Kenya's ambassador-nominee to South Korea, Ms Mwende Mwinzi, is suing to have Parliament stopped from forcing her to renounce her US citizenship before she takes up the job.
In a case that could determine how Kenyans in the diaspora can get government jobs in future, Ms Mwinzi, whom the National Assembly approved for the job but said she must first give up her US citizenship, says it would be a violation of her rights to be forced out of something she didn't choose.
The key question in the case filed last evening at the Constitutional and Human Rights Division of the High Court is whether persons born of Kenyan parents abroad should relinquish their foreign nationality in order to be allowed to serve in the government.
"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 argues 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'," she argues, referring to the law that exempts people who cannot opt out of dual nationality such as those who acquired it by birth.
Foreign Affairs Cabinet Secretary Monica Juma and Attorney-General Kihara Kariuki have been listed as respondents.
The case could also be key in determining whether Parliament is supposed to stop at approving or disapproving candidates, or if it can include conditional approvals for nominees. Ms Mwinzi's lawyers, Tom Ojienda & Associates, argue that the National Assembly has no power to add conditions to approved candidates
"Nothing would have been simpler than disapproving her nomination from the onset but they did not. The National Assembly deemed her qualified and went ahead to confirm this by swearing her in just like the other nominees.
"The National Assembly should therefore be stopped from putting a condition on the executive and the President's role of picking its nominee. The condition that the petitioner is to be appointed only on condition that she renounces her dual citizenship is unconstitutional, illegal and void," they argue.
President Uhuru Kenyatta nominated Ms Mwinzi on May 2 to be Kenya's Ambassador to South Korea.
She was to replace Mohamed Abdi Gello, who had served in Seoul since the Mwai Kibaki days.
Ms Mwinzi was also the replacement for former legal adviser to the President and former Mandera Central MP Abdikadir Mohamed, who declined the nomination last year for personal reasons. Now the National Assembly has told Ms Mwinzi, born in Milwaukee, Wisconsin, in 1971, that she can only report to duty once it is confirmed that she has relinquished her US citizenship.
In the court papers, she argues that every agency under the law cleared her to be ambassador, adding that Parliament's demand is an illegality. "If Parliament intended that high commissioners or ambassadors should be regarded as State officers, nothing would be simpler than passing legislation to that effect under Article 260 of the Constitution," she said, referring to the part of the Constitution that lists who State officers are. It excludes judges, commissioners of constitutional commissions and diplomats.
Ms Mwinzi's parents were teachers, who taught both in Kenya and the US. Her mother, Mary Christine Geil, was American.
She met her Kenyan husband Maluki Mwinzi Kaluva (now deceased) in the US. They later relocated to Kenya, where they worked. She has two siblings who were born in Kenya but are also legally American citizens because their mother is an American.
Ms Mwinzi says she first attained her US citizenship and worked in the US before resigning in 2005 to concentrate on humanitarian work at her Twana Twitu Children's Home in Kitui.
She later applied for a Kenyan birth certificate, which was granted certifying that she is a Kenyan born abroad.
Her national ID was issued on February 24, 2017, allowing her to contest the Mwingi West parliamentary seat. She was unsuccessful.
The National Assembly has cited Section 31(2) of the Leadership and Integrity Act, which asks State officers with dual nationality to first renounce their foreign passports before taking the jobs.
Ms Mwinzi's lawyers argue that this insistence is illegal given that her position is not a State office and that she cannot be forced to abandon citizenship acquired by birth.
"The petitioner has met the entire requirement necessary for her to be appointed as ambassador and even the committee confirmed her qualification to the position and yet they subject her to a condition unfounded in law," they say.
"Additionally, there are State officers such as judges and even MPs who are serving as such despite being holders of dual citizenship, it is therefore unfair to single out the petitioner herein and treat her unfairly in blatant violation of her constitutional right to equality and freedom from discrimination."