement of the documents of the country for use in Kenya by use of forms 5 and 6 in the schedule to the regulations and in accordance with regulation 7.
    • However, where one uses dual citizenship to gain unfair advantage or commit a crime, they are if found guilty liable for a fine of not more than 5 million or imprisonment for 3 years or both the fine and imprisonment.
  2. Presumption of citizenship in case of a foundling
    • Under section 9, where a child presumed to be of less than 8 years of age is found abandoned in Kenya with no known parents or citizenship, the finder is required to report this to children services who then institute court proceedings geared towards determining the age and citizenship of the child and where this is not determined, the court the orders that the child be registered as a citizen by birth.
    • Where one is found  guilty of bringing into Kenya or conspiring, facilitating or assisting  the abandoning of children with the purpose of having them declared as Kenyan Citizens, they are liable to a fine of not more than 10 Million or to imprisonment for a term of 10 years or to both fine and imprisonment
  3. Regaining of citizenship previously renounced
    • Section 10 provides that where on had previously denounced Kenyan citizenship in order to gain citizenship of another state, they can by application through form 1 in the first schedule to the regulation and in accordance to regulation 48 on the details to be availed in the application apply for registration as a Kenyan Citizen. These citizens on obtaining the registration certificates become dual citizens.
  4. Citizenship by marriage to a Kenyan citizen
    • Section 11 provides that one can be registered as a Kenyan Citizen after being married to a Kenyan via a marriage solemnized under laws recognized in Kenya for a period of 7 years. The marriage must still be valid at the date of the application for registration.
    • Further, the applicant must not have committed a crime which if found guilty is liable for imprisonment for a term of 3years or more and should not be a prohibited immigrant.
    • A widow or widower who would have qualified for registration under marriage save for the demise of their spouse and who has not remarried to a non-Kenyan citizen before the lapse of 7 years from the date of solemnization of the between themselves and the late spouse can also apply for registration as a Kenyan citizen by marriage.
  5. Citizenship as a result of lawful residence in Kenya
    • As per section 10,  one can be registered as a Kenyan Citizen where a person who has attained 18 years of age is lawfully residing in Kenya for a continuous period of 7 years immediately prior  to their application and where such a person has not been enjoying privileges under the privileges & immunities Act .
    • The applicant is required to show proof that they know the duties and rights of Kenyan Citizens, have not been convicted for an offence whose imprisonment term is more than3 years, they intend to live in Kenya after the Registration and has contributed to the national development of Kenya.
    • The applicant must not have been declared bankrupt and should not be a citizen of a country in war with Kenya.
  6. Citizenship by adoption by a Kenyan Citizen
    1. A child who is not a citizen of Kenya but is adopted by a Kenyan Parent can on application of the parent be registered as a Kenyan Citizen upon proof of their Kenyan Citizenship and that the child has been legally adopted.
  7. Citizenship accorded to stateless persons
    • This applies to a person who is not a citizen of any state but has been residing in Kenya since  for a continuous period since independence day.
    • The person shall be in accordance to Section 15 be deemed to have been legally in Kenya and upon proof of knowledge of Kiswahili language or of a native language used in Kenya, that they intend to continue residing in Kenya after registration and that they have not been convicted for  crime whose imprisonment is more than 3 years prior to the application be registered as a Kenyan Citizen if they make their application before the 1st day of September 2016, being 5 years from the date of commencement of the Act.
  8. Citizenship given to migrants
    • As per section 16, where a person voluntarily migrated into Kenya before independence day , does not hold a passport from any countryand has not been convicted for a crime liable to 3 years imprisonment shall on application be registered as a Kenyan Citizen if they make their application before the 1st day of September 2016, being 5 years from the date of commencement of the Act.
  9. Citizenship accorded to descendants of stateless persons and immigrants
    • This applies to an applicant who is  made this application before the 1st day of September 2016 and is above 18 years of age whose parent qualify for registration as stateless persons or as immigrants and have either not applied for registration or are deceased and the applicant was born in Kenya and has been living continuously in Kenya from birth, has not been convicted of a crime punishable by imprisonment for more than 3 years, understands and speaks Kiswahili or a local language in Kenya and intends to continue living in Kenya after the registration

 

Where one is registered as a Kenyan citizen, Section 18 provides that an oath (swearing while a religious book attributed to one’s faith) oraffirmation (swearing by lifting your right and) in both cases the words to swear by are availed ] after which a certificate of registration as a Kenyan Citizen is issued in accordance with form 16 in the first schedule to the regulations .

One can however cease being a Kenyan citizen on occurrence of the following:

  1. Revocation of Citizenship
    1. This is done as per the provisions of section 21, regulation 50 and in the manner provided in form17 in the first schedule to the regulations.
    2. Procedure
      1. Cabinet Secretary issue notice in writing to the person whose citizenship is intended to be revoked informing them of the same
      2. Person is required to present before the CS and  show why such revocation should not be done
      3. Cs  decide to and revokes the citizenship by entering their name on the revocation register
      4. The decision is notified to the person  of the revocation within  14 days giving reason for the same
      5. The aggrieved person may appeal to high court within 30 days of  receipt of the revocation and during the appeal, the person is presumed to be continuously in Kenya
      6. Where the appeal is not allowed, the person can appeal to the court of appeal and the supreme court until all appeal channels are exhausted.
      7.  The person whose citizenship is revoked ceased to be a Kenyan citizen on the date of revocation or on the date of the ruling on the last appeal whichever is latter. 
  2.  Voluntary renunciation
    1.  For a Kenyan citizen
      1. This is provided for under section 19 and occurs where a Kenyan citizen by birth voluntarily makes an application in accordance with form 6 in the first schedule to the regulations and regulation 49 renounces their Kenyan Citizenship.
      2. The Cabinet secretary is required to  register the renunciation only after confirming that  the  applicant understands the implications of the renunciation and that registration will not render the person stateless.
      3. On registration of the renunciation, the applicant is required to surrender all the documents relating to registration as a Kenyan Citizen.
    2. For a citizen of another nation
      1. This occurs where the applicant discloses that they intend to renounce the citizenship of another country upon registration as a Kenyan Citizen.
      2. The applicant is required to provide proof of having renounced the citizenshipmof the other state within 30 days of registration as a Kenyan Citizen failure to which they become dual citizens

The act further regulates the entry and exit into and from Kenya but creating the following;

  1. Immigration documents: These are the documents required for one to exit from or enter into Kenya. They are thus a way of keeping track and regulating who may or may not enter or exit from Kenya as one cannot pass the Kenyan borders without the requisite documents.
  2. Points of entry into Kenya: These are laid out in the 4th Schedule to the regulations and show the points where persons travelling by air, road, train and ship may enter or exit from Kenya.
  3. Report required to be made by one on entry or exit from Kenya: When one is entering into or exiting from Kenya, they are required to fill the form 20 inof the first schedule to the regulation which shows the personaldetails of the person, their destination place or place they are travellingto or from,their mode of travel, the period of traveland the reasons for their travel.
  4. Immigration documents
    1. Passports:
      • As provided under section 24, a passport is a travel document issued by the Government of Kenya to the applicant to enable them travel internationally.
      • A passport  remains the property of the Government to be held by the person it is issued to.
      • A person applies for a passport by making an application as per form 19 to the regulations and by complying with regulations 12,13 and 14. The person then makes the requisite fee as provided under the Ninth schedule to the regulations depending on the type of passport they are applying for.
      • Section 27 provides  for the following documents to accompany the application; the birth certificate or adoption certificate of the applicant; the national identity card of the applicant; or a certificate of registration or naturalization, where applicable; or service identity cards for members of the Defence Force;  passport size photographs as may be determined in Regulations; in case of an applicant who is a child or with a disability that renders them dependent, the parent’s  or legal guardian’s written consent; and

 

Types, cost  and validity  of passports as per section 25 & 26 of the Act and ninth schedule to the regulation 

  1. Diplomatic passport: this is issued to a member or a family a diplomatic mission. It contains 48 pages and cost Kshs 7,500/-. Valid for the duration of the mission but expire after 10 years in case of adults and 5 years for children
  2. An ordinary passport which can be issued to any citizen on application. The cost depends on the number of pages being 32 pages; 4500/-, 48 pages 6,000/-, 64 pages 7,500/-. Valid for 10 years in case of adults and 5 years for children
  3. A temporary passport is issued where a Kenyan for special circumstances cannot travel with an ordinary passport. An amount of 3000/ is paid for this. It is valid for 1 year from the date of issue.
  4. An emergency travel document is also issued where a Kenyan citizen is travelled outside Kenya or is being deported for which USD 20 is paid. It is valid for use in all countries for a single journey.
  5. East Africa passport is issued to a person willing to travel to east African community countries and costs 940/-. Valid for 10 years in case of adults and 5 years for children
  6. A temporary permit is used where one is travelling to east African countries and does not have a passport. It costs 300/- and is valid for 1 year.
  7. A certificate of identity and nationality is issued to a peron who is not a Kenyan Citizen but cannot obtain a passport from their country of citizenship to travel to a country outside Kenya and costs 3000/-. Valid for 2 years from the date of issue.
  8. Other passports include:
    • a service passport which cost 6000/- and
    • a refugee travel document which is free and valid for 5 years.

Replacement of lost stolen or mutilated passports

Where one losses their passport, section 28 provides that they shall report the loss to the nearest police station or if outside Kenya the nearest Kenya Mission. They shall then make an for application for a replacement at a cost of 12,000/=- where as a mutilated valid passport the holder shall report to the immigration office and can be replaced at 10,000/-.

Rejection of an application for passport

An application for a passport may be rejected as per the provisions of section 30. The immigration officer is required to notify the applicant of the rejection withi 14 days. The reason for rejection may be due to;

  1. Applicant not being a citizen,
  2. Applicant not qualifying for travel documents as per the act,
  3. Applicant having given  false information in an important field in the application form
  4. Where the application submitted is incomplete

Confiscation of passports

  1. An immigration officer can take/ seize the passport or travel documents of a person where  the holder permits another person to use his passport or travel document;  or the holder has been deported or repatriated to Kenya at the expense of the Government;  or the holder is convicted for drug trafficking, money laundering, trafficking in persons and smuggling, acts of terrorism or any other international crime; or a warrant of arrest has been issued against the holder and there is a risk of absconding; or  the holder is a person against whom there is a court order restricting movement or authorizing denial, taking or suspension of the passport or travel document; or the holder is involved in passport or document fraud, passport or document forgery or transnational crimes; and t is necessary to examine the passport or travel document for a period not exceeding seven days.
  2. The immigration officer shall, on suspending or taking the passport or travel document in is required inform the holder, in writing, within seven days, citing the reason, and may require him to surrender the passport or travel document.
  3. On being served with a notice the holder shall within twenty one days of service, surrender the passport or travel document to the nearest immigration office or an authorized agent.
  4. Where the holder of a passport or travel document fails to surrender the passport or travel document as required it shall become invalid after the expiry of twenty one days from the date of service  of the notice to surrender the passport or travel document
  5. where one  is aggrieved by the decision to suspend  or confiscate their passport , they can within fourteen days of the receipt of written notice of such suspension or confiscation, file an appeal to the High Court.

 

Visas section 33 regulation 18

This is a form of permission to enter into Kenya. The person who obtains a visa to enter into Kenya is required to comply with the regulations. The applicant is required to fill form in the first schedule to the regulations

Work Permits

  1. This is permission to work in Kenya
  2. One makes an application as per section36.
  3. The permits determination committee established under section 40 then analyses the application to see whether the applicant has met the qualification for the class of permit applied.
  4. The committee may require the applicant to give supporting documents or appear before it. 
  5. The classes of the permit range from A-K with processing fees of 10,00/- and the issuance fee  per year ranging from 5,000- 250,000/- depending on the class as set out item d in the ninth schedule to the regulations.
  6. Class M entails permits for refugees which are issued free of charge

Passes  

  1. This refers to permission to either temporarily work in Kenya or while passing through Kenya in transit to another counter.
  2. The director may require that a deposit or bond be remitted as security for a permit or pass to be issued which security or bond shall be utilized in case of deportation, detention, provision of medical services and maintenance of any person who has applied for a pass or permit, their spouses, children or dependents.
  3. The director may require an employer to avail this deposit or bond on behalf of the employee.

How does  a permit become invalid?

  1. A permit shall be rendered invalid and the presence of its holder unlawful in Kenya where the person fails to engage in employment, trade, business or profession for which the permit was issued  in Kenya  or enter into Kenya within  90 days  from the date of issue without the written approval of the Director
  2. Stops to  engage in the said employment, occupation, trade, business or profession for which the permit was issued
  3. or engages in any employment, occupation, trade business or profession, whether or not for remuneration or profit, other than the employment, occupation, trade, business or profession for which the permit was issued.
  4. cease to be valid and the presence of that person in Kenya shall be unlawful, unless otherwise
  5. a work permit of class M (refugees) is issued may engage in any occupation, trade, business or profession, and sections 34, 35, and 36 shall not apply to a child of that person.
  6. Any entry permit, pass, certificate or other authority issued as a result  of fraud or misrepresentation, or the concealment or nondisclosure, whether intentional or inadvertent of any material fact or circumstance, shall be and be deemed always to have been void and of no effect and shall be surrendered to the service for cancellation.

 

Who can apply for permanent residency? Section 38

The following persons, their children and spouses shall be eligible upon application in for grant of permanent residence status in Kenya—

  1.  persons who were citizens by birth but have since renounced or otherwise lost their citizenship status and are precluded by the laws of the countries of their acquired domicile from holding dual citizenship;
  2. persons who have held work permits for at least seven years and have been continuously resident in Kenya for the three years immediately preceding the making of the application;
  3. children of citizens who are born outside Kenya and acquired citizenship of the domicile; and  the spouses of Kenyan citizen married for at least three years.

 Rights enjoyed by  a permanent resident

  1. right to enter and remain in Kenya, subject to the provisions of this Act;
  2. right to be employed in Kenya;
  3. right to attend educational facilities;
  4. right to own property legally in Kenya;
  5. right to move and settle anywhere in Kenya; 
  6. right to access and enjoy social services and facilities in Kenya;
  7. obligation to comply with residency obligation as may be prescribed; 
  8. right to be provided with a permanent residence certificate as prescribed under the regulations; and
  9. obligation to comply with such other conditions as shall be imposed under the regulations.

How can one may lose it their right to permanent residency?  Section 39

  1. on being registered  as a Kenyan citizen
  2. on failing to comply with obligations and conditions under section 38;
  3. when a removal order against him comes into force upon communicating in writing to the Director the intention to cease holding the permanent residence status;
  4. where one acquired the permanent residence status is married to a resident but  the marriage discovered  is genuine.

 

Section 33 outlines the crimes which if a person is suspected to have committed prior to their entry into Kenya, and they have not received pardon, they are not allowed to enter into Kenya. They include human trafficking, smuggling, trafficking narcotics and controlled substances, crimes related to patents, copyrights, intellectual property rights, cybercrimes, piracy, crimes offending public morality, a fugitive of justice, sexual crimes among others.

Removal of persons unlawfully in Kenya: Under section 34, the cabinet secretary has the power to require the removal from Kenya of persons unlawfully in Kenya

  1. Carriers
    •  Carrier owners or persons in charge are required to maintain a record of all their passengers including their crew.
    • They are also required to ensure that persons on board possess the requisite documents for entry into Kenya and where such a person is denied entry for lack of documents, the carrier shall be liable for a surcharge if kshs 200,000/- for each person and may be further required to take that person into their custody and ensure that they are removed from Kenya.
    • Where a carrier brings in persons who are improperly documented, they shall be surcharged 1 million for each person.
  2. Employers
    • an employer is required not to employ a foreign national who;
      •  entered Kenya illegally or
      • whose status does not authorize him or her to engage in employment;
      • or on terms, conditions or in a capacity different from those authorized in such foreign national’s status.
    • The  employer shall be under duty  to apply for and obtain a work permit or a pass conferring upon a foreign national the right to engage in employment before granting him employment and it shall be presumed that the employer knew at the time of the employment that such person was among those who entered Kenya Illegally.
    • An employer employing a foreign national shall for two years after the termination of such employment keep records relating thereto  the employment and  file a report with the Service r in respect of foreign nationals under his employment or in regard to   any breach on the side of the foreign national’s employment.
    • Where a foreign national who entered Kenya illegally is found on any premises where a business is conducted, conducting himself in such a manner as to suggest that he is in employment within the premises, it shall be presumed that such illegal foreign national was employed by the person who has control over such premises, unless evidence to the contrary is provided an employer  who contravenes the provisions of this section commits an offence.
  3. Learning institutions
    • A learning institution and a person in charge of a learning institution providing training or instruction shall before admitting a person for purposes of training or instruction ensure that a person is not a foreign national who is in the country illegally or  a foreign national whose status does not authorize him or her to receive such training or instruction  by such person or a foreign national on terms or conditions in a capacity different from those authorized in such foreign national status.
    • where a  person, being in charge of learning institution allows a student who is required under this Act to obtain a student’s pass to attend such institution before such pupil is in possession of a pupil's pass, commits an offence.
    • The provisions of this section shall not apply to persons holding refugee status residing in designate refugee camps.
  4. Providers of accommodation
    • A business or person offering accommodation shall require all its customers to produce identification documents pertaining to their citizenship before admission.
    • They shall maintain a record of all its customers who are foreign nationals
    • Where this is not complied with and  an illegal foreign national is found on any premises it shall be presumed that such illegal foreign national was harbored by the person who has control over such premises, unless evidence to the contrary is provided.

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