The Court of Appeal has been asked to suspend a High Court judgment upholding a rule requiring Kenyans living outside the East African Community (EAC) to use passports to register as voters ahead of the 2027 election.
A Kenyan living in the United Kingdom, Eliud Karanja Matindi, wants the Nairobi appellate court to suspend the judgment pending determination of his appeal, which is expected to resolve whether Kenyans outside the EAC can register as voters using national identity cards.
The judgment at the centre of the fresh legal dispute allowed Kenyans living in EAC countries to register using either a passport or national identity card, while those outside the bloc must produce a valid Kenyan passport.
The case began in 2022 when Senator Okiya Omtatah challenged Regulation 37 of the Elections (Registration of Voters) Regulations, 2012. The rule says a Kenyan living outside the country must produce a valid Kenyan passport to register, while citizens in EAC countries may present an identity card.
Justice Lawrence Mugambi dismissed Mr Omtatah’s petition on May 22, 2025, holding that the regulation was constitutional. The judge also found that the question had been considered in an earlier Kenya Diaspora Alliance case.
Mr Matindi, an interested party in the case, has asked the appellate court to stay the judgment pending his appeal. His submissions filed October 7, 2026 say the appeal was lodged in July 2025.
“In the absence of the stay sought in this application, Kenyan citizens residing outside Kenya (other than within the East African Community) are unable to register as voters using their national identity cards just like any other Kenyan citizens,” he says.
He argues that the High Court wrongly upheld a distinction between Kenyans living within the EAC and those elsewhere, despite an earlier court order requiring the Independent Electoral and Boundaries Commission (IEBC) to register eligible diaspora citizens using original national identity cards.
Mr Matindi says IEBC complied with that order and registered citizens using their original identity cards “without any difficulties”.
He also argues that Regulation 37 had expired and therefore no longer had the force of law by the time the High Court delivered its judgment. His argument is based on Section 21 of the Statutory Instruments Act, which at the time provided for statutory instruments to lapse ten years after they were made unless they were repealed earlier or their operation was extended.
Mr Matindi argues that the regulation, which was made in 2012, was therefore affected by the expiry provisions. He further relies on Legal Notices 217 and 218 of 2022, which dealt with the extension of the operation of statutory instruments, to argue that Regulation 37 was not lawfully kept in force beyond the applicable period.
He says the High Court should therefore have found that the regulation was no longer legally enforceable when it upheld the passport requirement.
The High Court, however, dismissed the petition, finding that regulation was not an unreasonable limitation of the right to vote.
An IEBC clerk keys in a voter’s ID details during a past biometric voter registration exercise. IEBC is targeting 6.3 million new voters ahead of the 2027 General Election.
Photo credit: File | Nation
Mr Matindi’s application comes as continuous voter registration for the August 10, 2027 General Election is under way. He says Kenyans outside the EAC who cannot use national identity cards face losing the opportunity to register if the suspension is not granted.
“In the event the appeal succeeds, those citizens would have lost the opportunity to register as voters and vote in the 2027 elections,” his submissions state. “This denial of their right to vote under Article 38 would not be remedied in any way.”
The earlier Kenya Diaspora Alliance case, determined in 2017, held that the regulation provided a reasonable limitation on the right to vote. Justice Mugambi relied on that decision, noting that it had not been appealed and that a High Court of equal jurisdiction could not reopen the issue.
The 2017 case upheld the passport requirement after finding that citizens lawfully living abroad would ordinarily be expected to possess valid Kenyan passports.
IEBC defended the rule in the 2022 proceedings. The commission told the court that Article 88(4)(a) empowered it to prescribe how voter registration should be conducted and that Regulation 37 set the procedure for Kenyans living abroad.
The commission also argued that Section 5(3) of the Elections Act allowed proof of age through an identity card or passport but did not prescribe which document diaspora voters must use.
Mr Matindi’s challenge is linked to a 2022 order that temporarily required IEBC to allow eligible Kenyans in 12 countries to register using passports or original identity cards then.
Independent Electoral and Boundaries Commission officials register a youth as a voter at their Ainabkoi Sub-County offices in Eldoret City, Uasin Gishu County, on April 28, 2026.
Photo credit: Jared Nyataya | Nation
The order covered 15 days and followed a challenge by Omtatah over restrictions affecting diaspora registration.
The legal dispute sits within a wider effort to expand participation by Kenyans living abroad in the local political decisions. The Supreme Court has previously directed IEBC to pursue progressive registration of diaspora voters.
A 2025 Senate order paper said the Ministry of Foreign and Diaspora Affairs estimated more than three million Kenyans lived abroad. It noted that IEBC had 27 diaspora polling centres in 12 countries for the 2022 election.
Mr Matindi says his appeal raises genuine legal questions and could be rendered ineffective if affected citizens lose registration opportunities.
“The right to vote, enshrined in Article 38 of the Constitution, is a fundamental human right,” says the submissions.
