' [1] The petitioner described himself in the Petition dated 11 th March 2024 as a law abiding resident of Kenya, though not a citizen of Kenya. He averred that at first, he was residing at Mtwapa but had to vacate after a misunderstanding arose between him and his landlady. He further stated that, under the instructions and influence of the said landlady, the Police, particularly the Anti-Narcotics Unit of the Directorate of Criminal Investigations (DCI) conducted several raids at his home, damaged his property and threatened him with arrest.
[2] The petitioner further averred that the Department of Immigration had also threatened him with prosecution and deportation. He added that the threats are illegal because:
[a] He had not committed any offence;
[b] He had not been informed of any reason or cause for his arrest or the threats of arrest;
[c] His right of movement and freedom to enjoy his privacy and peace have been curtailed.
[3] At paragraph 10 of the Petition, the petitioner stated that he was in possession of a document said to have been written and issued by the Minister in charge of Immigration declaring that his presence is no longer required in this country. He averred that the declaration is illegal because:
[a] He had lived in Kenya peacefully without any criminal activity;
[b] He had not been notified of any wrongdoing on his part;
[c] He had not been given a hearing;
[d] The declaration had been instigated by his former landlady.
[e] The directive restricted his freedom of movement and the right to live at a place of his choice.
[4] The petitioner averred that he now lives in fear after police officers visited his residence, damaged his property and locked the doors; thereby denying him access. He therefore filed this Petition seeking the following reliefs:
[a] A declaration that the petitioner’s right to freedom of movement and privacy have been breached and are threatened with further breach.
[b] An order of certiorari to bring to this Court for the purpose of quashing and quashing the decision of the Minister in charge of Immigration dated 9 th November 2023.
[c] An order of prohibition prohibiting the respondent from arresting, prosecuting and deporting the petitioner based on the order of the Minister in charge of Immigration dated 9 th November 2023.
[d] Any other relief the Court deems necessary.
[e] Cost and interest.
[5] The Petition was supported by the petitioner’s own affidavit, sworn on 11 th March 2024. He averred that he is a Ghanaian national who had been visiting Kenya from time to time. He exhibited copies of his Passport as well as his Visitor’s Pass to show that he was lawfully present in Kenya. He further averred that he is married to a Kenyan, namely, Tamasha Jiwe , and annexed a Certificate of Marriage to back up his averment.
[6] The petitioner averred that while in Kenya, he was staying in Mtwapa and that on many occasions his landlady, Victoria Muthama , subjected him to quarrels, complaints and even police harassment by calling in the police to arrest him. The petitioner further averred that, on the 7 th July 2023, the said landlady broke into his house accompanied by 10 men and robbed him of USD 3500 and Kshs. 6,500 among other properties. He also complained that the Police also damaged his property; and that he reported the incident to the Office of the Director of Public Prosecutions.
[7] The petitioner stated that even after moving out of the Mtwapa premises the harassment did not stop. On the 29 th November 2023, the officers of the 1 st respondent broke into his Bombolulu premises in search of narcotic drugs. He added that the police again raided his house on 24 th February 2024 in his absence. It was the assertion of the petitioner that he has never committed any offence and that the whole purpose of the harassment was to get rid of him for the sole reason that he is a foreigner.
[8] The respondents opposed the Petition. They relied on the Replying Affidavit sworn on 19 th March 2024 by CI Edwin Manyeki , an investigator with the Directorate of Criminal Investigations, attached to the Anti-Narcotics Unit at the Coast Regional Headquarters. He averred that since March 2023, their office had been receiving several intelligence reports of incidents of trafficking in narcotic drugs at night clubs within Mtwapa Town and Nyali area involving the petitioner. They accordingly visited his place of residence on 25 th August 2023 but the petitioner refused to open the door. They later learnt that he had moved to Bombolulu. They surmised that he had changed residence in a bid to evade arrest. The respondents then traced and caused the petitioner to be deported, upon being declared a prohibited immigrant.
[9] The respondents further averred that in the month of January 2024, they received intelligence report that the petitioner had been sighted within Nyali and Mtwapa areas. The investigations conducted thereafter revealed that the petitioner was back in the country unlawfully and was staying at Zawadi Apartments in Bamburi areas in Block 5 Door No. 212. When a team of detectives visited the apartment the petitioner again managed to escape through the window in the company of a female accomplice.
[10] Accordingly, the respondents contended that the instant Petition is simply meant to curtail the exercise of their lawful mandate as donated by legislation. They therefore prayed that the Petition be dismissed with costs.
[11] In response to the Replying Affidavit, the petitioner filed a Further Affidavit sworn on 21 st March 2024. He averred that CI Manyeki and his team arrested him on 30 th November 2023 and took him to Port Police Station where he spent the night; notwithstanding that he had not committed any offence. He mentioned that his Visitor’s Pass was valid at the time and was to expire on 3 rd December 2023. He was released the following day without any charge being preferred against him. He denied that he was deported as alleged in the respondent’s Replying Affidavit. He averred that he left the country of his own accord. He further deposed that upon return the harassment by CI Manyeki continued; and therefore he was constrained to file the instant Petition for redress.
[12] Directions were thereafter given on 16 th May 2024 that the Petition be canvassed by way of written submissions. The petitioner relied on his written submissions dated 21 st August 2024. He reiterated the factual basis of his Petition, namely that by a Notice dated the 9 th November, 2024, the Cabinet Secretary for the Ministry of interior and National Coordination (the 2 nd respondent) declared the Petitioner a prohibited immigrant pursuant to Section 33(1)(d) of the Kenya Citizenship and Immigration Act. The petitioner submitted that no reason was ever given to him for that decision.
[13] The petitioner relied on Article 10 of the Constitution and Muslims for Human Rights (MUHURI) & Another v Inspector General of Police & 5 others [2015] eKLR to underscore the importance of the rule of law and the need for all power to be exercised within the bounds of the law. He further submitted that one of the hallmarks of the constitution of Kenya, is the expansive and broad conceptualization of fundamental rights and freedoms. He also made reference to the new governance structure as explicated in the case of Miguna Miguna v Fred Okengo Matiang''l Cabinet Secretary Ministrv of Interior and Coordination of National Government & 6 others; Kenya National Commission on Human Rights (Interested Party) [2018] eKLR.
[14] The petitioner also relied on Article 47 of the Constitution and submitted that, in exercising his administrative powers, the 2 nd defendant was under obligation to give reasons for his decisions, notwithstanding that Section 33 does not seem to require him to give reasons for his actions. He also pointed out that it did not matter that he is a foreigner. In this regard, the petitioner relied on Republic v Director of Immigration Services Ex-Parte Planet Motors Company Limited & another [20161 eKLR in which the court stated that;
"93. A foreign national has rights and is entitled to equal protection of the law. He is a human being and is not to be denied any of the inherent human rights or those rights that our constitution guarantees, even if limited to some extent. He is entitled to know the specific reasons for his deportation or for refusal to renew his resident permit or to be watch listed. That is why Parliament through Section 33(1) of the Act listed all the reasons that can form the basis for the deportation of an immigrant. "
[15] In addition, the petitioner cited the following authorities:
[a] Republic v Otieno Kajwang Ex-parte Mohnaud Siras [2009] eKLR in which the court held that a suspect deserves the opportunity to give his side of the story before any adverse action can be taken against him.
[b] Ernst & Young LLP v Capital Market Authority & Another [2017] eKLR in which it was held:
"…t he respondent herein is required to observe and accord persons under investigation and or any person likely to be adversely affected by the decision a fair process and in particular is required to adhere to the principles of natural justice and comply with the provisions of Article 50(1) and 47 of the constitution."
[c] Suchan investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR where the Court of Appeal held that the right to be heard is indisputable where the interest that gives rise to the right is a legal right or interest.
[d] Republic v minister of state for Immigration and Registration of Persons, Ex-Parte C O [2013] eKLR where the learned Judge opined at paragraph 33 of his judgment that the courts are empowered to investigate allegations of abuse of power and improper exercise of discretion.
[16] The petitioner also relied on Article 2(5) and (6) of the Constitution as well as Articles 12 and 13 of the International Convention for Civil and Political Rights (ICCPR) for the submission that the respondents were obliged to observe the above provisions of ICCPR to ensure that, as an alien from another state party, he was accorded fair treatment; and that any decision to expel him or to remove him from Kenya was done in strict adherence of the rule of law. Accordingly, the petitioner prayed that the Petition be allowed as prayed and the orders sought granted, including the quashing of the decision of the 2 nd respondent.
[17] It appears the respondents did not file their submissions in respect of the Petition. On record are written submissions addressing the Amended Notice of Motion dated 21 st March 2024. I have nevertheless taken into consideration their averments as set out in their Replying Affidavit. I have likewise given careful thought to the petitioner’s case, including his written submissions and the authorities he relied on in support of those submissions.
[18] The agreed facts are that the petitioner is a Ghanaian who, at the time of filing the Petition, was resident in Kenya. He had a valid passport indicating that he had travelled in and out of Kenya on various dates. His Visitor’s Pass had also been extended to 18 th June 2024. He annexed copies of these documents to his Further Affidavit sworn on 21 st March 2024. The plaintiff also proved that he is married to a Kenyan, one Tamasha Jiwe. He proved this by annexing their Certificate of Marriage to his Supporting Affidavit.
[19] The petitioner adverted to incidents of harassment, not only by his landlady, but also by the Police; and in their Replying Affidavit, the respondents conceded that they conducted searches at the petitioner’s place of residence in Bombolulu before the petitioner availed himself at the DCI, Coastal Region Headquarters on 30 th November 2023. That was the date he was informed that he had been declared a prohibited immigrant. He was then detained pending deportation. The petitioner was evidently deported, going by the documents marked DAL-5a, DAL-5b annexed to the respondent’s Replying Affidavit. He nevertheless returned to Kenya thereafter and his presence brought to the attention of the Police in the month of January 2024.
[20] The respondents averred, at paragraphs 14 to 21 that the petitioner remains a prohibited immigrant; there being nothing to demonstrate that the 2 nd respondent’s declaration had been reversed. They also averred that the petitioner’s passport had no entry stamp proving that his return was sanctioned by the Immigration Department. In the premises, the issues for determination herein are:
[a] Whether in the circumstances the petitioner’s freedom of movement and right to privacy have been breached and are threatened with further breach:
[b] Whether the petitioner is entitled to the reliefs sought by him in the Petition dated 11 th March 2024.
[21] In determining the two issues it must be borne in mind that the legal burden of proof is on the petitioner. Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya is explicit that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
[22] Likewise, Section 108 of the Evidence Act provides that:
The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
[23] In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334, the Court of Appeal had the following to say in respect of the general position at law in respect of the burden of proof:
“…As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act...”
[24] Similarly, in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) the Supreme Court held:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[25] It is equally instructive to take into consideration the following excerpt from the decision of the Supreme Court of Canada in R v Morin [1992] 1 SCR 771, which was cited with approval by the Court of Appeal in Julius Kamau Mbugua v Republic [2010] eKLR:
“The general approach in a determination as to whether the right has been denied is not by the application of mathematical or administrative formula but rather by a judicial determination balancing the interest which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay.”
[26] The right to privacy is provided for in Article 31 of the Constitution in the following terms:
Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
[27] The fundamental freedom of movement is enshrined in Article 39 of the Constitution. The provision states:
(1) Every person has the right to freedom of movement.
(2) Every person has the right to leave Kenya.
(3) Every citizen has the right to enter, remain in and reside anywhere in Kenya .
[28] As correctly pointed out by counsel for the petitioner in his written submissions, the right to freedom of movement is also the subject of Article 12 of the ICCPR, a convention applicable to Kenya by virtue of Article 2(6) of the Constitution, which provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. To that end, Article 12 provides that:
(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
(2) Everyone shall be free to leave any country, including his own.
[29] From the evidence presented herein, while in Kenya, the petitioner moved freely and lived in residences of his own choice. He said he initially lived in Mtwapa area but had to move to Bombolulu area after a disagreement with his Mtwapa landlady. What the petitioner seemed to be aggrieved about was that, after he moved to Bombolulu, the Anti-Narcotics Unit of the Directorate of Criminal Investigations (DCI) conducted several raids at his home, damaged his property and threatened him with arrest and prosecution.
[30] The petitioner also mentioned that the Department of Immigration had also threatened him, not only with prosecution but also deportation. In his view, the threats are illegal because:
[a] He had not committed any offence;
[b] He had not been informed of any reason or cause for his arrest or the threats of arrest.
[31] It is significant however that neither Article 31 nor 39 of the Constitution is non-derogable. Article 24 stipulates that:
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
[32] Accordingly, the respondents placed reliance on the Kenya Citizenship and Immigration Act (the KCIA) and averred that the subject Declaration was made by the 2 nd defendant pursuant to Section 33(1) of the KCIA. That provision states as follows in its relevant parts:
(1) For purposes of this Act, a prohibited immigrant is…
(d) a person who is reasonably suspected to be engaged in or facilitates the trafficking of narcotics, prohibited, controlled or banned substances;
…
(g) a person in respect of whom there is in force an order made or deemed to be made under section 43 directing that such person must be removed from and remain out of Kenya;
…
(w) a person who has been repatriated and or removed from Kenya under any lawful order.
[33] The respondents averred, and this averment was uncontested, that the Anti-Narcotics Unit, Coastal Region, received several intelligence reports of incidents of drug trafficking at night clubs within Mtwapa and Nyali areas involving the petitioner. Investigations were conducted whereupon detectives visited the petitioner’s residence within Mtwapa at 2.00 p.m. on 25 th August 2023, but he refused to open the door. Thereafter, the detectives got to learn that the petitioner had relocated to Bombolulu; a move they concluded was intended to evade arrest.
[34] The provision above is plain; it suffices that there be reasonable suspicion to warrant deportation. The evidence presented herein shows that, upon the petitioner being declared a prohibited immigrant by the 2 nd respondent on 9 th November 2023, detectives visited his house on 29 th November 2023 but did not find him at home. Consequently, they served the caretaker of the premises with summons on behalf of the petitioner, requiring him to attend their office for further action. The petitioner obeyed and availed himself on 30 th November 2023 in the presence civil rights activists. He was informed of the deportation order and the reason therefor, after which he was placed in custody pending deportation as a prohibited immigrant, and was in fact deported on 4 th December 2023.
[35] The respondents backed up their assertions by annexing copies of the impugned declaration as well as copies of the summons (Annexures DAL-2 and DAL-3. More importantly, the respondents annexed a copy of the Ticket for the petitioner’s travel from Nairobi to Accra, Ghana, on 4 th December 2023.
[36] The petitioner conceded, at paragraph 11 of his Supporting Affidavit that police officers attached to the Anti-Narcotics Unit raided his house on the 29 th November 2023 in his absence; and that he left the country on 4 th December 2023. A copy of his Passport confirms, not only that he left Kenya on the 4 th December 2023, but also that his Visitor’s Pass expired on 3 rd December 2023. The question to pose then is under what circumstances did the petitioner return to Kenya, and whether under those circumstances he can challenge the Declaration of 9 th November 2023.
[37] The respondents’ contention was that there was no indication on the petitioner’s Passport to confirm re-entry into the country after his deportation on 4 th December 2023. It is indeed true that in his initial affidavit there was no such indication in the copies of the petitioner’s Passport attached to his initial affidavit. However, the record shows that the omission was immediately cured by the petitioner. He did so by filing a Further Affidavit sworn on 21 st March 2024 in response to the respondents’ assertions. He also annexed thereto copies of the relevant pages of his Passport which show that on 19 th March 2024 his Visitor’s Pass was extended to 18 th June 2024 at the Mombasa Immigration office.
[38] Nevertheless, there is an unexplained gap because, at paragraph 14 of his Affidavit in Support of Petition sworn on 11 th March 2024, the petitioner averred that he left the country on 4 th December 2023 and returned on 19 th December 2023.There is nothing to show under what authority he re-entered and stayed in Kenya between 19 th December 2023 to 19 th March 2024 when his Visitor’s Pass was extended. Section 34 of the KCIA is explicit that:
(1) A person who is not a citizen of Kenya or an asylum seeker shall not enter or remain in Kenya unless she or he has a valid permit or pass.
(2) Subject to the provisions of this section, the presence in Kenya of any person who is not a citizen of Kenya shall, unless otherwise authorized under this Act, be unlawful, unless that person is in possession of a valid work permit or a valid residence permit or a valid pass.”
[39] More importantly, Section 33(5) provides:
Subject to section 34 the entry into and residence in Kenya of a prohibited immigrant or an inadmissible person shall be unlawful and a person seeking to enter Kenya shall, if he or she is a prohibited immigrant or inadmissible person, be refused permission to enter or transit through Kenya, whether or not he or she is in possession of any document which, were it not for this section, would entitle him or her to enter or transit through Kenya.
[40] Clearly therefore, the petitioner cannot claim to be lawfully present in Kenya under the circumstances.
[41] Though the petitioner relied on Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act, those provisions do not avail him given that, as a prohibited immigrant, he returned to Kenya in unclear circumstances and has been staying in Kenya unlawfully. Notably it is plain from the Replying Affidavit that the respondents’ intention was to subject the petitioner to investigations and due process as at the time he filed this Petition.
[42] Section 35 of the National Police Service Act lists their specific functions to include:
(a) collect and provide criminal intelligence;
(b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others;
(c) maintain law and order;
(d) detect and prevent crime;
(e) apprehend offenders;
(f) maintain criminal records;
(g) conduct forensic analysis;
(h) execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157(4) of the Constitution;
(i) coordinate country Interpol Affairs;
(j) investigate any matter that may be referred to it by the Independent Police Oversight Authority; and
(k) perform any other function conferred on it by any other written law.
[43] Additionally, Section 51 of the National Police Service Act provides that:
(1) A police officer shall—
(a)obey and execute all lawful orders in respect of the execution of the duties of office which he may from time to time receive from his superiors in the Service;
(b)obey and execute all orders and warrants lawfully issued;
(c)provide assistance to members of the public when they are in need;
(d)maintain law and order;
(e)protect life and property;
(f)preserve and maintain public peace and safety;
(g)collect and communicate intelligence affecting law and order;
(h)take all steps necessary to prevent the commission of offences and public nuisance;
(i)detect offenders and bring them to justice;
(j)investigate crime; and
(k)apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient ground exists.
[44] The mandate of the 3 rd respondent to make decisions on whether or not to prosecute and to conduct the prosecutorial function is also provided for in the Constitution at Article 157 . Sub-Article (10) thereof states that:
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
[45] It is important to appreciate however that the respondent’s mandate is not unquestionable. Article 157(11) provides that in exercising the powers conferred on him, the respondent shall have regard to the interests of the administration of justice and the need to prevent and avoid abuse of the legal process . This is a constitutional imperative that the respondent must always have in mind whenever exercising his constitutional mandate. Consequently, whereas the Constitution confers on the National Police Service the mandate to investigate and the Respondent to prosecute, they must act in good faith and in the public interest.
[46] Thus, the general position was aptly stated in Kites Technical Limited v Police & 2 others; Kenya Power & Lighting Company Limited (Interested Party) (Constitutional Petition E041 of 2021) [2021] KEHC 204 (KLR) (10 November 2021) (Ruling) , as follows:
“The police have a statutory and constitutional duty to investigate crime. Failure to investigate is a gross dereliction of duty which can have the most far-reaching consequences for the complainant, the suspect and the criminal justice system. A wrong decision not to investigate or failure to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system. For victims and their families, a decision not to investigate crime or not to prosecute can be distressing. The victim, having made what is often a very difficult and occasionally traumatic decision to report a crime, may feel rejected and disbelieved…”
[47] Authorities abound to show that the best forum for testing the sufficiency or otherwise of evidence is the trial court itself. For instance, in Erick Kibiwott & 2 Others v Director of Public Prosecution & 2 Others [2014] eKLR it was held that:
“…In determining the issues raised herein the Court will therefore avoid the temptation to unnecessarily stray into the arena exclusively reserved for the criminal or trial court. In dealing with the merits of the application, it is trite that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. There mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings…”
[48] Additionally, and more importantly, Article 50(1) of the Constitution provides that:
“(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
[49] Needless to mention that the essence of Article 50(1) of the Constitution is the concept of a fair hearing; and that it envisages the context of the fair hearing to be a public hearing before “…a court or, if appropriate, another independent and impartial tribunal or body…” in which the accused person is afforded all the safeguards set out in Article 50(2) of the Constitution . It is for the foregoing reasons that it is always preferable that disputes about facts, such as those raised herein by the petitioner as to his innocence in respect of the suspicions that he was traff
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[2] The petitioner further averred that the Department of Immigration had also threatened him with prosecution and deportation. He added that the threats are illegal because:
[a] He had not committed any offence;
[b] He had not been informed of any reason or cause for his arrest or the threats of arrest;
[c] His right of movement and freedom to enjoy his privacy and peace have been curtailed.
[3] At paragraph 10 of the Petition, the petitioner stated that he was in possession of a document said to have been written and issued by the Minister in charge of Immigration declaring that his presence is no longer required in this country. He averred that the declaration is illegal because:
[a] He had lived in Kenya peacefully without any criminal activity;
[b] He had not been notified of any wrongdoing on his part;
[c] He had not been given a hearing;
[d] The declaration had been instigated by his former landlady.
[e] The directive restricted his freedom of movement and the right to live at a place of his choice.
[4] The petitioner averred that he now lives in fear after police officers visited his residence, damaged his property and locked the doors; thereby denying him access. He therefore filed this Petition seeking the following reliefs:
[a] A declaration that the petitioner’s right to freedom of movement and privacy have been breached and are threatened with further breach.
[b] An order of certiorari to bring to this Court for the purpose of quashing and quashing the decision of the Minister in charge of Immigration dated 9 th November 2023.
[c] An order of prohibition prohibiting the respondent from arresting, prosecuting and deporting the petitioner based on the order of the Minister in charge of Immigration dated 9 th November 2023.
[d] Any other relief the Court deems necessary.
[e] Cost and interest.
[5] The Petition was supported by the petitioner’s own affidavit, sworn on 11 th March 2024. He averred that he is a Ghanaian national who had been visiting Kenya from time to time. He exhibited copies of his Passport as well as his Visitor’s Pass to show that he was lawfully present in Kenya. He further averred that he is married to a Kenyan, namely, Tamasha Jiwe , and annexed a Certificate of Marriage to back up his averment.
[6] The petitioner averred that while in Kenya, he was staying in Mtwapa and that on many occasions his landlady, Victoria Muthama , subjected him to quarrels, complaints and even police harassment by calling in the police to arrest him. The petitioner further averred that, on the 7 th July 2023, the said landlady broke into his house accompanied by 10 men and robbed him of USD 3500 and Kshs. 6,500 among other properties. He also complained that the Police also damaged his property; and that he reported the incident to the Office of the Director of Public Prosecutions.
[7] The petitioner stated that even after moving out of the Mtwapa premises the harassment did not stop. On the 29 th November 2023, the officers of the 1 st respondent broke into his Bombolulu premises in search of narcotic drugs. He added that the police again raided his house on 24 th February 2024 in his absence. It was the assertion of the petitioner that he has never committed any offence and that the whole purpose of the harassment was to get rid of him for the sole reason that he is a foreigner.
[8] The respondents opposed the Petition. They relied on the Replying Affidavit sworn on 19 th March 2024 by CI Edwin Manyeki , an investigator with the Directorate of Criminal Investigations, attached to the Anti-Narcotics Unit at the Coast Regional Headquarters. He averred that since March 2023, their office had been receiving several intelligence reports of incidents of trafficking in narcotic drugs at night clubs within Mtwapa Town and Nyali area involving the petitioner. They accordingly visited his place of residence on 25 th August 2023 but the petitioner refused to open the door. They later learnt that he had moved to Bombolulu. They surmised that he had changed residence in a bid to evade arrest. The respondents then traced and caused the petitioner to be deported, upon being declared a prohibited immigrant.
[9] The respondents further averred that in the month of January 2024, they received intelligence report that the petitioner had been sighted within Nyali and Mtwapa areas. The investigations conducted thereafter revealed that the petitioner was back in the country unlawfully and was staying at Zawadi Apartments in Bamburi areas in Block 5 Door No. 212. When a team of detectives visited the apartment the petitioner again managed to escape through the window in the company of a female accomplice.
[10] Accordingly, the respondents contended that the instant Petition is simply meant to curtail the exercise of their lawful mandate as donated by legislation. They therefore prayed that the Petition be dismissed with costs.
[11] In response to the Replying Affidavit, the petitioner filed a Further Affidavit sworn on 21 st March 2024. He averred that CI Manyeki and his team arrested him on 30 th November 2023 and took him to Port Police Station where he spent the night; notwithstanding that he had not committed any offence. He mentioned that his Visitor’s Pass was valid at the time and was to expire on 3 rd December 2023. He was released the following day without any charge being preferred against him. He denied that he was deported as alleged in the respondent’s Replying Affidavit. He averred that he left the country of his own accord. He further deposed that upon return the harassment by CI Manyeki continued; and therefore he was constrained to file the instant Petition for redress.
[12] Directions were thereafter given on 16 th May 2024 that the Petition be canvassed by way of written submissions. The petitioner relied on his written submissions dated 21 st August 2024. He reiterated the factual basis of his Petition, namely that by a Notice dated the 9 th November, 2024, the Cabinet Secretary for the Ministry of interior and National Coordination (the 2 nd respondent) declared the Petitioner a prohibited immigrant pursuant to Section 33(1)(d) of the Kenya Citizenship and Immigration Act. The petitioner submitted that no reason was ever given to him for that decision.
[13] The petitioner relied on Article 10 of the Constitution and Muslims for Human Rights (MUHURI) & Another v Inspector General of Police & 5 others [2015] eKLR to underscore the importance of the rule of law and the need for all power to be exercised within the bounds of the law. He further submitted that one of the hallmarks of the constitution of Kenya, is the expansive and broad conceptualization of fundamental rights and freedoms. He also made reference to the new governance structure as explicated in the case of Miguna Miguna v Fred Okengo Matiang''l Cabinet Secretary Ministrv of Interior and Coordination of National Government & 6 others; Kenya National Commission on Human Rights (Interested Party) [2018] eKLR.
[14] The petitioner also relied on Article 47 of the Constitution and submitted that, in exercising his administrative powers, the 2 nd defendant was under obligation to give reasons for his decisions, notwithstanding that Section 33 does not seem to require him to give reasons for his actions. He also pointed out that it did not matter that he is a foreigner. In this regard, the petitioner relied on Republic v Director of Immigration Services Ex-Parte Planet Motors Company Limited & another [20161 eKLR in which the court stated that;
"93. A foreign national has rights and is entitled to equal protection of the law. He is a human being and is not to be denied any of the inherent human rights or those rights that our constitution guarantees, even if limited to some extent. He is entitled to know the specific reasons for his deportation or for refusal to renew his resident permit or to be watch listed. That is why Parliament through Section 33(1) of the Act listed all the reasons that can form the basis for the deportation of an immigrant. "
[15] In addition, the petitioner cited the following authorities:
[a] Republic v Otieno Kajwang Ex-parte Mohnaud Siras [2009] eKLR in which the court held that a suspect deserves the opportunity to give his side of the story before any adverse action can be taken against him.
[b] Ernst & Young LLP v Capital Market Authority & Another [2017] eKLR in which it was held:
"…t he respondent herein is required to observe and accord persons under investigation and or any person likely to be adversely affected by the decision a fair process and in particular is required to adhere to the principles of natural justice and comply with the provisions of Article 50(1) and 47 of the constitution."
[c] Suchan investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR where the Court of Appeal held that the right to be heard is indisputable where the interest that gives rise to the right is a legal right or interest.
[d] Republic v minister of state for Immigration and Registration of Persons, Ex-Parte C O [2013] eKLR where the learned Judge opined at paragraph 33 of his judgment that the courts are empowered to investigate allegations of abuse of power and improper exercise of discretion.
[16] The petitioner also relied on Article 2(5) and (6) of the Constitution as well as Articles 12 and 13 of the International Convention for Civil and Political Rights (ICCPR) for the submission that the respondents were obliged to observe the above provisions of ICCPR to ensure that, as an alien from another state party, he was accorded fair treatment; and that any decision to expel him or to remove him from Kenya was done in strict adherence of the rule of law. Accordingly, the petitioner prayed that the Petition be allowed as prayed and the orders sought granted, including the quashing of the decision of the 2 nd respondent.
[17] It appears the respondents did not file their submissions in respect of the Petition. On record are written submissions addressing the Amended Notice of Motion dated 21 st March 2024. I have nevertheless taken into consideration their averments as set out in their Replying Affidavit. I have likewise given careful thought to the petitioner’s case, including his written submissions and the authorities he relied on in support of those submissions.
[18] The agreed facts are that the petitioner is a Ghanaian who, at the time of filing the Petition, was resident in Kenya. He had a valid passport indicating that he had travelled in and out of Kenya on various dates. His Visitor’s Pass had also been extended to 18 th June 2024. He annexed copies of these documents to his Further Affidavit sworn on 21 st March 2024. The plaintiff also proved that he is married to a Kenyan, one Tamasha Jiwe. He proved this by annexing their Certificate of Marriage to his Supporting Affidavit.
[19] The petitioner adverted to incidents of harassment, not only by his landlady, but also by the Police; and in their Replying Affidavit, the respondents conceded that they conducted searches at the petitioner’s place of residence in Bombolulu before the petitioner availed himself at the DCI, Coastal Region Headquarters on 30 th November 2023. That was the date he was informed that he had been declared a prohibited immigrant. He was then detained pending deportation. The petitioner was evidently deported, going by the documents marked DAL-5a, DAL-5b annexed to the respondent’s Replying Affidavit. He nevertheless returned to Kenya thereafter and his presence brought to the attention of the Police in the month of January 2024.
[20] The respondents averred, at paragraphs 14 to 21 that the petitioner remains a prohibited immigrant; there being nothing to demonstrate that the 2 nd respondent’s declaration had been reversed. They also averred that the petitioner’s passport had no entry stamp proving that his return was sanctioned by the Immigration Department. In the premises, the issues for determination herein are:
[a] Whether in the circumstances the petitioner’s freedom of movement and right to privacy have been breached and are threatened with further breach:
[b] Whether the petitioner is entitled to the reliefs sought by him in the Petition dated 11 th March 2024.
[21] In determining the two issues it must be borne in mind that the legal burden of proof is on the petitioner. Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya is explicit that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
[22] Likewise, Section 108 of the Evidence Act provides that:
The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
[23] In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334, the Court of Appeal had the following to say in respect of the general position at law in respect of the burden of proof:
“…As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act...”
[24] Similarly, in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) the Supreme Court held:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[25] It is equally instructive to take into consideration the following excerpt from the decision of the Supreme Court of Canada in R v Morin [1992] 1 SCR 771, which was cited with approval by the Court of Appeal in Julius Kamau Mbugua v Republic [2010] eKLR:
“The general approach in a determination as to whether the right has been denied is not by the application of mathematical or administrative formula but rather by a judicial determination balancing the interest which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay.”
[26] The right to privacy is provided for in Article 31 of the Constitution in the following terms:
Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
[27] The fundamental freedom of movement is enshrined in Article 39 of the Constitution. The provision states:
(1) Every person has the right to freedom of movement.
(2) Every person has the right to leave Kenya.
(3) Every citizen has the right to enter, remain in and reside anywhere in Kenya .
[28] As correctly pointed out by counsel for the petitioner in his written submissions, the right to freedom of movement is also the subject of Article 12 of the ICCPR, a convention applicable to Kenya by virtue of Article 2(6) of the Constitution, which provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. To that end, Article 12 provides that:
(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
(2) Everyone shall be free to leave any country, including his own.
[29] From the evidence presented herein, while in Kenya, the petitioner moved freely and lived in residences of his own choice. He said he initially lived in Mtwapa area but had to move to Bombolulu area after a disagreement with his Mtwapa landlady. What the petitioner seemed to be aggrieved about was that, after he moved to Bombolulu, the Anti-Narcotics Unit of the Directorate of Criminal Investigations (DCI) conducted several raids at his home, damaged his property and threatened him with arrest and prosecution.
[30] The petitioner also mentioned that the Department of Immigration had also threatened him, not only with prosecution but also deportation. In his view, the threats are illegal because:
[a] He had not committed any offence;
[b] He had not been informed of any reason or cause for his arrest or the threats of arrest.
[31] It is significant however that neither Article 31 nor 39 of the Constitution is non-derogable. Article 24 stipulates that:
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
[32] Accordingly, the respondents placed reliance on the Kenya Citizenship and Immigration Act (the KCIA) and averred that the subject Declaration was made by the 2 nd defendant pursuant to Section 33(1) of the KCIA. That provision states as follows in its relevant parts:
(1) For purposes of this Act, a prohibited immigrant is…
(d) a person who is reasonably suspected to be engaged in or facilitates the trafficking of narcotics, prohibited, controlled or banned substances;
…
(g) a person in respect of whom there is in force an order made or deemed to be made under section 43 directing that such person must be removed from and remain out of Kenya;
…
(w) a person who has been repatriated and or removed from Kenya under any lawful order.
[33] The respondents averred, and this averment was uncontested, that the Anti-Narcotics Unit, Coastal Region, received several intelligence reports of incidents of drug trafficking at night clubs within Mtwapa and Nyali areas involving the petitioner. Investigations were conducted whereupon detectives visited the petitioner’s residence within Mtwapa at 2.00 p.m. on 25 th August 2023, but he refused to open the door. Thereafter, the detectives got to learn that the petitioner had relocated to Bombolulu; a move they concluded was intended to evade arrest.
[34] The provision above is plain; it suffices that there be reasonable suspicion to warrant deportation. The evidence presented herein shows that, upon the petitioner being declared a prohibited immigrant by the 2 nd respondent on 9 th November 2023, detectives visited his house on 29 th November 2023 but did not find him at home. Consequently, they served the caretaker of the premises with summons on behalf of the petitioner, requiring him to attend their office for further action. The petitioner obeyed and availed himself on 30 th November 2023 in the presence civil rights activists. He was informed of the deportation order and the reason therefor, after which he was placed in custody pending deportation as a prohibited immigrant, and was in fact deported on 4 th December 2023.
[35] The respondents backed up their assertions by annexing copies of the impugned declaration as well as copies of the summons (Annexures DAL-2 and DAL-3. More importantly, the respondents annexed a copy of the Ticket for the petitioner’s travel from Nairobi to Accra, Ghana, on 4 th December 2023.
[36] The petitioner conceded, at paragraph 11 of his Supporting Affidavit that police officers attached to the Anti-Narcotics Unit raided his house on the 29 th November 2023 in his absence; and that he left the country on 4 th December 2023. A copy of his Passport confirms, not only that he left Kenya on the 4 th December 2023, but also that his Visitor’s Pass expired on 3 rd December 2023. The question to pose then is under what circumstances did the petitioner return to Kenya, and whether under those circumstances he can challenge the Declaration of 9 th November 2023.
[37] The respondents’ contention was that there was no indication on the petitioner’s Passport to confirm re-entry into the country after his deportation on 4 th December 2023. It is indeed true that in his initial affidavit there was no such indication in the copies of the petitioner’s Passport attached to his initial affidavit. However, the record shows that the omission was immediately cured by the petitioner. He did so by filing a Further Affidavit sworn on 21 st March 2024 in response to the respondents’ assertions. He also annexed thereto copies of the relevant pages of his Passport which show that on 19 th March 2024 his Visitor’s Pass was extended to 18 th June 2024 at the Mombasa Immigration office.
[38] Nevertheless, there is an unexplained gap because, at paragraph 14 of his Affidavit in Support of Petition sworn on 11 th March 2024, the petitioner averred that he left the country on 4 th December 2023 and returned on 19 th December 2023.There is nothing to show under what authority he re-entered and stayed in Kenya between 19 th December 2023 to 19 th March 2024 when his Visitor’s Pass was extended. Section 34 of the KCIA is explicit that:
(1) A person who is not a citizen of Kenya or an asylum seeker shall not enter or remain in Kenya unless she or he has a valid permit or pass.
(2) Subject to the provisions of this section, the presence in Kenya of any person who is not a citizen of Kenya shall, unless otherwise authorized under this Act, be unlawful, unless that person is in possession of a valid work permit or a valid residence permit or a valid pass.”
[39] More importantly, Section 33(5) provides:
Subject to section 34 the entry into and residence in Kenya of a prohibited immigrant or an inadmissible person shall be unlawful and a person seeking to enter Kenya shall, if he or she is a prohibited immigrant or inadmissible person, be refused permission to enter or transit through Kenya, whether or not he or she is in possession of any document which, were it not for this section, would entitle him or her to enter or transit through Kenya.
[40] Clearly therefore, the petitioner cannot claim to be lawfully present in Kenya under the circumstances.
[41] Though the petitioner relied on Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act, those provisions do not avail him given that, as a prohibited immigrant, he returned to Kenya in unclear circumstances and has been staying in Kenya unlawfully. Notably it is plain from the Replying Affidavit that the respondents’ intention was to subject the petitioner to investigations and due process as at the time he filed this Petition.
[42] Section 35 of the National Police Service Act lists their specific functions to include:
(a) collect and provide criminal intelligence;
(b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others;
(c) maintain law and order;
(d) detect and prevent crime;
(e) apprehend offenders;
(f) maintain criminal records;
(g) conduct forensic analysis;
(h) execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157(4) of the Constitution;
(i) coordinate country Interpol Affairs;
(j) investigate any matter that may be referred to it by the Independent Police Oversight Authority; and
(k) perform any other function conferred on it by any other written law.
[43] Additionally, Section 51 of the National Police Service Act provides that:
(1) A police officer shall—
(a)obey and execute all lawful orders in respect of the execution of the duties of office which he may from time to time receive from his superiors in the Service;
(b)obey and execute all orders and warrants lawfully issued;
(c)provide assistance to members of the public when they are in need;
(d)maintain law and order;
(e)protect life and property;
(f)preserve and maintain public peace and safety;
(g)collect and communicate intelligence affecting law and order;
(h)take all steps necessary to prevent the commission of offences and public nuisance;
(i)detect offenders and bring them to justice;
(j)investigate crime; and
(k)apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient ground exists.
[44] The mandate of the 3 rd respondent to make decisions on whether or not to prosecute and to conduct the prosecutorial function is also provided for in the Constitution at Article 157 . Sub-Article (10) thereof states that:
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
[45] It is important to appreciate however that the respondent’s mandate is not unquestionable. Article 157(11) provides that in exercising the powers conferred on him, the respondent shall have regard to the interests of the administration of justice and the need to prevent and avoid abuse of the legal process . This is a constitutional imperative that the respondent must always have in mind whenever exercising his constitutional mandate. Consequently, whereas the Constitution confers on the National Police Service the mandate to investigate and the Respondent to prosecute, they must act in good faith and in the public interest.
[46] Thus, the general position was aptly stated in Kites Technical Limited v Police & 2 others; Kenya Power & Lighting Company Limited (Interested Party) (Constitutional Petition E041 of 2021) [2021] KEHC 204 (KLR) (10 November 2021) (Ruling) , as follows:
“The police have a statutory and constitutional duty to investigate crime. Failure to investigate is a gross dereliction of duty which can have the most far-reaching consequences for the complainant, the suspect and the criminal justice system. A wrong decision not to investigate or failure to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system. For victims and their families, a decision not to investigate crime or not to prosecute can be distressing. The victim, having made what is often a very difficult and occasionally traumatic decision to report a crime, may feel rejected and disbelieved…”
[47] Authorities abound to show that the best forum for testing the sufficiency or otherwise of evidence is the trial court itself. For instance, in Erick Kibiwott & 2 Others v Director of Public Prosecution & 2 Others [2014] eKLR it was held that:
“…In determining the issues raised herein the Court will therefore avoid the temptation to unnecessarily stray into the arena exclusively reserved for the criminal or trial court. In dealing with the merits of the application, it is trite that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. There mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings…”
[48] Additionally, and more importantly, Article 50(1) of the Constitution provides that:
“(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
[49] Needless to mention that the essence of Article 50(1) of the Constitution is the concept of a fair hearing; and that it envisages the context of the fair hearing to be a public hearing before “…a court or, if appropriate, another independent and impartial tribunal or body…” in which the accused person is afforded all the safeguards set out in Article 50(2) of the Constitution . It is for the foregoing reasons that it is always preferable that disputes about facts, such as those raised herein by the petitioner as to his innocence in respect of the suspicions that he was traff
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