Issue No. (a). Whether this Court has jurisdiction to entertain the instant petition
36.This issue was raised by the respondents who argued that the petition raises issues in the form of an advisory opinion. Further that the matter had been overtaken by events owing to the consent entered into by the parties on November 26, 2019and the impugned newspaper advertisement published in 2019 rendering the matter an academic exercise. Likewise the respondents argued that the controversy as framed was not a policy issue as framed by the petitioner since the government had not given a definitive position on the eligibility of Kenyan citizens with dual citizenship joining the Kenya Defence Forces.
37.The petitioner opposed this argument stating that the other reliefs sought were still alive and needed this Court’s determination. Evidently these issues challenge the justiciability of the matter before this Court which must be determined before answering the questions raised in the petition. It is clear that the petitioner in the interest of the public approached this Court to defend the right of Kenyan citizens with dual citizenship owing to the alleged breach of their constitutional right to enlist in the Kenya Defence Forces.
38.It is has been held that a constitutional right compared to other rights cannot be overtaken by events as argued by the respondents. This was seen in the case of Kitale Shuttle Ltd & 5 others v County Government of Trans Nzoia  eKLR where it was held that:
39.Palpably, this Court under Article 165 (3)(d) of the Constitution is vested with the requisite jurisdiction to entertain constitutional questions such as those raised by the petitioner. While prayer (ii) in the petition was determined it is certain that the other constitutional questions have not been determined. What becomes the main issue for determination at this juncture is whether the circumstances of this case invoke or deter this Court from assuming this jurisdiction owing to the doctrine of justiciability.
40.This concept is described by the Legal Information Institute Wex dictionary as follows:
41.The Court in the case of Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others  eKLR while expounding on this issue opined as follows:
42.A three Judge bench in the case of Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020) eKLR discussed this issue. Also see William Odhiambo Ramogi & 2 others v. Attorney General & 6 others  eKLR:
43.In Ndora Stephen -v- Minister for Education & 2 Others, Nairobi High Court Petition No. 464 of 2012, Mumbi Ngugi, J. (as then was) correctly observed that:
44.A consideration of the matters raised in this petition reveals that the main issue in contention is the 1st respondent’s recruitment process which precludes Kenyan citizens with dual citizenship from making applications to join the Kenya Deference Forces. The Constitution’s objective on this issue is unmistakably determined under Article 78 as follows:(1)A person is not eligible for election or appointment to a State office unless the person is a citizen of Kenya.(2)A State officer or a member of the defence forces shall not hold dual citizenship.(3)Clauses (1) and (2) do not apply to--(a)judges and members of commissions; or(b)any person who has been made a citizen of another country by operation of that country’s law, without ability to opt out.
45.The petitioner seeks to have this Court declare that the 1st respondent’s exclusion of dual citizens is unconstitutional and thus issue a permanent injunction preventing such an action in the future. The issue as can be discerned revolves around this Country’s national security which is a policy issue best determined by Parliament.
46.It is my considered view that the petition invokes the political question doctrine. I say so because the issue raised will require this court to delve into the government’s political arena of national security which is not the province of the courts. Moreover, the government is best placed to make such policy determinations on the grant or lack thereof of such a privilege on the dual citizens based on the needs of national security in the interest of the whole Republic.
47.I find it not prudent for this Court to assume such jurisdiction and render a prospective order without being informed of all the relevant matters at stake in the future. Guided by the principles of law fashioned in the cited cases, I find that the nature of the instant petition presents a situation where the political question doctrine is alive and in effect affecting this Court’s jurisdiction to entertain the petition. Taking this into consideration, I find no justifiable ground for this Court to proceed to make a determination on this petition based on its merits.
48.The upshot of the foregoing and for the reasons set out above. I find the petition dated November 19, 2019 to be without legal basis and I dismiss it in its entirety. There shall be no order as to costs.Orders accordingly.