[1] The petitioner, Julius Ogogoh, described himself in his Petition dated 17 th January 2024 as a law abiding citizen, a public-spirited individual, a human rights defender and a strong believer in the rule of law. He is the Executive Director of the Commission for Human Rights and Justice; a body created for the purpose of promoting democratic governance, among other objectives. He filed the Petition pursuant to various provisions of the Constitution, which I will revert to in due course.
[2] In terms of locus standi , the petitioner relied on Article 3 of the Constitution and Rule 4(2)(iii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which permit a person acting in the public interest to institute proceedings for the protection of rights or enforcement of the Constitution.
[3] A brief summary of the factual basis of the Petition is that, the petitioner had reasons to believe that the 1 st interested party is a Somali national and therefore cannot enjoy citizenship by birth in terms of Article 14(4) of the Constitution because he does not meet the qualifications for citizenship by birth as provided for in Article 14(1) and (2) of the Constitution . The petitioner further asserted that the 1 st interested party acquired Kenyan citizenship by fraud, false representation and concealment of material facts.
[4] It was therefore the contention of the petitioner that the 1 st interested party is not entitled to the rights, privileges and benefits of citizenship as contemplated by Article 12(1) of the Constitution . The petitioner averred that, whereas the respondents had been investigating the 1 st interested party for, inter alia, obtaining Kenyan identification documents through fraud and false pretences; and whereas the Court in Nairobi High Court Petition No. E413 of 2021: Osman Ahmed Kahia v the Inspector General of Police & 5 others; the Chief Licensing Officer, Firearm Licensing Board and another (Interested Parties) gave the respondents the green light to investigate the citizenship of the 1 st interested party and take appropriate action so long as they kept within the confines of the Constitution and the law, the respondents, in dereliction of their duty, have taken no action to have the 1 st interested party’s citizenship status investigated.
[5] The petitioner further averred that, alarmed by the respondents’ inaction, he wrote a letter dated 15 th December 2023 seeking to know from the 3 rd respondent the steps taken and the result of the investigations on the citizenship status of the 1 st interested party to no avail. Accordingly, the petitioner was aggrieved that the officers of the 1 st , 2 nd and 3 rd respondents, though well aware that the 1 st interested party is a foreign national living in Kenya illegally and who obtained his Kenyan citizenship fraudulently and illegally, have taken no action to have his citizenship revoked. He also felt aggrieved that, using his illegally acquired citizenship, the 1 st interested party has surreptitiously registered the 2 nd and 3 rd interested parties, which he has used to illegally acquire parcels of land in Mombasa, namely:
[a] Title No. 5153/VI/MN (CR. 6863)
[b] Title No. 5141/VI/MN (CR. 68273)
[c] Title No. 5154/VI/MN (CR. 68639)
[d] Plot No. 5169/VI/MN
[e] Plot No. 5178/VI/MN
[f] Plot No. 5176/VI/MN (CR. 31537)
[6] The petitioner relied on Articles 1, 2, 3, 10, 12, 14, 15, 17, 22, 23, 48, 60, 61, 62 67, 69, 159, 162, 165, 258 and 260 of the Constitution and set out the manner of alleged violation and/or threatened violation as appropriate. He also quoted the provisions of the Kenya Citizenship and Immigration Act , Chapter 172 of the Laws of Kenya that are applicable to his Petition, notably the provisions relating to citizenship by birth; as well as the relevant provisions of the Registration of Persons Act, Chapter 107 of the Laws of Kenya.
[7] It was therefore the averment of the petitioner that, failure by the respondents to investigate the illegal and fraudulent acquisition of the 1 st interested party’s citizenship with a view of revocation is a grave violation of the Constitution and amounts to a derogation by the respondents of the national values and principles of governance as set out in Article 10 of the Constitution. Accordingly, the petitioner approached the Court for the following reliefs:
[a] A declaration that failure by the respondents to investigate the illegal and fraudulent acquisition of Kenyan citizenship by the 1 st interested party and/or investigate the citizenship status of the 1 st interested party is unconstitutional and amounts to dereliction of duty on the part of the respondents.
[b] A declaration that the 3 rd and 4 th respondents abused their office and acted illegally in failing to investigate the citizenship status and revoke the citizenship of the 1 st interested party.
[c] A declaration that that the acts of omission and commission by 1 st , 2 nd and 3 rd respondents amounted to violations of the Constitution and the law, and in particular the Kenya Citizenship and Immigration Act , and the Registration of Persons Act.
[d] A declaration that the 1 st interested party acquired his Kenya citizenship by fraud, false representation or concealment of material facts.
[e] A declaration that the 1 st interested party acquired his Kenyan national identity card and passport through fraud, false pretences and concealment of material facts.
[f] A declaration that the acquisition of all those parcels of land comprising the following Land Reference Numbers:
[a] Title No. 5153/VI/MN (CR. 6863)
[b] Title No. 5141/VI/MN (CR. 68273)
[c] Title No. 5154/VI/MN (CR. 68639)
[d] Plot No. 5169/VI/MN
[e] Plot No. 5178/VI/MN
[f] Plot No. 5176/VI/MN (CR. 31537)
situated in Mombasa within the County of Mombasa, by the 2 nd and 3 rd interested parties subsequent and pursuant to the fraudulent and illegal acquisition of the Kenyan citizenship by the 1 st interested party, is null and void.
[g] An order directing that the acquisition of all those parcels of land comprising the following Land Reference Numbers:
[i] Title No. 5153/VI/MN (CR. 6863)
[ii] Title No. 5141/VI/MN (CR. 68273)
[iii] Title No. 5154/VI/MN (CR. 68639)
[iv] Plot No. 5169/VI/MN
[v] Plot No. 5178/VI/MN
[vi] Plot No. 5176/VI/MN (CR. 31537)
situated in Mombasa within the County of Mombasa, by the 2 nd and 3 rd interested parties subsequent and pursuant to the fraudulent and illegal acquisition of the Kenyan citizenship by the 1 st interested party, be revoked.
[h] An order of judicial review in the nature of Mandamus to compel the 1 st , 2 nd , 3 rd and 5 th respondents to investigate the citizenship status of the 1 st interested party and revoke the citizenship of the 1 st interested party.
[i] An order of judicial review in the nature of mandamus to compel the 2 nd and 3 rd respondents to confiscate and revoke the Kenyan national identity card and passport issued to the 1 st interested party.
[j] Any other or further order or remedy that the Court shall deem fit to grant.
[k] An order that the costs of the Petition be borne by the respondents.
[8] The averments set out herein above were supported by and reiterated in the Supporting Affidavit sworn by the petitioner on 17 th January 2024 and the documents annexed thereto. The documents include the Judgment delivered in Nairobi High Court Petition No. 413 of 2021 among other documents along with the pleadings and documents filed in that suit.
[9] The Petition was resisted by the respondents as well as the interested parties. The 1 st , 2 nd , 3 rd and 5 th respondents filed a Replying Affidavit sworn by Ronnie Akedi , an Assistant Director of Immigration Services. They acknowledged their awareness of their respective constitutional mandates. They also confirmed that the 1 st interested party has been and remains the subject of an active investigation by a multi-agency team regarding his suspected illegal and fraudulent acquisition of Kenyan citizenship.
[10] Accordingly, the 1 st , 2 nd , 3 rd and 5 th respondents contended that it is improper for the petitioner to assume that no investigations are being conducted; and added that it would be premature for the Court to revoke and confiscate the identity card and passport of the 1 st interested party. They proposed that they be given time to conclude their investigations to their logical conclusion and take appropriate action as may be necessary based on the outcome of those investigations.
[11] The 4 th respondent filed Grounds of Opposition in response to the Petition. The interested parties contended as follows in its Grounds of Opposition dated 15 th July 2024:
[a] The Petition is devoid of merit, is frivolous, a gross abuse of the court process and has been filed to satiate personal interests.
[b] The allegations in the Petition are being investigated by the respondents as instructed by the Honorable Justice Mrima vide his judgment dated 23 rd February 2023 in Nairobi High Court Petition No. E413 of 2021: Osman Ahmed Kahia v The Inspector General of Police & 5 others; the Chief Licensing Officer, Firearms Licensing Board & another (Interested Parties).
[c] Since the investigations are underway, the Court ought to grant the respondents time to exercise their constitutional mandate and decide whether or not to charge the 1 st interested party based on their findings.
[d] There is no constitutional timetable provided under Article 17 of the Constitution or in the Kenyan Citizenship and Immigration Act under which investigations into citizenship related matters ought to be undertaken.
[e] It is the prerogative of the respondents as the investigative agencies to either charge the 1 st interested parties or not.
[f] The petitioner herein is hoodwinking the Court to pre-empt the outcome of the ongoing investigations and proceed to give orders stripping the 1 st interested party of his citizenship acquired through birth.
[g] It would amount to judicial overreach for the Court to compel the respondents to take action against the 1 st interested party before completion of thorough investigations.
[12] The Petition was canvassed by way of written submissions pursuant to the directions given herein on 16 th May 2024. The petitioner reiterated the factual background of the Petition as set out in his Petition and Supporting Affidavit. It submitted that it is common ground that the respondents have been investigating the 1 st interested party for, inter alia, obtaining Kenyan citizenship and identification documents by false pretences. The petitioner relied heavily on the decision of the High Court (Hon. Mrima, J.) in Nairobi High Court Constitutional Petition No. E413 of 2021: Osman Ahmet Kahia v The Inspector General of Police & 5 others (hereinafter, Petition No. 413 of 2021) in which the court gave the respondents the greenlight to investigate the citizenship of the 1 st interested party within the confines of the Constitution and the applicable law.
[13] The petitioner quoted extensively from the Affidavit sworn and filed in Petition No. E413 of 2021 by Jimmy Nyikuli , a Principal Immigration Officer in the Ministry of Interior and Coordination of National Government and the judgment of the Court in that Petition. In particular, the petitioner relied on the order that the respondents were under obligation to either proceed with their investigation against the 1 st interested party or drop the same.
[14] The petitioner urged the Court to note that, in this Petition, the 1 st , 2 nd , 3 rd and 5 th respondents have conceded, at paragraphs 4, 5 and 6 of their joint Replying Affidavit, that the 1 st interested party was being investigated for, inter alia, obtaining Kenyan identity documents through fraud and false pretences. On that account the petitioner submitted that, in those circumstances, he had the constitutional obligation under Article 3(1) of the Constitution to pursue the matter with the respondents. So he wrote a letter dated 15 th December 2023, seeking to know what steps had been taken towards the investigation of the citizenship of the 1 st interested party and the outcome of such investigations, if any, but his letter elicited no weight.
[15] In the premises, the petitioner proposed the following two issues for determination:
[a] Whether or not the respondents have failed, declined, neglected and/or refused to fulfil their constitutional obligations; and
[b] Whether the Court can intrude and point out the transgressions by the respondents;
[16] The petitioner relied on various authorities in support of his submissions, including Trusted Society for Human Rights Alliance & 2 others v the Attorney General & 2 others [2012] eKLR to augment his arguments, especially the submissions on the supremacy of the Constitution and the obligation of every state organ to perform their respective functions. The petitioner urged the viewpoint that, in case of dereliction of duty by a state organ, the Court as the ultimate guardian of the Constitution has the jurisdiction to intervene and point out the transgressions.
[17] The petitioner urged the Court to note that the respondents had offered no proof at all of any investigations done after the decision in Petition No. E413 of 2021 or the outcome thereof, if any. The Petitioner also made reference to Article 259 of the Constitution and Rule 8 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 on the extensive powers bestowed on the Court to make such orders as may be necessary for the ends of justice.
[18] The 1 st , 2 nd , 3 rd and 5 th respondents relied on their written submissions dated 19 th September 2024. They reiterated their averments in their Replying Affidavit and urged the Court to find that the Petition is premature.
[19] The 4 th respondent filed written submissions dated 4 th September 2024. It pointed out that no complaint has been brought to its attention by the petitioner against the interested parties. It was therefore the 4 th respondent’s contention that the reliefs sought by the petitioner against it are all premature. Counsel for the 4 th respondent also pointed out that the Commission was never a party to Nairobi High Court Petition No. E413 of 2021 in which the orders to investigate the 1 st interested party was only made aware of the allegations against the 1 st interested party upon being served with a copy of this Petition.
[20] The 4 th respondent further submitted that the petitioner cannot use the Court as the first port of call without approaching and using the available avenues exhaustively to address any allegations of corruption against the interested parties. The 4 th respondent relied on Francis Curukia v Peter Gatirau Munya & 2 others [2017] and Patrick Michuki v Independent Electoral and Boundaries Commission (IEBC) & 4 others [2016] eKLR to set out its investigative procedures and underscore the premature nature of this Petition.
[21] Further, it was the submission of the 4 th respondent that, in any event, the mandate to revoke and/or determine a person’s citizenship lies with the State Department of Immigration in the Ministry of Interior and Coordination of National Government; and therefore the joinder of the 4 th respondent was unnecessary. The 4 th respondent relied on Anarita Karimi Njeru v Republic [1976-80] KLR 1272 to support its argument that the petitioner had failed to set out with precision the alleged violations committed by it. Accordingly, the 4 th respondent prayed for the dismissal of the Petition with costs.
[22] On their part, the interested parties relied on their written submissions dated 31 st January 2025. They surmised that the Petition is premised on the assumption that the 1 st interested party is a Somali national who cannot enjoy Kenyan citizenship in terms of Article 14(4) of the Constitution. They reiterated their Grounds of Opposition and maintained their assertion that the Petition is res judicata, the issues in dispute having been raised and determined with finality in Petition No. E413 of 2021.
[23] According to the interested parties, the petitioner is intent on pre-empted the outcome of the investigations by the 1 st , 2 nd and 3 rd respondents by seeking orders to compel them to conduct investigations. In the same vein, the interested parties submitted that it is improper for the petitioner to invite this Court to wade into the allegations of illegal acquisition of the pieces of land set out in the Petition, yet that aspect is not within the jurisdiction of this Court by dint of Article 162 of the Constitution as read with Section 13 of the Environment and Land Court Act. They also pointed out that the said properties are the subject of a pending case, being ELC/273/2017: Kahia Transporters Ltd & another v Chunku Ltd & another.
[24] In the light of the following, the interested parties proposed the following issues for determination and fashioned their submissions accordingly:
[a] Whether the Petition is res judicata;
[b] Whether a substantive order can be sought by or against an interested party;
[c] Whether legislative processes have been followed in relation to substratum of this Petition;
[d] Whether the Court has jurisdiction to wade into the issue of alleged illegal acquisition of land;
[e] Whether the instant Petition was motivated by any ulterior motive.
[25] From the foregoing, it is common ground that the 1 st interested party has been undergoing investigations to determine whether he lawfully acquired his Kenyan citizenship. He was in fact arrested by the 1 st , 2 nd and 3 rd respondents; which arrest precipitating the filing of Nairobi High Court Petition No. 413 of 2021 . The parties were duly heard and the Court pronounced itself on various issues in its judgment dated 23 rd February 2023. Although the 1 st interested party, as the petitioner in Petition No. E413 of 2021, obtained some of the orders prayed for, the Court made it clear at paragraph 107 of its judgment that:
“…there is no doubt that the Respondents have collective powers to investigate, interrogate, arrest and even deport persons who are in contravention of the Constitution and the law. In the instant case, if investigations reveal that the Petitioner acted contrary to the law in obtaining the impugned documents then, as long as the Respondents stay within the Constitution and the law, they are empowered to not only arrest and arraign the Petitioner before court, but to also deport him accordingly.”
[26] Additionally, the Court observed as follows at paragraph 123 of the judgment aforementioned:
“As to whether the Petitioner was unlawfully arrested, this Court finds in the negative. The Constitution and the law accord the Respondents powers to detect and investigate offences. What the Respondents did could be summed up as carrying out investigations on the Petitioner. The investigations are lawful and if they are yet to be completed, the Respondents are under an obligation to either proceed on or drop the same.”
[27] The petitioner herein relied heavily on the said judgment; and in particular Paragraph 123 aforementioned to anchor his Petition. In his contention, the respondents have declined to take action as ordered by the Court in Petition No. E413 of 2021. Accordingly, before engaging in a merit consideration of the Petition, the following issues arise:
[a] Whether the doctrine of exhaustion is applicable to the facts of this Petition.
[b] Whether the Petition was filed in disregard of the doctrine of avoidance.
A. On the Doctrine of Exhaustion:
[28] As has been pointed out herein above, the petitioner relied heavily on the judgment delivered in Petition No. E413 of 2021. This is manifest at paragraph 25, for instance, where he deposed that:
“…whereas Respondents had been investigating the 1 st interested party for inter alia obtaining Kenyan identification documents through fraud and false pretences and making a false declaration for a passport and for giving false information to a person employed in the public service and whereas the court in Nairobi HC Petition No. E413 of 2021 gave the respondents the green light to investigate the citizenship of the 1 st interested party and take appropriate action so long as they kept within the confines of the Constitution and the law, the Respondents in dereliction of their duty have taken no action to have the 1 st interested party’s citizenship status investigated.
[29] The petitioner proceeded to quote word for word the affidavit sworn by one Jimmy Nyikuli, a Principal Immigration Officer in the Department of Immigration within the Ministry of Interior and Coordination of National Government, as filed in the Nairobi Petition. The petitioner also quoted the provisions of the Constitution as well as the Kenyan Citizenship and Immigration Act and the Registration of Persons Act to demonstrate that there is in place an elaborate procedure for the grant of citizenship and issuance of identity cards and passports by the 1 st , 2 nd and 3 rd respondents. Indeed, it was precisely for failure by the 1 st , 2 nd and 3 rd respondents to comply with those provisions that the 1 st interested party’s Nairobi Petition was allowed.
[30] The question to pose therefore is whether the respondents have completed their investigations, and whether the petitioner has exhausted the alternative dispute resolution procedures provided for under the applicable Immigration laws, This question arises because some of the prayers sought by the petitioner included an order of judicial review in the nature of Mandamus to compel the respondents to investigate the citizenship status of the 1 st interested party and to revoke the citizenship and the identity documents issued to the 1 st interested party.
[31] Article 47 of the Constitution provides that:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.
[32] For purposes of Article 47, Section 9 of the Fair Administrative Action Act stipulates that:
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
[33] Accordingly, in Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal made it clear that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
[34] The principle was reiterated in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, as follows:
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution…”
[35] Having carefully looked at the Petition dated 17 th January 2024 it is my finding that the petitioner approached the Court prematurely, granted the response given by the respondents. While the 1 st , 2 nd 3 rd respondents averred that the investigations are on course and are being handled by a multi-agency team, the 4 th respondent was categorical that no such complaint has been brought to its attention for investigations. I am therefore of the considered view that the Petition was prematurely filed.
B. On the doctrine of Avoidance:
[36] The doctrine of avoidance was well-discussed by the Supreme Court in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR (29 th September 2014) (Judgment) thus:
“[256] The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis . In South Africa, in S v. Mhlungu , 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:
“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
[257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of ( Ashwander v. Tennessee Valley Authority , 297 U.S. 288, 347 (1936)).
[258] From the foundation of principle well developed in the comparative practice, we hold that the 1 st , 2 nd and 3 rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court…”
[37] In the case of K K B v S C M & 5 others (Constitutional Petition E014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling), Hon. Mativo, J. (as he then was) also expressed himself on the doctrine as hereunder:
“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…”
[38] Further in the case of Faraj & 3 others v Police & 2 others (Constitutional Petition 165 of 2020) [2022] KEHC 287 (KLR) (27 April 2022) (Judgment) it was held:
“27. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.
…
29.The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realization that all legislative or common-law remedies are part of the legal system…”
[39] The petitioner set out the provisions of the Kenya Citizenship and Immigration Act that elaborately provide for revocation of citizenship. In particular, Section 21 of the Act states:
( 1) The Cabinet Secretary may, where there is sufficient proof and on recommendation of the Citizenship Advisory Committee, revoke any citizenship acquired by registration on the grounds specified in Article 17
[...truncated]
[2] In terms of locus standi , the petitioner relied on Article 3 of the Constitution and Rule 4(2)(iii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which permit a person acting in the public interest to institute proceedings for the protection of rights or enforcement of the Constitution.
[3] A brief summary of the factual basis of the Petition is that, the petitioner had reasons to believe that the 1 st interested party is a Somali national and therefore cannot enjoy citizenship by birth in terms of Article 14(4) of the Constitution because he does not meet the qualifications for citizenship by birth as provided for in Article 14(1) and (2) of the Constitution . The petitioner further asserted that the 1 st interested party acquired Kenyan citizenship by fraud, false representation and concealment of material facts.
[4] It was therefore the contention of the petitioner that the 1 st interested party is not entitled to the rights, privileges and benefits of citizenship as contemplated by Article 12(1) of the Constitution . The petitioner averred that, whereas the respondents had been investigating the 1 st interested party for, inter alia, obtaining Kenyan identification documents through fraud and false pretences; and whereas the Court in Nairobi High Court Petition No. E413 of 2021: Osman Ahmed Kahia v the Inspector General of Police & 5 others; the Chief Licensing Officer, Firearm Licensing Board and another (Interested Parties) gave the respondents the green light to investigate the citizenship of the 1 st interested party and take appropriate action so long as they kept within the confines of the Constitution and the law, the respondents, in dereliction of their duty, have taken no action to have the 1 st interested party’s citizenship status investigated.
[5] The petitioner further averred that, alarmed by the respondents’ inaction, he wrote a letter dated 15 th December 2023 seeking to know from the 3 rd respondent the steps taken and the result of the investigations on the citizenship status of the 1 st interested party to no avail. Accordingly, the petitioner was aggrieved that the officers of the 1 st , 2 nd and 3 rd respondents, though well aware that the 1 st interested party is a foreign national living in Kenya illegally and who obtained his Kenyan citizenship fraudulently and illegally, have taken no action to have his citizenship revoked. He also felt aggrieved that, using his illegally acquired citizenship, the 1 st interested party has surreptitiously registered the 2 nd and 3 rd interested parties, which he has used to illegally acquire parcels of land in Mombasa, namely:
[a] Title No. 5153/VI/MN (CR. 6863)
[b] Title No. 5141/VI/MN (CR. 68273)
[c] Title No. 5154/VI/MN (CR. 68639)
[d] Plot No. 5169/VI/MN
[e] Plot No. 5178/VI/MN
[f] Plot No. 5176/VI/MN (CR. 31537)
[6] The petitioner relied on Articles 1, 2, 3, 10, 12, 14, 15, 17, 22, 23, 48, 60, 61, 62 67, 69, 159, 162, 165, 258 and 260 of the Constitution and set out the manner of alleged violation and/or threatened violation as appropriate. He also quoted the provisions of the Kenya Citizenship and Immigration Act , Chapter 172 of the Laws of Kenya that are applicable to his Petition, notably the provisions relating to citizenship by birth; as well as the relevant provisions of the Registration of Persons Act, Chapter 107 of the Laws of Kenya.
[7] It was therefore the averment of the petitioner that, failure by the respondents to investigate the illegal and fraudulent acquisition of the 1 st interested party’s citizenship with a view of revocation is a grave violation of the Constitution and amounts to a derogation by the respondents of the national values and principles of governance as set out in Article 10 of the Constitution. Accordingly, the petitioner approached the Court for the following reliefs:
[a] A declaration that failure by the respondents to investigate the illegal and fraudulent acquisition of Kenyan citizenship by the 1 st interested party and/or investigate the citizenship status of the 1 st interested party is unconstitutional and amounts to dereliction of duty on the part of the respondents.
[b] A declaration that the 3 rd and 4 th respondents abused their office and acted illegally in failing to investigate the citizenship status and revoke the citizenship of the 1 st interested party.
[c] A declaration that that the acts of omission and commission by 1 st , 2 nd and 3 rd respondents amounted to violations of the Constitution and the law, and in particular the Kenya Citizenship and Immigration Act , and the Registration of Persons Act.
[d] A declaration that the 1 st interested party acquired his Kenya citizenship by fraud, false representation or concealment of material facts.
[e] A declaration that the 1 st interested party acquired his Kenyan national identity card and passport through fraud, false pretences and concealment of material facts.
[f] A declaration that the acquisition of all those parcels of land comprising the following Land Reference Numbers:
[a] Title No. 5153/VI/MN (CR. 6863)
[b] Title No. 5141/VI/MN (CR. 68273)
[c] Title No. 5154/VI/MN (CR. 68639)
[d] Plot No. 5169/VI/MN
[e] Plot No. 5178/VI/MN
[f] Plot No. 5176/VI/MN (CR. 31537)
situated in Mombasa within the County of Mombasa, by the 2 nd and 3 rd interested parties subsequent and pursuant to the fraudulent and illegal acquisition of the Kenyan citizenship by the 1 st interested party, is null and void.
[g] An order directing that the acquisition of all those parcels of land comprising the following Land Reference Numbers:
[i] Title No. 5153/VI/MN (CR. 6863)
[ii] Title No. 5141/VI/MN (CR. 68273)
[iii] Title No. 5154/VI/MN (CR. 68639)
[iv] Plot No. 5169/VI/MN
[v] Plot No. 5178/VI/MN
[vi] Plot No. 5176/VI/MN (CR. 31537)
situated in Mombasa within the County of Mombasa, by the 2 nd and 3 rd interested parties subsequent and pursuant to the fraudulent and illegal acquisition of the Kenyan citizenship by the 1 st interested party, be revoked.
[h] An order of judicial review in the nature of Mandamus to compel the 1 st , 2 nd , 3 rd and 5 th respondents to investigate the citizenship status of the 1 st interested party and revoke the citizenship of the 1 st interested party.
[i] An order of judicial review in the nature of mandamus to compel the 2 nd and 3 rd respondents to confiscate and revoke the Kenyan national identity card and passport issued to the 1 st interested party.
[j] Any other or further order or remedy that the Court shall deem fit to grant.
[k] An order that the costs of the Petition be borne by the respondents.
[8] The averments set out herein above were supported by and reiterated in the Supporting Affidavit sworn by the petitioner on 17 th January 2024 and the documents annexed thereto. The documents include the Judgment delivered in Nairobi High Court Petition No. 413 of 2021 among other documents along with the pleadings and documents filed in that suit.
[9] The Petition was resisted by the respondents as well as the interested parties. The 1 st , 2 nd , 3 rd and 5 th respondents filed a Replying Affidavit sworn by Ronnie Akedi , an Assistant Director of Immigration Services. They acknowledged their awareness of their respective constitutional mandates. They also confirmed that the 1 st interested party has been and remains the subject of an active investigation by a multi-agency team regarding his suspected illegal and fraudulent acquisition of Kenyan citizenship.
[10] Accordingly, the 1 st , 2 nd , 3 rd and 5 th respondents contended that it is improper for the petitioner to assume that no investigations are being conducted; and added that it would be premature for the Court to revoke and confiscate the identity card and passport of the 1 st interested party. They proposed that they be given time to conclude their investigations to their logical conclusion and take appropriate action as may be necessary based on the outcome of those investigations.
[11] The 4 th respondent filed Grounds of Opposition in response to the Petition. The interested parties contended as follows in its Grounds of Opposition dated 15 th July 2024:
[a] The Petition is devoid of merit, is frivolous, a gross abuse of the court process and has been filed to satiate personal interests.
[b] The allegations in the Petition are being investigated by the respondents as instructed by the Honorable Justice Mrima vide his judgment dated 23 rd February 2023 in Nairobi High Court Petition No. E413 of 2021: Osman Ahmed Kahia v The Inspector General of Police & 5 others; the Chief Licensing Officer, Firearms Licensing Board & another (Interested Parties).
[c] Since the investigations are underway, the Court ought to grant the respondents time to exercise their constitutional mandate and decide whether or not to charge the 1 st interested party based on their findings.
[d] There is no constitutional timetable provided under Article 17 of the Constitution or in the Kenyan Citizenship and Immigration Act under which investigations into citizenship related matters ought to be undertaken.
[e] It is the prerogative of the respondents as the investigative agencies to either charge the 1 st interested parties or not.
[f] The petitioner herein is hoodwinking the Court to pre-empt the outcome of the ongoing investigations and proceed to give orders stripping the 1 st interested party of his citizenship acquired through birth.
[g] It would amount to judicial overreach for the Court to compel the respondents to take action against the 1 st interested party before completion of thorough investigations.
[12] The Petition was canvassed by way of written submissions pursuant to the directions given herein on 16 th May 2024. The petitioner reiterated the factual background of the Petition as set out in his Petition and Supporting Affidavit. It submitted that it is common ground that the respondents have been investigating the 1 st interested party for, inter alia, obtaining Kenyan citizenship and identification documents by false pretences. The petitioner relied heavily on the decision of the High Court (Hon. Mrima, J.) in Nairobi High Court Constitutional Petition No. E413 of 2021: Osman Ahmet Kahia v The Inspector General of Police & 5 others (hereinafter, Petition No. 413 of 2021) in which the court gave the respondents the greenlight to investigate the citizenship of the 1 st interested party within the confines of the Constitution and the applicable law.
[13] The petitioner quoted extensively from the Affidavit sworn and filed in Petition No. E413 of 2021 by Jimmy Nyikuli , a Principal Immigration Officer in the Ministry of Interior and Coordination of National Government and the judgment of the Court in that Petition. In particular, the petitioner relied on the order that the respondents were under obligation to either proceed with their investigation against the 1 st interested party or drop the same.
[14] The petitioner urged the Court to note that, in this Petition, the 1 st , 2 nd , 3 rd and 5 th respondents have conceded, at paragraphs 4, 5 and 6 of their joint Replying Affidavit, that the 1 st interested party was being investigated for, inter alia, obtaining Kenyan identity documents through fraud and false pretences. On that account the petitioner submitted that, in those circumstances, he had the constitutional obligation under Article 3(1) of the Constitution to pursue the matter with the respondents. So he wrote a letter dated 15 th December 2023, seeking to know what steps had been taken towards the investigation of the citizenship of the 1 st interested party and the outcome of such investigations, if any, but his letter elicited no weight.
[15] In the premises, the petitioner proposed the following two issues for determination:
[a] Whether or not the respondents have failed, declined, neglected and/or refused to fulfil their constitutional obligations; and
[b] Whether the Court can intrude and point out the transgressions by the respondents;
[16] The petitioner relied on various authorities in support of his submissions, including Trusted Society for Human Rights Alliance & 2 others v the Attorney General & 2 others [2012] eKLR to augment his arguments, especially the submissions on the supremacy of the Constitution and the obligation of every state organ to perform their respective functions. The petitioner urged the viewpoint that, in case of dereliction of duty by a state organ, the Court as the ultimate guardian of the Constitution has the jurisdiction to intervene and point out the transgressions.
[17] The petitioner urged the Court to note that the respondents had offered no proof at all of any investigations done after the decision in Petition No. E413 of 2021 or the outcome thereof, if any. The Petitioner also made reference to Article 259 of the Constitution and Rule 8 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 on the extensive powers bestowed on the Court to make such orders as may be necessary for the ends of justice.
[18] The 1 st , 2 nd , 3 rd and 5 th respondents relied on their written submissions dated 19 th September 2024. They reiterated their averments in their Replying Affidavit and urged the Court to find that the Petition is premature.
[19] The 4 th respondent filed written submissions dated 4 th September 2024. It pointed out that no complaint has been brought to its attention by the petitioner against the interested parties. It was therefore the 4 th respondent’s contention that the reliefs sought by the petitioner against it are all premature. Counsel for the 4 th respondent also pointed out that the Commission was never a party to Nairobi High Court Petition No. E413 of 2021 in which the orders to investigate the 1 st interested party was only made aware of the allegations against the 1 st interested party upon being served with a copy of this Petition.
[20] The 4 th respondent further submitted that the petitioner cannot use the Court as the first port of call without approaching and using the available avenues exhaustively to address any allegations of corruption against the interested parties. The 4 th respondent relied on Francis Curukia v Peter Gatirau Munya & 2 others [2017] and Patrick Michuki v Independent Electoral and Boundaries Commission (IEBC) & 4 others [2016] eKLR to set out its investigative procedures and underscore the premature nature of this Petition.
[21] Further, it was the submission of the 4 th respondent that, in any event, the mandate to revoke and/or determine a person’s citizenship lies with the State Department of Immigration in the Ministry of Interior and Coordination of National Government; and therefore the joinder of the 4 th respondent was unnecessary. The 4 th respondent relied on Anarita Karimi Njeru v Republic [1976-80] KLR 1272 to support its argument that the petitioner had failed to set out with precision the alleged violations committed by it. Accordingly, the 4 th respondent prayed for the dismissal of the Petition with costs.
[22] On their part, the interested parties relied on their written submissions dated 31 st January 2025. They surmised that the Petition is premised on the assumption that the 1 st interested party is a Somali national who cannot enjoy Kenyan citizenship in terms of Article 14(4) of the Constitution. They reiterated their Grounds of Opposition and maintained their assertion that the Petition is res judicata, the issues in dispute having been raised and determined with finality in Petition No. E413 of 2021.
[23] According to the interested parties, the petitioner is intent on pre-empted the outcome of the investigations by the 1 st , 2 nd and 3 rd respondents by seeking orders to compel them to conduct investigations. In the same vein, the interested parties submitted that it is improper for the petitioner to invite this Court to wade into the allegations of illegal acquisition of the pieces of land set out in the Petition, yet that aspect is not within the jurisdiction of this Court by dint of Article 162 of the Constitution as read with Section 13 of the Environment and Land Court Act. They also pointed out that the said properties are the subject of a pending case, being ELC/273/2017: Kahia Transporters Ltd & another v Chunku Ltd & another.
[24] In the light of the following, the interested parties proposed the following issues for determination and fashioned their submissions accordingly:
[a] Whether the Petition is res judicata;
[b] Whether a substantive order can be sought by or against an interested party;
[c] Whether legislative processes have been followed in relation to substratum of this Petition;
[d] Whether the Court has jurisdiction to wade into the issue of alleged illegal acquisition of land;
[e] Whether the instant Petition was motivated by any ulterior motive.
[25] From the foregoing, it is common ground that the 1 st interested party has been undergoing investigations to determine whether he lawfully acquired his Kenyan citizenship. He was in fact arrested by the 1 st , 2 nd and 3 rd respondents; which arrest precipitating the filing of Nairobi High Court Petition No. 413 of 2021 . The parties were duly heard and the Court pronounced itself on various issues in its judgment dated 23 rd February 2023. Although the 1 st interested party, as the petitioner in Petition No. E413 of 2021, obtained some of the orders prayed for, the Court made it clear at paragraph 107 of its judgment that:
“…there is no doubt that the Respondents have collective powers to investigate, interrogate, arrest and even deport persons who are in contravention of the Constitution and the law. In the instant case, if investigations reveal that the Petitioner acted contrary to the law in obtaining the impugned documents then, as long as the Respondents stay within the Constitution and the law, they are empowered to not only arrest and arraign the Petitioner before court, but to also deport him accordingly.”
[26] Additionally, the Court observed as follows at paragraph 123 of the judgment aforementioned:
“As to whether the Petitioner was unlawfully arrested, this Court finds in the negative. The Constitution and the law accord the Respondents powers to detect and investigate offences. What the Respondents did could be summed up as carrying out investigations on the Petitioner. The investigations are lawful and if they are yet to be completed, the Respondents are under an obligation to either proceed on or drop the same.”
[27] The petitioner herein relied heavily on the said judgment; and in particular Paragraph 123 aforementioned to anchor his Petition. In his contention, the respondents have declined to take action as ordered by the Court in Petition No. E413 of 2021. Accordingly, before engaging in a merit consideration of the Petition, the following issues arise:
[a] Whether the doctrine of exhaustion is applicable to the facts of this Petition.
[b] Whether the Petition was filed in disregard of the doctrine of avoidance.
A. On the Doctrine of Exhaustion:
[28] As has been pointed out herein above, the petitioner relied heavily on the judgment delivered in Petition No. E413 of 2021. This is manifest at paragraph 25, for instance, where he deposed that:
“…whereas Respondents had been investigating the 1 st interested party for inter alia obtaining Kenyan identification documents through fraud and false pretences and making a false declaration for a passport and for giving false information to a person employed in the public service and whereas the court in Nairobi HC Petition No. E413 of 2021 gave the respondents the green light to investigate the citizenship of the 1 st interested party and take appropriate action so long as they kept within the confines of the Constitution and the law, the Respondents in dereliction of their duty have taken no action to have the 1 st interested party’s citizenship status investigated.
[29] The petitioner proceeded to quote word for word the affidavit sworn by one Jimmy Nyikuli, a Principal Immigration Officer in the Department of Immigration within the Ministry of Interior and Coordination of National Government, as filed in the Nairobi Petition. The petitioner also quoted the provisions of the Constitution as well as the Kenyan Citizenship and Immigration Act and the Registration of Persons Act to demonstrate that there is in place an elaborate procedure for the grant of citizenship and issuance of identity cards and passports by the 1 st , 2 nd and 3 rd respondents. Indeed, it was precisely for failure by the 1 st , 2 nd and 3 rd respondents to comply with those provisions that the 1 st interested party’s Nairobi Petition was allowed.
[30] The question to pose therefore is whether the respondents have completed their investigations, and whether the petitioner has exhausted the alternative dispute resolution procedures provided for under the applicable Immigration laws, This question arises because some of the prayers sought by the petitioner included an order of judicial review in the nature of Mandamus to compel the respondents to investigate the citizenship status of the 1 st interested party and to revoke the citizenship and the identity documents issued to the 1 st interested party.
[31] Article 47 of the Constitution provides that:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.
[32] For purposes of Article 47, Section 9 of the Fair Administrative Action Act stipulates that:
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
[33] Accordingly, in Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal made it clear that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
[34] The principle was reiterated in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, as follows:
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution…”
[35] Having carefully looked at the Petition dated 17 th January 2024 it is my finding that the petitioner approached the Court prematurely, granted the response given by the respondents. While the 1 st , 2 nd 3 rd respondents averred that the investigations are on course and are being handled by a multi-agency team, the 4 th respondent was categorical that no such complaint has been brought to its attention for investigations. I am therefore of the considered view that the Petition was prematurely filed.
B. On the doctrine of Avoidance:
[36] The doctrine of avoidance was well-discussed by the Supreme Court in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR (29 th September 2014) (Judgment) thus:
“[256] The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis . In South Africa, in S v. Mhlungu , 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:
“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
[257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of ( Ashwander v. Tennessee Valley Authority , 297 U.S. 288, 347 (1936)).
[258] From the foundation of principle well developed in the comparative practice, we hold that the 1 st , 2 nd and 3 rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court…”
[37] In the case of K K B v S C M & 5 others (Constitutional Petition E014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling), Hon. Mativo, J. (as he then was) also expressed himself on the doctrine as hereunder:
“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…”
[38] Further in the case of Faraj & 3 others v Police & 2 others (Constitutional Petition 165 of 2020) [2022] KEHC 287 (KLR) (27 April 2022) (Judgment) it was held:
“27. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.
…
29.The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realization that all legislative or common-law remedies are part of the legal system…”
[39] The petitioner set out the provisions of the Kenya Citizenship and Immigration Act that elaborately provide for revocation of citizenship. In particular, Section 21 of the Act states:
( 1) The Cabinet Secretary may, where there is sufficient proof and on recommendation of the Citizenship Advisory Committee, revoke any citizenship acquired by registration on the grounds specified in Article 17
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