A High Court ruled on Thursday that Mwende Mwinzi, the ambassadorial nominee to Seoul, South Korea, cannot be forced to renounce her US citizenship as it was acquired by birth.
In June, the House approved the report of the Defence and Foreign Relations Committee approving the appointment of all nominees but with a caveat that Ms Mwinzi renounces her US citizenship in line with the Constitution.
But Justice James Makau explained on Thursday that Ms Mwinzi falls within the exception, is protected by the Constitution and is a public officer appointed by the President, not a State officer.
He said her US citizenship cannot be the basis for denying her the job.
The ruling on a petition the nominee filed was a win for Kenyans who acquire citizenship by birth in foreign countries.
But it was a win-lose situation for Ms Mwinzi as Justice Makau said the case she filed was premature because the process of her appointment had not been completed.
The judge dismissed Ms Mwinzi's petition, noting the appointment is a process, not an event.
“It is in the public interest that the process should be allowed to be completed,” he said.
Ms Mwinzi filed her suit at the Constitutional and Human Rights Division of the High Court in February, seeking to have Parliament stopped from forcing her to renounce her US citizenship before she takes up the job.
She said it would be a violation of her rights to be forced out of something she didn’t choose.
“My US citizenship was acquired by birth and as such, my citizenship or the process of opting in was a consequence of circumstances out of my control,” she said in an affidavit.
“I did not participate in the decision to be born in the US and I cannot opt out of that decision. Article 78(3) (b) would only be applicable to people who opted in by applying for citizenship and renunciation would be the process of opting out."
In his ruling, Justice Makau said the nominee falls within the category of Article 78(3)(b), which exempts persons who have been made citizens of another country by operation of that country’s law, without the ability to opt out.
He added that citizenship is an inalienable right, which cannot be taken away.
The court said Ms Mwinzi cannot be forced to opt out of a birthright because she did not participate in the decision to be born in the USA.
He said being born in the USA was beyond her control.
Ms Mwinzi was born in Milwaukee and by virtue of American laws, became an American citizen by birth.
She studied in Mombasa and Kitui and later proceeded to Kenya High and Kyeni Girls' for her secondary education.
During the 2017 general election, she contested the Mwingi Central parliamentary seat after being cleared by the electoral body.
At the centre of the case was whether persons born of Kenyan parents abroad should relinquish their foreign nationality in order to be allowed to serve in the government.
Article 78 (2) of the Constitution states that a State officer or a member of the defence forces shall not hold dual citizenship.
Envoys are public officers and although the Constitution does not expressly categorise them as State officers, clause 52 of the Leadership and Integrity Act says public officers are also State Officers.
Clause 31 (2) of the Leadership and Integrity Act goes on to say that a person who holds dual citizenship shall, upon election or appointment to a state office, not take office before officially renouncing their other citizenship in accordance with the provisions of the Kenya Citizenship and Immigration Act of 2011.
Ms Mwinzi, through her lawyer Tom Ojienda, asked the court to interpret Article 78 of the Constitution on citizenship and leadership, and Article 260 on State officers.