The High Court has upheld rules limiting overseas voting to countries with Kenyan diplomatic missions, rejecting a challenge by diaspora voters demanding expanded inclusion in the country's electoral process.
In a ruling that could shape preparations for the 2027 election, the court rejected a challenge by Kenyans living overseas who argued that the restrictions unfairly disenfranchise a diaspora population estimated at four million people, whose remittances reached Sh931.8 billion last year.
They complained that they send home record remittances and support the local economy but remain effectively shut out of the country's political electoral process.
The petition targeted Regulation 34(2) of the Elections (Registration of Voters) Regulations, which allows voter registration and elections abroad only in countries where Kenya maintains an embassy, high commission or consulate.
The petitioners argued that the rule effectively locks out millions of Kenyans spread across more than 100 countries, forcing many to travel long distances at significant cost to register or vote.
But the court dismissed the case, finding that the Constitution envisages the gradual expansion of diaspora voting and that the existing framework represents a lawful step towards that goal.
"The right is not enforceable instantly but gradually," the judge said, finding that the Constitution contemplates a phased expansion of diaspora voting rights, taking into account logistical, financial and administrative realities.
The court said the Constitution expressly provides for the "progressive registration" of Kenyans living abroad and the "progressive realization" of their right to vote.
The petitioners had sought a declaration that the regulation was unconstitutional and an order compelling the Independent Electoral and Boundaries Commission (IEBC) to establish additional registration and polling centres beyond diplomatic missions.
They argued that the current system conditions voting rights on the location of diplomatic offices rather than voter eligibility and electoral integrity.
According to court filings, Kenyans in large countries such as the United States, Canada and Australia can be required to travel thousands of kilometres to reach designated voting centres.
The petitioners told the court that the restriction created indirect discrimination by favouring those living near diplomatic missions while disadvantaging others residing far away.
They also pointed to countries such as Rwanda and the Philippines, which have adopted broader overseas voting arrangements, arguing that Kenya had failed to keep pace with international practice.
The petitioners contended that the pace of electoral inclusion has not matched the diaspora's growing economic influence.
The IEBC defended the regulation, saying diaspora voting presents significant logistical, administrative and financial challenges.
The commission told the court that voter registration abroad has expanded steadily over the years. Registered diaspora voters increased from 4,223 in 2017 to 10,444 in 2022 as voting was extended to more countries.
IEBC update on voter registration
The commission said voting was conducted in four countries in 2017 and expanded to 12 countries during the 2022 General Election, including the United States, Canada, the United Kingdom, Germany, Qatar and the United Arab Emirates.
It argued that further expansion depends on budget allocations, operational capacity, political conditions in host countries and the existence of diplomatic infrastructure.
The court accepted those arguments. "The State cannot be oblivious of expenditure of public resources that would be employed in carrying out such an exercise in different worldwide jurisdictions," the court said.
It also cited the need to respect the territorial integrity of other nations and ensure the integrity and transparency of elections conducted outside Kenya.
"It constitutes an essential stepping stone towards the realization of the overall constitutional goal," the judge said.
The court further warned that striking down the regulation could undermine the framework that has enabled diaspora voting to expand since it was introduced.
"Declaring Regulation 34(2) unconstitutional can only serve to stifle the momentum that this provision has created so far," the court said.
Diaspora remittances hit a record Sh931.8 billion in 2025,the up from Sh637.3 billion in 2024, making overseas Kenyans one of the country's largest sources of foreign exchange.
