https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8248

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. E218 OF 2025** **BETWEEN** **DANSON MUKILE & 92 OTHERS……………..…......…..… PETITIONERS** **VERSUS** **INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION…………………………………………….1ST RESPONDENT** **ATTORNEY GENERAL…………………………….….....2ND RESPONDENT** **NATIONAL ASSEMBLY……….…….…………………...3RD RESPONDENT** **THE SENATE……………………………………….......4TH RESPONDENT** **AND** **KATIBA INSTITUTE……………………...………1ST INTERESTED PARTY** **LAW SOCIETY OF KENYA…………………….…2ND INTERESTED PARTY** **COMMISSION ON ADMINISTRATIVE JUSTICE….....3RD INTERSTED PARTY** **CENTER FOR MULTIPARTY DEMOCRACY……….4TH INTERESTED PARTY** **ELECTION OBSERVATION GROUP…………….....5TH INTERESTED PARTY** **JUDGMENT** **Introduction** 1. The Petition dated 24th April 2025 challenges the constitutionality of Regulation 34(2) of the Elections (Registration of Voters) Regulations, which limits voter registration and voting of Kenyan citizens living abroad, to countries where Kenya maintains diplomatic relations. The Petitioners are Kenyan citizens residing in the diaspora. They contend that the restriction effectively disenfranchises a significant portion of the estimated 4 million Kenyans abroad and unjustifiably limits their right to vote under Article 38 of the Constitution. 2. The Petitioners seek the following reliefs against the Respondents: 3. ***A declaration that Regulation 34(2) of the Elections (Registration of Voters) Regulations is unconstitutional to the extent that it limits diaspora voting to embassies, high commissions, and consulates, thereby violating Articles 38, 81, and 82 of the Constitution and all other enabling provisions of the law.*** 4. ***An order compelling the 1st Respondent to expand diaspora voter registration and voting beyond embassies, high commissions, and consulates and to include other suitable locations/polling stations.*** 5. ***A declaration that Regulation 34(2) of the Elections (Registration of Voters) Regulations is not a reasonable limitation under Article 24 of the Constitution.*** 6. ***An injunction restraining the 1st Respondent from enforcing the restriction on polling stations to embassies, high commissions, and consulates in the upcoming elections.*** 7. ***An order directing Parliament to amend the Elections Act and any related subsidiary legislation including Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 with a view to ensuring full compliance with Article 38 and Article 82(l)(e) of the Constitution. The amendments should provide for the progressive, inclusive, and non-discriminatory registration and participation of Kenyan citizens residing outside Kenya, regardless of whether such citizens reside in countries with Kenyan embassies, high commissions, or consulates.*** 8. ***Any other relief that this Court deems fit and just to uphold the Constitution and protect the rights of Kenyan citizens abroad.*** 9. ***Each party to bear their own costs as this Petition is brought in public interest.*** **Petitioner’s Case** 1. The Petitioners averred that they are Kenyan citizens residing outside the country and are seeking to vindicate their right to vote under Article 38 of the Constitution. The 1st Petitioner, resides in Dallas, Texas. He swore the supporting affidavit on behalf of all the Petitioners. 2. The Petitioners contend that the Kenyan diaspora population continues to grow and that by year 2023 it is estimated that it would be at approximately 4,000,000. He further states that diaspora remittances reached a record Kshs. 637.3 billion in 2024, representing approximately 4.6% of Kenya’s GDP. In his view, the diaspora therefore constitutes a significant economic and social constituency. 3. Despite this, the Petitioners aver they are, together with other Kenyans residing abroad, effectively excluded from participating in voting, by virtue of Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012. In particular, the impugned provision limits voter registration for Kenyan citizens residing outside Kenya to countries in which Kenya maintains an Embassy, High commission, or Consulate. Consequently, Kenyans residing in countries such as the United States, Canada, the Kingdom of Saudi Arabia, Australia, the United Kingdom, China, Sweden, Finland, Norway, Denmark, Belgium, and South Africa, among others, are allegedly unable to register or vote. 4. The Petitioners allege that although some Kenyans have travelled to countries such as the United States, Australia, Canada, and the United Kingdom to vote, this option is impractical for many due to the attendant costs. They therefore contend that the absence of adequate legislation to address this issue has effectively disenfranchised millions of Kenyans living in over 100 countries, thereby curtailing their right to vote. 5. By way of comparison, the Petitioners assert that countries such as Rwanda and Moldova have successfully implemented diaspora voting mechanisms, including the establishment of voter registration and polling centers outside embassy and consular premises. Similarly, the Republic of the Philippines is said to have implemented a structured overseas voting system under the Overseas Absentee Voting Act (Republic Act No. 9189), which allows eligible Filipino citizens residing abroad to register and vote through personal or postal voting at designated polling centers, including centers located outside embassy and consular premises. The United States of America is also said to have adopted internet voting as a primary mode of voting for overseas voters during its 2025 national elections. On that basis, it is argued that it is both practical and feasible for states to extend voter registration and polling facilities to diaspora populations beyond embassy or consular premises, thereby enhancing the realization of the right to vote for citizens residing abroad. 6. The Petitioners contend that the impugned Regulation imposes an unreasonable limitation that is discriminatory, arbitrary and unjustifiably conditions the enjoyment of a constitutional right on the existence of a diplomatic office. He stresses that this creates inequality in access to the franchise and violates Articles 24, 27, 38(3), 81, 82, and 83 of the Constitution. The Petitioners further aver that the limitation is unreasonable, unjustifiable, and disproportionate within the meaning of Article 24 of the Constitution. In addition, the impugned provision is said to undermine the progressive realization of the Petitioners’ voting rights and to be inconsistent with international instruments, particularly Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees every citizen the right to participate in public affairs. 7. Lastly, the Petitioners fault the Respondents for failing to undertake reforms or provide an effective policy response despite repeated calls for engagement with the 1st Respondent and other relevant state agencies, thereby necessitating the filing of the present suit. In this regard, the Respondents are alleged to have failed to comply with Section 109 of the Elections Act and Section 25 of the Independent Electoral and Boundaries Commission Act. **1st Respondent’s Case** 1. Rebutting the Petition, the 1st Respondent filed its response dated 3rd July 2025. 2. At the outset, the 1st Respondents asserts that while the right to vote is a fundamental right, it is not an inalienable right *but a right subject to the limitations stipulated under Article 24 of the Constitution*, hence not an absolute right. 3. The 1st Respondent deposed that ever since the Elections (Registration of Voters) Regulations, 2012, came into force, it has undertaken significant steps to ensure that registration of Kenyans living in the diaspora as voters, is realized progressively, under the principle of incremental progress, toward a full-scale attainment of the right to vote. It is noted that in 2013, the number of registered voters in the diaspora in 2017 was 4,223, as compared to 10,444 registered voters in 2022.This increase was made possible owing to the criteria revolving around: *there is a presence of a Kenyan Mission (Embassy, High Commission or consulate, number of registered citizens with Kenyan Missions in host countries, political environment in host governments should be conducive, stable and predictable and financial sustainability to support logistical, operational and administrative costs of carrying out such an activity*. 4. Following this, the 1st Respondent avers that it was able to conduct elections outside Kenya in Uganda, Tanzania, Rwanda, and South Africa in 2017. In 2022, it increased to 12 countries, being Uganda, Tanzania, Rwanda, South Africa, United States of America, Canada, South Sudan, Germany, United Kingdom, Qatar, and the United Arab Emirates. In addition, the 1st Respondent has partnered with the State Department of Diaspora Affairs, to enhance the progressive participation of the diaspora community, by facilitating voting for Kenyan citizens in the diaspora. 5. Nevertheless, it is highlighted that implementation of the impugned Regulations has faced challenges especially with the pace of progress. Particularly, it is noted that implementation of the impugned Regulation has presented complex problems such as financial constraints. It is stressed that the 1st Respondent’s financial sustainability to support logistical, operational and administrative costs of carrying out elections in the diaspora, is entirely dependent on the budgetary allocation passed by the Legislature. 6. To underscore this point, the 1st Respondent avers that its’ preparations for the 2027 General Election are already facing a budget shortfall of at least KES 7.2 Billion, following the Cabinet revising downward its initial estimate of KES 61.7 billion, to KES 57.38 billion, as a measure of budget rationalization. Regardless, the 1st Respondent states that it is still optimistic that the 2027 General Elections will be funded in three fiscal years, starting with Year 2025/2026.It further projects to gazette 55,393 polling stations up from 46,229 in 2022. 7. Considering these factors, the 1st Respondent asserts that the measures it has undertaken has placed it in the right path towards full realization of Kenyans living in the diaspora, right to vote. Further to this, the 1st Respondent is in the process of reviewing a Draft Strategic Plan for 2024-2029 which covers technological advancements, good governance practices, legal and regulatory requirements, as well as its long-term vision. This will enable the 1st Respondent to improve its electoral operations and processes and ensure that it fulfils its mandate of conducting fair and transparent elections. 8. That said, the 1st Respondent stresses that the impugned Regulations enjoy the presumption of constitutionality and thus the burden to prove otherwise rests on the Petitioners. Equally, it is argued that declaring the impugned Regulations unconstitutional will further throw into disarray, the Petitioner’s right to vote as there will be no express mechanism upon which the 1st Respondent can realize this right. 9. Filing this Petition 13 years later is contended to be an afterthought as throughout this period, the 1st Respondent has successfully conducted three general elections outside Kenya in 2013, 2017 and 2022, under the impugned, Regulation 34(2) of the Elections (Registration of Voters) Regulations, without any legal challenge. 10. Further to this, it is stressed that the 1st Respondent cannot deviate from the impugned provision as it obligates it to restrict the process to designated embassies, high commissions, and consulates. The 1st Respondent also reminds the Court that Article 10 (2) (c) of the Constitution obligates it to deliver a credible election within its principles. 11. That said, it is noted that the sovereign authority of the Republic of Kenya does not extend beyond its territorial boundaries except through diplomatic missions duly accredited under International Law. As such, attempting to conduct elections outside this limit will infringe the sovereignty of host states and violate the principles of international law and diplomacy. 12. In light of this, it is averred that the Petition is grossly misconceived and premature, as offends the doctrine of separation of powers in so far as the Petitioners’ seek an expanded diaspora voter registration and voting beyond embassies. Similarly, the Petition as pleaded is said not meet the test required for a constitutional petition. On this premise, the 1st Respondent urges the Court to find that Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 is constitutional and dismiss the Petition. **2nd Respondent’s Case** 1. In reaction to the Petitioners’ case, the 2nd Respondents’ filed undated Grounds of Opposition. The 2nd Respondent opposes the Petition on the basis that: 2. *The Petition is misconceived and legally untenable as it seeks to compel the implementation of diaspora voting in jurisdictions where the Republic of Kenya has no diplomatic presence, contrary to established principles of international law, sovereignty and diplomatic protocol.* 3. *The Petition fails to appreciate that the right to vote, whilst fundamental, is not absolute and may be subjected to lawful limitations including logistical, administrative, financial and international legal constraints.* 4. *The limitation imposed by Regulation 34(2) of the Elections (Registration of Voters) Regulations 2012, which restricts registration and voting of Kenyan citizens abroad to countries where Kenya maintains an Embassy, High Commission or Consulate is a reasonable, justifiable and proportionate limitation in an open and democratic society pursuant to Article 24 of the Constitution.* 5. *The ability to facilitate voter registration and conduct elections abroad is directly contingent upon the presence of established consul infrastructure which provides the legal, administrative and logistical framework within which the Kenyan Government operates in foreign jurisdictions.* 6. *The sovereign authority of the Republic of Kenya does not extend beyond its territorial boundaries except through diplomatic missions duly accredited under international law. As such, any attempt to conduct elections or register voters outside Kenyan diplomatic missions would infringe the sovereignty of host states/our state and violate the principles of international law and diplomacy.* 7. *The requirement that registration and voting of Kenyan citizens abroad be conducted at Kenyan Embassies, High Commissions or Consulates is a neutral and objective criterion. All Kenyan citizens living abroad are subject to the same conditions regardless of their geographical location. It therefore does not amount to arbitrary discrimination but is grounded in administrative necessity and the respect for the sovereignty of host nations.* 8. *The Petition does not disclose any actual or threatened violation of the Constitution attributed to the 2nd Respondent. The impugned Regulations 34(2) merely operationalizes the framework for registration of Kenyan citizens abroad in a manner consistent with Articles 38(3) and 82(1)(e) of the Constitution which provides for the progressive realization of diaspora* 9. *The framers of the Constitution foresaw the hurdles that comes with registration and taking part in elections in countries without Kenyan consular and appreciated that this realization in such territories can only be progressive rather than as a matter of immediacy.* 10. *The regulatory regime governing diaspora participation in elections, including the designation of polling stations at consulates and embassies reflects Kenya's ongoing and evolving efforts to realize electoral inclusion while ensuring compliance with diplomatic norms and institutional capacity.* 11. *The Petitioners have not established any unlawful omission or dereliction of duty by the 2nd Respondent in either promoting electoral reforms or facilitating diaspora voting, particularly as the Implementation of Regulation 34(2) falls within the mandate of the 1st Respondent, that is an independent office and the relevant legislative arms.* 12. *The Petitioners have not established with specificity any credible or immediate risk of disenfranchisement as the voter registration exercise for the upcoming general elections has not yet begun neither has a determination on the polling centers been made.* 13. *The Petitioners have not met the constitutional threshold under Article 24 to demonstrate that the limitations imposed by Regulation 34(2) are unreasonable or unjustifiable in a democratic society and the reliefs sought are speculative, overbroad and incapable of implementation without violating other constitutional provisions and international norms.* 14. *The reliefs sought, including the potential invalidation of Regulation 34(2) would amount to unwarranted judicial interference with the policy making. legislative functions and mechanics of voter registration constitutionally vested in the Independent Electoral and Boundaries Commission, Parliament and the Executive.* 15. *The issues raised by the Petitioners are matters of administrative policy and legislative discretion and are therefore ill-suited for adjudication by this Court in the manner framed.* 16. *The Petition is therefor without merit, an abuse of the court process and ought to be dismissed with costs to the Respondents.* **3rd Respondent’s Case** 1. Rebutting the Petition, the 3rd Respondent filed Grounds of Opposition dated 12th April 2026 on the basis that: 2. *While the Petitioners are entitled to approach this Court, the relief sought in the Petition, particularly the directive compelling Parliament to undertake legislative reforms, respectfully invites this Court to venture into the exclusive legislative mandate of the National Assembly, contrary to the principle of separation of powers enshrined in Articles 94(5) and 95 of the Constitution.* 3. *The prayers sought, particularly the “Legislative Directive” compelling Parliament to undertake legislative reforms, constitute an invitation for this Court to engage in judicial overreach by usurping the constitutional function of the National Assembly.* 4. *Further, the Petitioners have failed to demonstrate that the legislative process leading to the enactment of Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012 was flawed or that Parliament exceeded its delegated authority under Section 109 of the Elections Act (Cap 7) and the Statutory Instruments Act.* 5. *There exists a presumption of constitutionality regarding all duly enacted laws and regulations, and the burden lies with the Petitioners to demonstrate, with cogent evidence, that the impugned Regulation 34(2) of the Elections (Registration of Voters) Regulations is unconstitutional; a burden they have failed to discharge.* 6. *Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012, is a valid exercise of delegated legislative authority and is not ultra vires the Constitution. It provides a practical and administrative framework for the Independent Electoral and Boundaries Commission (“IEBC”) to operationalize diaspora voting.* 7. *Applying the principle of purposive interpretation established in the cases of* ***Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR*** *and* ***The Queen v Big M Drug Mart Ltd****, the purpose and effect of the impugned Regulation 34(2) must be discerned by considering the intention of the legislature, the mischief sought to be remedied and the context of the entire statute and Constitution; in this regard, the right to vote for citizens residing outside Kenya under Article 82(1)(e) of the Constitution is subject to progressive realization, a principle affirmed in* ***Advisory Opinion No. 2 of 2012 and Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR)****, which acknowledges that the full realization of such rights may be achieved over time due to logistical, financial, and administrative constraints.* 8. *The Petitioners have failed to discharge their burden of demonstrating that Regulation 34(2) is not the “least restrictive means” to achieve the legitimate aim of managing diaspora voting logistically, as required under Article 24 of the Constitution, which mandates that any limitation on rights must employ the method that restricts the right no more than is necessary to accomplish the objective, yet the Petitioners have not shown any feasible, practical and secure alternative mechanism to the embassy-based system that would achieve the same administrative goals while imposing a lesser restriction on voting rights.* 9. *Furthermore, Regulation 34(2) does not discriminate against Kenyan citizens on the basis of geographical location under Article 27 of the Constitution. The regulation applies uniformly to all Kenyans residing outside the country and is based on a neutral and objective criterion (the existence of State infrastructure) rather than targeting any specific group.* 10. *The National Assembly has not abdicated its constitutional mandate. The assertion that Parliament has failed to enact legislation for the progressive registration of diaspora voters is factually incorrect and made in bad faith.* 11. *In furtherance of its mandate under Article 82(1)(e), the National Assembly is currently considering The Elections (Amendment) (No.2) Bill, 2024. The Bill proposes the introduction of Section 8A, which seeks to institutionalize independent voter register audits and enhance the accuracy and inclusivity of electoral systems for citizens abroad, thereby advancing the progressive realization of diaspora voting rights.* 12. *The pendency of the said Bill before the House demonstrates that the legislative process regarding diaspora voting is dynamic and ongoing and this Court should not issue orders that would preempt or interfere with that process.* 13. *The Petitioners have failed to demonstrate a specific, clear and present breach of any negative constitutional obligation by the National Assembly contrary to the principle upheld in* ***Anarita Karimi Njeru v Republic [1979] KLR 1272*** *where a party seeking constitutional relief is obligated to set out with reasonable precision the provisions alleged to be infringed and the manner of infringement.* 14. *In the present matter, the Petitioners have merely listed numerous constitutional provisions without demonstrating, with any degree of specificity, how the National Assembly has violated any constitutional duty.* **4th Interested Party’s Case** 1. The 4th Interested Party in reaction to the Petition filed its Replying Affidavit through its Chief Executive Officer, Mercy K. Wambua, sworn on 5th September 2025. 2. Reiterating the key challenge in this matter, the 4th Interested Party contends that the balance between facilitating the broadest possible enjoyment of political rights and addressing logistical, security and administrative considerations in electoral management requires consideration. 3. The 4th Interested party acknowledges that Kenyans residing abroad without access to diplomatic missions may encounter difficulties in exercising their political rights under the existing regulatory framework but at the same time appreciates that the Respondent bears the responsibility of safeguarding the integrity, practicality, and credibility of the electoral process. In this regard, the 4th Interested Party emphasizes that international practice and jurisprudence recognize that States retain a measure of discretion in structuring diaspora voting systems, provided that such arrangements do not impose unreasonable or unjustifiable limitations on the exercise of political rights. 4. In light of this, the 4th Interested Party underscores the need for this Court to examine whether the impugned Regulation imposes a reasonable and justifiable limitation on the right to vote under Article 24 of the Constitution and whether the Regulation, in its current form, is consistent with the principles of inclusiveness, equality, and non-discrimination under Article 10 of the Constitution. 5. In light of the foregoing, it is submitted that this Petition will offer important guidance on striking a balance between electoral administration and the realization of political rights for Kenyans in the diaspora. Accordingly, the 4th Respondent urges the Court to consider the constitutional issues raised and give appropriate guidance. **Petitioners’ Submissions** 1. Mulandi Kisabit and Associates Advocates for the Petitioners filed submissions dated 16th January 2026 and outlined the issues for determination as follows: -*whether the Petition meets the threshold of a constitutional petition, -whether this Court has jurisdiction to entertain this matter and,* *- whether Regulation 34(2) of the Elections (Registration of Voters) Regulations unreasonably limits the voting rights of Kenyans in the diaspora.* 1. On the first issue, Counsel answered in the affirmative. Counsel relied on Rule 4(1) and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 to submit that the Petition meets the threshold of a constitutional petition. Counsel emphasized that the Petition highlights violation of the Petitioners’ rights and the manner in which these violations have been occasioned by the Respondents. Particularly, the Petition highlights Articles 1, 2, 3(1),10, 19, 20, 21, 22, 23, 24, 27, 38,48, 81, 82, 88, 156 (6), 258 and 259 of the Constitution and demonstrates the key particulars of the Petitioners claim. 2. To further buttress this point, Counsel cited the case of **Anarita Karimi Njeru v the Republic (1979) KLR 1272** where the Court emphasized the importance of reasonable precision in pleading a constitutional violation as follows: *“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if any to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”* 1. To further support this Petition, Counsel relied on **Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR)**. 2. On jurisdiction, citing the case of **Owners of Motor Vessel (Lilian S) v Caltex Oil (Kenya Ltd) [1989] KLR 1** to emphasize the significance of jurisdiction and argued that this Court has the jurisdiction to hear this matter by dint of Article 165 (3) (b) of the Constitution. 3. As to the issue of *whether Regulation 34(2) of the Elections (Registration of Voters) Regulations unreasonably limits the voting rights of Kenyans in the diaspora,* it was submitted on behalf of the Petitioners that this Petition does not in any way seek preferential treatment, instead, it challenges the practical and disproportionate limitation imposed by the impugned provision as restricts voter registration and polling only at the embassy, high commission and consulate premises, without regard to Kenyan citizens population distribution, distance of travel, cost of travel or feasibility in countries with a large land mass like the United States, Australia, China among others. This is despite evidence that other countries with equal diplomatic mission in these countries have allowed temporary polling centers without causing any jurisdiction issues such as in the case of Rwanda. Considering this, it was submitted on behalf of the Petitioner that failure to adopt similar alternatives curtails the Petitioners rights under Article 38 of the Constitution. 4. The Petitioners submit the regulation conditions the enjoyment of the constitutional right on the geographical location of a diplomatic office, an administrative factor entirely unrelated to voter eligibility or electoral integrity. Owing to this, Counsel reiterated that Kenyan citizens in the United States, Canada, Australia and the United Kingdom, countries where Kenya already maintains diplomatic missions, are compelled to incur exorbitant travel costs per trip, often traversing distances exceeding 2,000 to 6,000 kilometers just to exercise their right to vote. On the other hand, Kenyan citizens residing in countries such as United States, Canada, Kingdom of Saudi Arabia, United Kingdom, Australia, China, Sweden, Finland, Norway, Denmark, Belgium, South Africa among others have been unable to register as voters and to vote unless they incur significant travel costs to reach a designated mission often across different states, territories, provinces and countries to access polling stations, which is both impractical and financially burdensome. Accordingly, Counsel argued that the impugned provision creates indirect discrimination contrary to Article 27 of the Constitution, by privileging those who live near diplomatic offices and disadvantaging those who do not. 5. To buttress this point reliance was placed in **Kituo cha Sheria v. IEBC & Another [2013] eKLR** where it was held that: *“In conclusion, the Learned Judge directed, “The government and IEBC must be told that they need to put in place efficient, concrete and realistic mechanisms including fiscal and logistical measures to ensure that all citizens living abroad take part in the General Election following the March 2013 elections.” Unlike, the situation in the Priscilla Kanyua Case (Supra) where the order was directed to ensure that prisoners vote in the referendum, the General Election involves elections at several levels of government and it is in this respect that the sentiments of Justice Lenaola I have alluded to are apposite particularly given the specific challenges of the first general elections... [33]. The obligation of the Court is to give effect to the rights contained in the Bill of Rights and the fact that giving effect to these rights may be inconvenient cannot override constitutional imperatives. In the Arnold Keith August Case (Supra), Justice Sachs noted that the Court did not have information or expertise to enable it decide the nature of arrangements which should be made or how they should be effected once the court had made a finding that prison inmates were entitled to vote. It nevertheless made the necessary directions to enable inmates vote.”* 1. Further reliance was placed on **Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others (Petition 25 of 2014) [2015] KESC 21 (KLR)**. 2. On progressive realization of this right, Counsel relied in **Matindi & 2 others v Independent Electoral and Boundaries Commission & 8 others; Commission on Administrative Justice & 4 others (Interested Parties) ([2022] KEHC 9763 (KLR)** where it was held that: *“In progressive registration of Kenyans living in the diaspora to vote, and whether such registration ought to attach to all elective positions, the apex court referred to its earlier decision in Supreme Court Application No 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate where it was observed as under:-* *The concept of ‘progressive realization’ is not a legal term; it emanates from the word ‘progress,’ defined in the Concise Oxford English Dictionary as ‘a gradual movement or development towards a destination.’ Progressive realization, therefore, connotes a phased-out attainment of an identified goal... Such language entails no technicality, but is simply concerned to prescribe the extent of a State’s obligation in the realization of rights embodied in the human rights Conventions”.* 1. Also cited in support was **Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others (supra)**. 2. Counsel underscored that despite the clear directions issued by the Supreme Court on putting in place an infrastructure for the comprehensive registration of Kenyan citizens in the diaspora as voters, the 1st Respondent has failed to implement the ordered progressive registration framework, resulting in stagnation rather than progressive expansion of diaspora voter registration and participation. In Counsel’s view, logistical inconvenience to the State cannot justify disenfranchisement of citizens abroad and the 1st Respondent must adopt practical and effective measures to enable external voting where feasible. As such, Counsel stressed that Kenya’s current approach is unduly restrictive and out of step with democratic best practice making it unconstitutional. **1st Respondent’s Submissions** 1. The 1st Respondent through Muchemi and Company Advocates filed submissions dated 17th February 2026 and outlined the issue for discussion as: *whether Regulation 34(2) of the Elections (Registration of Voters) Regulations unreasonably limits the voting rights of Kenyans in the Diaspora*. 2. Counsel submitted that this provision provides that *‘a decision by the Commission to register Kenyan citizens residing outside Kenya or to conduct elections outside Kenya shall be based on the presence of a Kenyan Embassy, High Commission or Consulate’*. Counsel submitted that the 1st Respondent which is charged with the obligation to implement this provision has encountered complex problems. Counsel noted that the Supreme Court in **Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others (supra)** observed as follows: *“Kenya is a Republic founded upon democratic principles. The right to vote is, therefore, a vital element in the laws pertaining to governance. This right, however, like other rights not designated as inalienable rights under Article 25, may be limited in the manner and form permitted under Article 24 of the Constitution… A few years ago, Kenyans in the diaspora could not actualize their right to vote; and while this right is currently limited to Presidential elections, and referenda, this limitation is inherently transient in nature. The intended object stands to be realized sooner or later, depending on developments in electronic technology, and on the due commitment of each of the relevant agencies of constitutional governance.”* 1. As such, Counsel emphasized that the complexity of the problems presented by the impugned Regulation does not negate the legislation, but only requires a graduated approach to its realization in the diaspora. To support this argument reliance was placed in **Okoiti v Attorney General & another; Matindi (Interested Party) [2025] KEHC 6897 (KLR)** where it was held that: *“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 under article 38(3) or 83(3) of the Constitution.”* 1. In light of the foregoing, Counsel argued that the cited authorities make it manifest that they all support a progressive realization of the right to vote, while recognizing the right may be limited in the special circumstances presented by this Regulation. Nevertheless, it was argued that the 1st Respondent had demonstrated the steps taken since 2013, to enhance the progressive participation of the diaspora community by facilitating voting for Kenyan citizens in the diaspora, voter registration for diaspora voters, voter education for Kenyans living in diaspora. In closing, Counsel underscored that since the sovereign authority of the Republic of Kenya does not extend beyond its territorial boundaries except through diplomatic missions, any attempts by the 1st Respondent to conduct elections or register voters outside Kenyan Diplomatic missions would infringe the sovereignty of host states and violate the principles of international law and diplomacy. **3rd Respondents’ Submissions** 1. Counsel, Sophie Otieno filed submissions dated 12th April 2026 wherein she outlined the issues for discussion as: *whether the Petition meets the threshold of a constitutional litigation, whether the Orders sought by the Petitioners, particularly the directive to Parliament to amend legislation, violate the constitutional principle of separation of powers enshrined in Articles 94(5), 95, and 129 of the Constitution and whether the matter is premature for judicial intervention, given that the impugned Regulation 34(2) is a constitutionally adequate provision for the current stage of progressive realization and Parliament is actively considering legislative amendments to expand diaspora voting rights*. 2. To commence with, Counsel submitted that the Petition fails to meet the threshold set out in **Anarita Karimi Njeru** (supra).This is since, a review of paragraphs 15 to 32 of the Petition shows that the Petitioners merely cite constitutional provisions in general terms however fails to particularize, with any degree of precision, the manner in which the Respondents and specifically the 3rd Respondent, have infringed or threatened to infringe each of the cited provisions. 3. Counsel further relied on **Mumo Matemu** (supra) and **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR**. 4. Further to this, Counsel submitted that while the Petitioners seek a declaration that Regulation 34(2) is unconstitutional, they fail to substantiate this claim with clear evidence, and particularly how the 3rd Respondent acted in bad faith or exceeded its delegated authority under Section 109 of the Elections Act. As a consequence, the Petition is adjudged as broad, generalized and lacks the requisite specificity. 5. Furthermore, Counsel argued that the ‘*prayer e’* in the Petition which seeks the Court to direct the Parliament to amend the Elections Act and the impugned Regulation is a direct contravention of the doctrine of separation of powers as is offensive to Article 94 and 95 of the Constitution. Counsel stressed that the Petitioners have neither demonstrated exceptional circumstances warranting judicial intrusion nor established any inaction, incapacity, or bad faith on the part of the 3rd Respondent to justify the drastic remedies sought. 6. In support of this position, Counsel relied in **Parliament of Kenya & another v Okoiti & 2 others [2026] KESC 28 (KLR)** where it was held that: *“This Court has consistently held, including in In the Speaker of the Senate Case and Mate & Another Vs Wambora & Another [2017] KESC 1 (KLR) (Mate), that, while courts retain authority to determine whether constitutional obligations have been met, they must exercise restraint and avoid directing other arms of government on how to perform their constitutional mandate. In the Speaker of the Senate Case we expressly recognized the power of Houses of Parliament to establish and regulate their internal procedures without undue interference from the courts. We held thus at para. 61:* *“...This Court will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another.”* 1. That said, Counsel stressed that the 3rd Respondent has not been dormant in executing its mandate. Counsel stated that the legislative process regarding diaspora voting rights is ongoing as evidenced by the pendency of the Elections (Amendment)(No.2) Bill, 2024 (Senate Bill No. 29 of 2024), which is still being considered. Counsel argued that this demonstrates active legislative engagement with electoral reforms. 2. In a nutshell, Counsel highlighted that the Bill is an attempt by Parliament to address foundational electoral integrity issues, from independent voter register audits (Clause 5) to secure results transmission within a strict two-hour timeframe (Clause 22, new Section 39(4)(b)), from data localization requirements (Clause 23) to transparency provisions (Clause 30) and from polling station rationalization (Clauses 20-21) to access to information (Clause 30), Parliament is systematically building the legal and technical infrastructure necessary for credible elections. In Counsel’s view therefore, to compel Parliament to expand polling stations abroad before this audit framework is finalized would be to put the cart before the horse. 3. On this basis, Counsel argued that the Petition is premature. Counsel added that the term progressive as captured under Article 82(1) (e) of the Constitution is significant as it means that the full realization of diaspora voting rights must, be achieved over time, considering logistical constraints, financial constraints and administrative constraints. Reliance was placed in **KKB v SCM & 5 others [2022] KEHC 289 (KLR)** where it was held that: *“In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause…”* 1. In light of the foregoing, Counsel submitted that diaspora voting, while constitutionally envisaged, is not an absolute or self-executing entitlement capable of immediate full realization without regard to prevailing practical constraints. To stress this point, reliance was placed in **Re the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR** where the Supreme Court held that: *“This leads us to the inference that whether a right is to be realized “progressively” or “immediately” is not a self-evident question: it depends on factors such as the language used in the normative safeguard, or in the expression of principle; …it depends on the nature of the right in question.”* 1. Accordingly, Counsel argued that the impugned Regulation is constitutional as is a practical and reasonable step in the progressive realization of diaspora voting rights. Counsel pointed out that the Petitioners have not placed before the Court any verifiable alternative to the embassy-based framework, nor have they identified specific jurisdictions, venues or funding mechanisms to support their claim. In the absence of such evidence, Counsel argued that there is no legal or factual basis upon which the Regulation can be impugned as unconstitutional. 2. Counsel, further submitted that the Petitioners have failed to consult alternative mechanisms as provided under Article 119(1) of the Constitution and Petitions to Parliament (Procedure) Act. Counsel submitted that the Petitioners had not demonstrated any attempt to invoke this avenue nor sought from Parliament the reliefs they now invite this Court to grant. Considering this, Counsel submitted that where the Constitution provides a specific mechanism for redress, such process ought to be exhausted before resorting to constitutional litigation. To this end, Counsel urged that the Petition lacking in merit ought to be dismissed. **Analysis and Determination** 1. It is my considered take that the key issues that arise for determination in this matter are as follows: 2. ***Whether the Petition meets the threshold of a constitutional petition.*** 3. ***Whether Regulation 34(2) of the Elections (Registration of Voters) Regulations is unconstitutional.*** 4. ***Whether the Petitioners are entitled to the relief sought.*** 5. ***Whether the Petition meets the threshold of a constitutional petition.*** 6. The 2nd Respondent citing paragraphs 15 to 32 of the Petition argued that that the Petitioners merely recite constitutional provisions in general terms without particularizing, with degree of precision, the manner in which the Respondents have specifically infringed or threatened to violate the said provisions. The Petitioners denied this assertion and stated that the Petition clearly identifies and provides details about the constitutional violations that necessitated its institution. 7. The test for a constitutional petition is premised on a satisfaction of the specificity and precision which requires identification of the constitutional provisions infringed and a demonstration of the manner in which the alleged violations occurred. The Court in **Munene vs Director of Public Prosecutions & 3 others [2023] KEHC 25900 (KLR)** observed as follows: ***“27. The jurisdiction of the High Court in dealing with Constitutional Petitions is properly invoked once a Petition that complies with the constitutional and legal requirements is lodged. The Court must, therefore, decline any invitation by a Petitioner to deal with an alleged Petition which falls short of the laid down parameters on Constitutional Petitions.”*** 1. The Supreme Court in **Communications Commission of Kenya (supra)** guided as follows: ***“[349] …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”*** 1. The present Petition primarily challenges the constitutionality of Regulation 34 (2) of the Elections (Registration of Voters) Regulations. The Petitioners’ grievance is that it restricts them, as Kenya’s diaspora population to voting only at Embassies, High Commissions and in Consulates. They complain this has arbitrarily and unjustifiably limited their constitutionally guaranteed rights under articles 38 (3), 81 and 82 of the Constitution. The Petition thus articulates the exact nature of the grievance- which is, the regulation arbitrarily restricts them to voting at Embassies, High Commissions and Consulates. Further, it proceeds to identify the Constitutional provisions that are allegedly violated by this requirement in particular, Articles 38, 81 and 82 of the Constitution by includes the manner, which is formulating a regulation that unjustifiably limits the enjoyment of the guaranteed right. 2. By linking the specific regulatory restriction to identified Articles of the Constitution and explaining how this curtails the constitutionally guaranteed rights, the Petition in my considered view has sufficiently met the Constitutional threshold articulated in the locus classicus case of **Anarita Karimi Njeru v Republic (1979) eKLR** in that it has set out with reasonable of precision the complaint, the provisions infringed and the manner of infringement. The submission that the Petition does not meet the threshold of a constitutional petition is therefore lacks merit. ***Whether Regulation 34(2) of the Elections (Registration of Voters) Regulations is unconstitutional.*** 1. The impugned provision which is contained in **Elections (Registration of Voters) Regulations, 2012** states as follows: **PART VIII – REGISTRATION OF KENYAN CITIZENS RESIDING OUTSIDE KENYA** 34. **Registration of Kenyan citizens residing out of Kenya (1) The Commission shall, at regular intervals, publish the names of countries in which registration and voting is scheduled to take place.** **(2) A decision by the Commission to register Kenyan citizens residing outside Kenya or to conduct elections outside Kenya shall be based on the presence of a Kenyan Embassy, High Commission or Consulate** 1. The Petitioners contend that regulation 34(2) it is unconstitutionalon the basis that it unreasonablylimits the voting rights of Kenyans in the diaspora by conditioning their enjoyment of the constitutional right to vote to geographical location of a diplomatic office, an administrative factor that is entirely unrelated to voter eligibility or electoral integrity. It was further argued on behalf of Petitioners that the impugned provision creates indirect discrimination contrary to Article 27 of the Constitution, by privileging those who live near diplomatic offices while disadvantaging those who do not. 2. The Respondents, although acknowledging that the right to vote is a fundamental right, they nonetheless countered that the right is not inalienable and may be limited provided that the conditions prescribed under Article 24 of the Constitution are met or are shown to exist. The Respondents position was that the full realization of voting rights by those in diaspora is subject to many factors and thus can only be realized progressively through incremental progress. The Respondent asserted that positive achievement continues to be witnessed because in 2017, only 4223 diaspora voters were registered whereas in 2022, the number more than doubled as those registered came to 10,444. 3. The Respondents contended that the the activity has take into account several considerations including, the presence of the Kenyan Embassy, High Commission or Consulate; the number of registered Kenyans with the Kenyan Embassy in the host country, the political environment of the host government which must be conducive for such an activity; stable, predictable financial sustainability to support logistical, operational and administrative cost of carrying out the activity. 4. To determine whether **Regulation 34 (2) of the Elections, (Regulation of Voters) Regulation 2012**, is unconstitutional or not, the Court must make reference to the principles of Constitutional interpretation. In **Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika [2024] KEHC 2890 (KLR),** the Court summarized the key principles as follows: ***“111. The developing precedent on constitutional interpretation from the superior courts has now evolved and coalesced as follows;*** ***Article 259 of the Constitution as a mandatory principle obliges courts to protect and promote the spirit, purposes, values and principles of the Constitution, advance the rule of Law, Human Rights and fundamental freedoms in the Bill of Rights and contribute to good governance while permitting development of the law.*** ***The Constitution must be construed holistically, liberally, purposively and in a broad manner so as to avoid a narrow and rigid interpretation tainted with legalism.*** ***The Constitution must be interpreted in a contextual manner, that courts are constrained by the language used and so cannot impose a meaning that the text is not reasonably capable of bearing. Furthermore, constitutional interpretation does not favour a formalistic or positivistic approach but a generous construction of the text in order to afford the fullest possible constitutional guarantees.*** ***In considering the purposes, values and principles while interpreting the Constitution, courts must take into account the non-legal phenomena by reflecting on the history of the text.*** ***Constitutional interpretation demands that no one provision of the Constitution should be segregated from the others or be considered alone. The provisions are to be interpreted as an integrated whole so as to effectuate the greater purpose of the Constitution.*** ***Where there is an impugned provision in a Statute the same must as much as possible be read in conformity with the Constitution to avoid a clash.*** ***The court ought to examine the object and purpose of the Act (Statute) and if any statutory provision read in its context can reasonably be construed to have more than one meaning the court must prefer the meaning that best promotes the spirit and purposes of the Constitution. See Tinyefuza v Attorney-General Const Pet No 1 of 1996 (1997 UGCC 3) and Re Hyundai Motor Distributors (PTY) & others v Social No & others (2000) ZACC 12 2001(1) SA 545.*** ***The principles of interpretation require that the words and expressions used in a statute be interpreted according to their ordinary literal meaning in the statement and in the light of their context. See Adrian Kamotho Njenga v Kenya School of Law (2017) eKLR and Law Society of Kenya v Kenya Revenue Authority & another (2017) eKLR.”*** ***112. When the constitutionality of a statute or provision of a statute is called to question, the court is under obligation to employ the constitutional mirror laying the impugned legislation or provision alongside the article(s) of the constitution and determine whether it meets the constitutional test. The court must also check both the purpose and effect of the Section or the Act, and see whether any of the two could lead to the provision being declared unconstitutional. That is to say, the purpose of a provision or effect thereof, may lead to unconstitutionality of the statute or provision.*** 1. Further, there is the presumption of constitutionality of a statute, which was elaborated by the Supreme Court of India in **Hamdard Dawakhana vs. Union of India Air (1960) AIR 554, 1960 SCR (2)671** as follows: ***“In examining the Constitutionality of a statute, it must be assumed that the legislature understands and appreciates the need of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the Constitutionality of an enactment.”*** 1. Furthermore, in **Olum and another vs Attorney General [2002] 2 EA**, it was noted that: ***“To determine the constitutionality of a section of a statute or Act of Parliament, the court has to consider the purpose and effect of the impugned statute or section thereof. If its purpose does not infringe a right guaranteed by the constitution, the court has to go further and examine the effect of the implementation. If either its purpose or the effect of its implementation infringes a right guaranteed by the constitution, the impugned statute or section thereof shall be declared unconstitutional…”*** 1. Likewise, in **Isaac Robert Murambi v Attorney General & 3 others [2017] KEHC 3034 (KLR)** the Court expressed as follows: ***“…the Court must also be guided by the cardinal rule that a statute should be construed according to the intention expressed in the statute itself-see Halsbury’s Laws of England, 4th ed. Vol. 44(1) para 1372b. The Court of Appeal confirmed this principle when it stated in County Government of Nyeri & another v Cecilia Wangechi Ndungu [2015] eKLR that:*** ***“The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole in its context…”*** ***In stating that particular principle of interpretation the Court cited the Australian decision in the case of Amalgamated Society of Engineers v Adelaide Steamship Company Ltd. & others (1920) 28 CLR 129 where it was held that:*** ***“The fundamental rule of interpretation, to which all others are subordinate, is that statute is to be expounded according to the intent of parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning….”*** 1. The Petitioners argued that Regulation 34 (2) limits their voting rights thereby infringing on their protected rights under Article 38. **Article 38** (3) of the Constitution guarantees the right to registration as a voter and the right to vote in the following terms: **38 (3) Every citizen has the right, without unreasonable restrictions-** 1. *To be registered as a voter* 2. *To vote by secret ballot in any election or referendum, and* 3. *To be a candidate for public office, or office within a political party of which a citizen is a member and, if elected, to hold office.* 4. In relation to registration of Kenyans outside Kenya as voters, this is addressed in Article 82 (1) under Legislation on elections as follows: 5. **(1) Parliament shall enact legislation to provide for-** *e) the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.* 1. The Petitioners thus impugn *Regulation 34(2) of the Elections (Registration of Voters) Regulations, 2012* for introducing what they consider to be an arbitrary, unreasonable and unjustifiable limitation on the right to vote of Kenyans in diaspora by restricting them to places with the Kenyan Embassies, High Commissions and Consulates. 2. In interpreting the Constitution, this Court is obligated under Article 259 to inter alia interpret it in a manner that will promote its purposes, values and principles, meaning that the Court must consider not only the purpose but also the effect of an impugned provision, in the instant case, the Petitioners argue that that the effect of the application of the Regulation 34 (2) has been to limit the rights guaranteed under Article 38 (3) (a) & (2) in relation to Kenyans residing abroad hence is unconstitutional. 3. As a starting point, it is important to note the right of Kenyans residing outside the country to be registered as voters, and facilitation to full realization of the right to vote, is constitutionally stated as ‘**progressive registration’** and ‘**progressive realization of the right to vote’** under **Article 82 (1) (e)** that has been cited in the foregoing. 4. The word ‘***progressive***’ as used in the Constitution received judicial interpretation by the Supreme Court **In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinions Application 2 of 2012) [2012] KESC 5 (KLR)** as follows: “***Progressive realization”*** *connotes a phased-out attainment of an identified goal - human rights goal which by its very nature, cannot be achieved on its own,* ***unless first, a certain set of supportive measures are taken by the State.******The exact shape of such measures will vary, depending on the nature of the right in question****, as well as the prevailing social, economic, cultural and political environment.* ***Such supportive measures may involve legislative, policy or programme initiatives*** *including affirmative action. (****Emphasis added)*** 1. Essentially therefore, it means that the right is not enforceable instantly but gradually. This approach was borne out of the realization that several factors would have to come into play in actualizing Article 38 in relation to Kenyans residing out of the country. However, whatever the limitations, they have to comply with Article 24 (1) of the Constitution in the sense that they are reasonable, proportionate, and justifiable based on human dignity, equality, and freedom. The question thus becomes, do the restrictions complained of under Regulation 34 (2) of Elections (Registration of voters) Regulations, 2012 in regard to registration as voters and voting by Kenyans residing outside the Country meet the constitutional threshold envisaged under Article 24 (1) of the Constitution or are they unjustifiable, arbitrary and unconstitutional? 2. It is not disputed that the registration and facilitation to ensure voting by Kenyans living abroad is a constitutional obligation placed on the Respondents. However, in actualizing this provision, practical and legitimate concerns cannot be overlooked. Factors such as *financial and logistical implication of the activity on public resources employed in carrying out the function, if the prevailing political and security climate in the host countries is appropriate to accommodate kenya’s political process in the territory, sufficiency of the infrastructure to safeguard the integrity, transparency and credibility of the electoral process* are some of the matters that cannot be ignored. 3. The formulation of *Regulation 34(2) of the Elections (Registration of Voters) Regulations* that defines the scope of registering Kenyans as voters and allowing voting to take place in Countries that Kenya has Embassies, High Commission and Consular Offices epitomizes a milestone geared towards the phased realization or actualization of their rights to participate in Kenya’s democratic processes despite being outside Kenya as envisaged in Article 82 (1) (e) of the Constitution hence this legislative intervention marks the beginning of a journey, not its end. It enables diaspora voters to register and vote albeit with the limitation that are in the opinion of this Court reasonable and justifiable in a democratic society based on human dignity, equality and freedom because the State cannot be oblivious of expenditure of public resources that would be employed in carrying out such an exercise in different worldwide jurisdictions or the need to respect the territorial integrity of other nations, particularly their readiness to accommodate Kenya’s political processes in their territories or ignore the need to ensure that the integrity and transparency of such electoral process even when done outside of its borders. These limitations thus meet the threshold of Article 24 (1) of the Constitution. Regulation 34 (2) of the Elections (Registration of Voters) Regulations 2012 is therefore work in progress as opposed to constitutional impediment. It constitutes an essential stepping stone towards the realization of the overall constitutional goal. Declaring regulation 34 (2) of the Elections (Registration of voters) Regulation, 2012 unconstitutional can only serve to stifle the momentum that this provision has created so far and would be tantamount to destroying the foundation upon which further future progress is to be built on. It is thus my considered view that both the purpose and the effect of the impugned provision is consistent with the Constitutional goal that is set out in Article 82 (1) (e) of the Constitution and not anti-thetical to it. It aligns with the constitutional purposes, values and principles. 4. I thus find this Petition lacks merit and is hereby dismissed. As this is Public Interest litigation, I make no orders as to costs. ***Dated, signed and delivered virtually at Nairobi this 11th day of June, 2026*** **………………………………………….** **L N MUGAMBI** **JUDGE**