' [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. <><>[> <>> [><><>[> <>> [><><>[>> > >> >> ><><>[> >> ><><>[> >> >> >> ><><>[> >> ><><>[> >> ><><> [> ><><> [> >> ><><>[> >>> ><><>(><><>(><><>[>> >> > ><><>><><>[>>>[><><>“…><><>[>> >(><><>“>> ><><>[>> >> [>> [><><>“><><>[> >> ><><>><><> (><><> (><><> (><><> (><><>[>>> ><><> (><><>(><><>(>.<><>[>>> >> >> ><> <>(><><> (><><>[> ><><>[> ><><>[> ><><>[> ><><>[>>> >> ><><>(><><>(><><>(><><>(><><>(><><>(><><>[>>>>> >> ><><>(><><>(><><>…<><>(><><>… <><> (><><>[>>> ><><>[> >> >> >> >> >> ><><>[> >> ><><>[> >> >> >> >> >> ><><>[> >> >> >> >> ><><>[>>> >> >> >> >> >>> > ><><>(><><>(><><>[> >> ><><>><><>[> ><><>[>>> >>><><>[> >> ><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>[>> <>> >> ><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>[>>> >>. <>> ><><>(><><>[> >> >><>. > ><><>[>>>, ><><>“><><>[> >>[> > ><><>“…><><>[> >>> >><><>“(><><>[>>> >“…> >> >>. >> >> >> >><><>[>>>[> ><><>“><><>[>><><>“>>, ><><>> Constitution , criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. We reproduce the words of this court in Hussein Khalid and 16 others v Attorney General & 2 others [ supra ] as follows;
“[105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Emphasis added]
[52] It is plain from the foregoing that the petitioner has failed to show that his fundamental freedom of movement and right to privacy have been violated and therefore that he is not entitled to any of the reliefs sought by him. His Petition is hereby dismissed.
[53] With respect to costs, the guiding principles were discussed by the Supreme Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR as follows:
“[14] So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:
“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
…
[22] Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant…”
[54] In the circumstances hereof, it is hereby ordered, in the discretion of the Court, that each party bears own costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19 TH DAY OF SEPTEMBER 2025
'
[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. <><>[> <>> [><><>[> <>> [><><>[>> > >> >> ><><>[> >> ><><>[> >> >> >> ><><>[> >> ><><>[> >> ><><> [> ><><> [> >> ><><>[> >>> ><><>(><><>(><><>[>> >> > ><><>><><>[>>>[><><>“…><><>[>> >(><><>“>> ><><>[>> >> [>> [><><>“><><>[> >> ><><>><><> (><><> (><><> (><><> (><><>[>>> ><><> (><><>(><><>(>.<><>[>>> >> >> ><> <>(><><> (><><>[> ><><>[> ><><>[> ><><>[> ><><>[>>> >> ><><>(><><>(><><>(><><>(><><>(><><>(><><>[>>>>> >> ><><>(><><>(><><>…<><>(><><>… <><> (><><>[>>> ><><>[> >> >> >> >> >> ><><>[> >> ><><>[> >> >> >> >> >> ><><>[> >> >> >> >> ><><>[>>> >> >> >> >> >>> > ><><>(><><>(><><>[> >> ><><>><><>[> ><><>[>>> >>><><>[> >> ><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>[>> <>> >> ><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>(><><>[>>> >>. <>> ><><>(><><>[> >> >><>. > ><><>[>>>, ><><>“><><>[> >>[> > ><><>“…><><>[> >>> >><><>“(><><>[>>> >“…> >> >>. >> >> >> >><><>[>>>[> ><><>“><><>[>><><>“>>, ><><>> Constitution , criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. We reproduce the words of this court in Hussein Khalid and 16 others v Attorney General & 2 others [ supra ] as follows;
“[105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Emphasis added]
[52] It is plain from the foregoing that the petitioner has failed to show that his fundamental freedom of movement and right to privacy have been violated and therefore that he is not entitled to any of the reliefs sought by him. His Petition is hereby dismissed.
[53] With respect to costs, the guiding principles were discussed by the Supreme Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR as follows:
“[14] So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:
“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
…
[22] Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant…”
[54] In the circumstances hereof, it is hereby ordered, in the discretion of the Court, that each party bears own costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19 TH DAY OF SEPTEMBER 2025
'