1 The applicant, David Abbey Laryea moved court Under Section 389(1) and (2) oF the criminal procedure code and the Rules made hereunder and under Article 29 of the constitution) praying that;
I. This application be certified as urgent and service of the same be dispensed with in the first instance.
2.THAT this court be pleased to direct that summons be issued to the Director of Criminal Investigations and the Regional DCI Officer, Coast and Director of immigration and officers under them to appear before court together with my any warrant or detention Orders or any authority to detain DAVID ABBEY LARYEA and to show cause why the said DAVID ABBEY LARYEA should not be released forthwith.
3. THAT this Honorable Court be pleased to make such other Orders as it deems fit.
2. THE APPLICTION is grounded upon the affidavit of JARED O. MAGOLO and the following grounds:
A. THAT the applicant was arrested by C.I Manyeki of Anti Narcotics Unit of the DCI and detained for 2 days.
B. THAT he was then handed over to the A.T.P.U who with the consent of court detained him for 22 days.
C. THAT the applicant was ordered to be released by the court.
D.THAT the Applicant was arrested immediately and taken to airport police station Mombasa.
E. THAT the applicant is now being moved from airport police station to immigration offices now for 4 days.
F. THAT the applicant has now been in custody for 30 days without charges and no reason for detention.
G. THAT the detention is meant to prevent the applicant from pursuing his petition coming up for hearing on the 22nd July ,2024
3.The Respondents filed Grounds of Opposition and a Replying Affidavit sworn by C I Joseph Ibato. He outlines the history leading to the arrest and states that the Applicant was handed over to the Immigration Department for processing and removal from Kenya to Ghana pursuant to the Declaration under Section 43(1) and 43(2) – the Kenya Citizenship and Immigration Act.
4.The Application proceeded by way of brief oral arguments. Mr. Magolo, The Learned Advocate for The Applicant, pointed out that the Applicant is present in Kenya on a valid permit and visa. That his presence in Kenya is to pursue HIS Petitioner; that is Misc. High Court Petition No. 008 of 2024 in which he has challenged the order by the Cabinet Secretary. Mr kithure Kindiki , Dated 9th November 2023 which declared him a prohibited immigrant.MR MAKUTO, representing the state opposed the Application vehemently and relied on the Cabinets Secretary’s declaration.
5.The court has looked at the said declaration which was made under section 33 (1) of The KCIA CAP 20 LAWS OF KENYA . It declares that the Applicant’s presence is contrary to National interest. The declaration does not state the grounds or the basis on which it was issued. The Respondent states that they had information connecting the Applicant to some crime or crimes hence a threat to national security.
6.This information existed before the issuance of the Declaration and removal order. There was mention of narcotics back then. The Investigating Officer details how police officers went to the residence of the Applicant but could not get access into the house. One must wonder why they did not obtain a warrant to search or a breaking in order if indeed they had valid and allegeable intelligence.
7.Fast forward to the 2nd arrest. This time the Respondents sought and obtained from court 21 days to investigate The Applicant. At this point, The crime had metamorphosized from narcotics to Terrorism . The ATPU moved in. Again, we are not told of any tangible evidence that came from that investigation. That is when the court at Shanzu ordered his release after the lapse of the 21 days they had given.
8.When the court ordered his release, The Applicant still found himself in custody. The Investigating Officer says he is being processed for removal from Kenya. We were not told how the processing is going on or the cause of the delay. The court notes that it is now about 60 days since the arrest of the Applicant and he is yet to be charged or removed from Kenya.
9.We have not been told why he has not been removed from Kenya if that is the intention. Of great significance is the fact that the Applicant was granted and currently holds a valid entry permit and VISA to be in Kenya. These were issued after the declaration by the cabinet secretary. We have not been told that he acted fraudulently in obtaining the subsequent VISA. For that reason , it cannot be said that he was in Kenya unlawfully. Of course, there is the tricky issue of the earlier declaration by The CS.
10. The court is minded that this is not the Petition challenging the issuance of the Cabinet Secretary’s. The Applicant is also not challenging , in this application , any process that the Respondents may be undertaking. What is at stake is what should happen in the meantime? In other words, What are the rights of an arrested person whether Kenyan or otherwise? The court does not agree with the Respondents that they can hold any human being indefinitely without either charging him or removing him from Kenya. That would amount to illegal detention and a breach of his right to freedom and movement.
11.It is understandable that the Respondents find themselves in the embarrassing situation or rather a difficult positio . There exists two conflicting orders from the Immigration department; one being the removal order by the Cabinet Secretary and the other being the valid permit and visa which were issued after the declaration that he is a prohibited person.
12. The court is minded not to interfere with proper exercise of the mandate of other Statutory organs and more so when illegalities are mentioned. The state actors on the other hand must act within the constitutional and legal boundaries. Their action must not amount to an affront to justice, be abusive nor be open disregard of the constitutional principles that they are expected to protect. In the case of Oumarou Moumouni Ali Vs. Director General Kenya Citizens and Foreign Nationals Management Services & 3 others [2020] eKLR the court stated thus: “ . The Respondents in exercise of their functions as state officers are bound by provisions of Article 10 of the Constitution thus the National Values and Principles of Governance which includes the rule of law, democracy, human dignity.
In Salim Sultan Lakdwala v Director of Public Prosecutions & another [2021] eKLR it was further noted that equity, social justice, human rights, non-discrimination and protection of the marginalized, transparency and accountability are key. It is not for them to urge that they should be accorded the anatomy vested in them by statute without unnecessary intervention of the Court when it is clear such autonomy has been abused by issuing .
13.In the instant case, we note there is no tangible evidence, since last year when this issue came up, has been presented. If it exists , the respondents have not acted on it by charging the Applicant.
On the other hand, the Applicant has made a raft of allegations against the Respondents; From bias, multiple arrest, Seizure of his property and money amongst others. However like earlier stated, this is not the main Petition.
14.In this Application we are only dealing with his continued detention having established that indeed he has been in the custody of the Respondents for two months. The court has weighed the submissions , considered all the above circumstances and especially having taken into account the time the Applicant has been in custody, finds that the Application has merit. One cannot be detained indefinitely.
1. To ensure that the Respondents progress with the investigation , if any, the court makes the following orders:
i. The Application is allowed and Applicant be released from custody forthwith on the following conditions;
ii. The Applicant be and is granted a cash bail of Kshs.200,000/- with 1 Kenyan contact person.
iii. The applicant to present himself in the presence of his advocate, if needed , for investigations before the investigator at an agreed date and or schedule.
iv. The Investigations or processing should be completed within the next 60 days from today.
v. It is so ordered
DATED , SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JULY 2024
HON. LADY JUSTICE WENDY KAGENDO
JUDGE
DELIVERED IN THE PRESENCE OF
MR. MAGOLO FOR THE APPLICANT
MR MAKUTO AND MS MAINA FOR THE RESPONDENT
MS MWAKA BEBORA COURT ASSISTANT
I. This application be certified as urgent and service of the same be dispensed with in the first instance.
2.THAT this court be pleased to direct that summons be issued to the Director of Criminal Investigations and the Regional DCI Officer, Coast and Director of immigration and officers under them to appear before court together with my any warrant or detention Orders or any authority to detain DAVID ABBEY LARYEA and to show cause why the said DAVID ABBEY LARYEA should not be released forthwith.
3. THAT this Honorable Court be pleased to make such other Orders as it deems fit.
2. THE APPLICTION is grounded upon the affidavit of JARED O. MAGOLO and the following grounds:
A. THAT the applicant was arrested by C.I Manyeki of Anti Narcotics Unit of the DCI and detained for 2 days.
B. THAT he was then handed over to the A.T.P.U who with the consent of court detained him for 22 days.
C. THAT the applicant was ordered to be released by the court.
D.THAT the Applicant was arrested immediately and taken to airport police station Mombasa.
E. THAT the applicant is now being moved from airport police station to immigration offices now for 4 days.
F. THAT the applicant has now been in custody for 30 days without charges and no reason for detention.
G. THAT the detention is meant to prevent the applicant from pursuing his petition coming up for hearing on the 22nd July ,2024
3.The Respondents filed Grounds of Opposition and a Replying Affidavit sworn by C I Joseph Ibato. He outlines the history leading to the arrest and states that the Applicant was handed over to the Immigration Department for processing and removal from Kenya to Ghana pursuant to the Declaration under Section 43(1) and 43(2) – the Kenya Citizenship and Immigration Act.
4.The Application proceeded by way of brief oral arguments. Mr. Magolo, The Learned Advocate for The Applicant, pointed out that the Applicant is present in Kenya on a valid permit and visa. That his presence in Kenya is to pursue HIS Petitioner; that is Misc. High Court Petition No. 008 of 2024 in which he has challenged the order by the Cabinet Secretary. Mr kithure Kindiki , Dated 9th November 2023 which declared him a prohibited immigrant.MR MAKUTO, representing the state opposed the Application vehemently and relied on the Cabinets Secretary’s declaration.
5.The court has looked at the said declaration which was made under section 33 (1) of The KCIA CAP 20 LAWS OF KENYA . It declares that the Applicant’s presence is contrary to National interest. The declaration does not state the grounds or the basis on which it was issued. The Respondent states that they had information connecting the Applicant to some crime or crimes hence a threat to national security.
6.This information existed before the issuance of the Declaration and removal order. There was mention of narcotics back then. The Investigating Officer details how police officers went to the residence of the Applicant but could not get access into the house. One must wonder why they did not obtain a warrant to search or a breaking in order if indeed they had valid and allegeable intelligence.
7.Fast forward to the 2nd arrest. This time the Respondents sought and obtained from court 21 days to investigate The Applicant. At this point, The crime had metamorphosized from narcotics to Terrorism . The ATPU moved in. Again, we are not told of any tangible evidence that came from that investigation. That is when the court at Shanzu ordered his release after the lapse of the 21 days they had given.
8.When the court ordered his release, The Applicant still found himself in custody. The Investigating Officer says he is being processed for removal from Kenya. We were not told how the processing is going on or the cause of the delay. The court notes that it is now about 60 days since the arrest of the Applicant and he is yet to be charged or removed from Kenya.
9.We have not been told why he has not been removed from Kenya if that is the intention. Of great significance is the fact that the Applicant was granted and currently holds a valid entry permit and VISA to be in Kenya. These were issued after the declaration by the cabinet secretary. We have not been told that he acted fraudulently in obtaining the subsequent VISA. For that reason , it cannot be said that he was in Kenya unlawfully. Of course, there is the tricky issue of the earlier declaration by The CS.
10. The court is minded that this is not the Petition challenging the issuance of the Cabinet Secretary’s. The Applicant is also not challenging , in this application , any process that the Respondents may be undertaking. What is at stake is what should happen in the meantime? In other words, What are the rights of an arrested person whether Kenyan or otherwise? The court does not agree with the Respondents that they can hold any human being indefinitely without either charging him or removing him from Kenya. That would amount to illegal detention and a breach of his right to freedom and movement.
11.It is understandable that the Respondents find themselves in the embarrassing situation or rather a difficult positio . There exists two conflicting orders from the Immigration department; one being the removal order by the Cabinet Secretary and the other being the valid permit and visa which were issued after the declaration that he is a prohibited person.
12. The court is minded not to interfere with proper exercise of the mandate of other Statutory organs and more so when illegalities are mentioned. The state actors on the other hand must act within the constitutional and legal boundaries. Their action must not amount to an affront to justice, be abusive nor be open disregard of the constitutional principles that they are expected to protect. In the case of Oumarou Moumouni Ali Vs. Director General Kenya Citizens and Foreign Nationals Management Services & 3 others [2020] eKLR the court stated thus: “ . The Respondents in exercise of their functions as state officers are bound by provisions of Article 10 of the Constitution thus the National Values and Principles of Governance which includes the rule of law, democracy, human dignity.
In Salim Sultan Lakdwala v Director of Public Prosecutions & another [2021] eKLR it was further noted that equity, social justice, human rights, non-discrimination and protection of the marginalized, transparency and accountability are key. It is not for them to urge that they should be accorded the anatomy vested in them by statute without unnecessary intervention of the Court when it is clear such autonomy has been abused by issuing .
13.In the instant case, we note there is no tangible evidence, since last year when this issue came up, has been presented. If it exists , the respondents have not acted on it by charging the Applicant.
On the other hand, the Applicant has made a raft of allegations against the Respondents; From bias, multiple arrest, Seizure of his property and money amongst others. However like earlier stated, this is not the main Petition.
14.In this Application we are only dealing with his continued detention having established that indeed he has been in the custody of the Respondents for two months. The court has weighed the submissions , considered all the above circumstances and especially having taken into account the time the Applicant has been in custody, finds that the Application has merit. One cannot be detained indefinitely.
1. To ensure that the Respondents progress with the investigation , if any, the court makes the following orders:
i. The Application is allowed and Applicant be released from custody forthwith on the following conditions;
ii. The Applicant be and is granted a cash bail of Kshs.200,000/- with 1 Kenyan contact person.
iii. The applicant to present himself in the presence of his advocate, if needed , for investigations before the investigator at an agreed date and or schedule.
iv. The Investigations or processing should be completed within the next 60 days from today.
v. It is so ordered
DATED , SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JULY 2024
HON. LADY JUSTICE WENDY KAGENDO
JUDGE
DELIVERED IN THE PRESENCE OF
MR. MAGOLO FOR THE APPLICANT
MR MAKUTO AND MS MAINA FOR THE RESPONDENT
MS MWAKA BEBORA COURT ASSISTANT