Introduction:
1. In the Petition dated 27 th May2024, the Petitioner challenges his deportation by the 1 st and 2 nd Respondents in the month of March 2022 and the subsequent listing as ‘a prohibited immigrant’ contending that these actions were done in fragrant disregard of the relevant statutory provisions and in breach of his right to fair administrative action under Article 47 of the Constitution hence unlawful and unconstitutional.
2. The Petitioner thus seeks the following reliefs:
i) A Declaration that the Petitioner's constitutional rights have been infringed by the 1st and 2nd Respondent.
ii) Declaration that the 1st and 2nd Respondent's decision was procedurally unfair and purposefully calculated to prejudice the legal rights of the Petitioner.
iii) An order quashing the 1st and 2nd Respondent's decision to deport the Petitioner and allow the Petitioner permanently back into the country.
iv) A permanent injunction restraining the Respondents by their agent, servants or anyone acting under them from arresting or deporting back the Petitioner upon his re-entry into the country.
v) An order for mandamus directing the 1st and 2nd Respondent to remove or otherwise cancel the Petitioner's name in the List of Prohibited Immigrants permanently within 30 days.
vi) A permanent injunction prohibiting the 1st, 2 nd , 3rd and 4th Respondents from preventing the Petitioner from leaving, returning and remaining in the Republic of Kenya.
vii) That costs of this petition be provided for.
Petitioner’s Case
3. The Petitioner, SANJAY GUPTA RADHEYLAL , an Indian national swore that he moved to Kenya in the year 2009.
4. He was issued with a permanent residence certificate in the year 2018 and on 3 rd November 2021, he lodged his application for citizenship.
5. He stated that the 1st Respondent approved the application for the citizenship on the 17t h of November 2023 and he was invited to was to collect the Citizen Certificate. However, by the time his approval was being officially communicated, he had already been maliciously deported in March, 2022, which was, over a year earlier.
6. Th e Petitioner there was malice in the actions of the 1st R es p on d e nt in deporting him considering that more than a year later after deporting him, the Respondent was approving his citizenship application stating that if he had truly been deported on valid reasons; the 1st Respondent would not have granted the approval.
7. The Petitioner deposed that he has was not informed of any reasons for his deportation was not served me with a Deportation Order prior to his deportation hence the action of deporting him by the 1 st
Respondent was procedurally unfair, unlawful and unconstitutional.
8. He expressed fears that unless the unlawful and unconstitutional deportation is lifted, he may never come to Kenya which has been his home since 2009.
Respondent’s Case
9. The Respondent’s filed a replying affidavit sworn on 22 nd September, 2025 by RONNIE AKEDI, an Assistant Director, Immigration Services working in the Compliance and Enforcement Division of the Directorate of Immigration under the Ministry of Interior and National Administration.
10. He stated that the 1 st and 2 nd Respondents’ mandate includes enforcement and ensuring compliance with The Constitution of Kenya, the Kenya Citizenship and Immigration Act, and other enabling legislations.
11. He confirmed that the Petitioner was previously a permanent resident in Kenya which gave him legal status allowing him to reside in Kenya at the time but he ceased being a Permanent resident by operation of law - Section 39 (c)- of the Kenya Citizenship and Immigration Act, 2011 after being declared a Prohibited Immigrant and removed pursuant to a removal order that was issued against him by the 2 nd Respondent.
12. He clarified that the Petitioner had in fact had applied to be registered as a Citizen of Kenya but this process was never completed and was thus neither issued with a Certificate of registration as a Kenyan citizen nor did he take the "Oath of allegiance" which are pre-conditions for conferment of citizenship hence the Petitioner continues to be a foreigner. He disputed that the Petitioner was at any time requested to go and collect the Citizenship Certificate. On the contrary, the Respondent stated that the Petitioner was merely sent a notification requiring him to visit the Immigration office for further administrative procedures as part of the application process as evidenced by a copy of the notification - exhibit “RAl".
13. According to the Respondent, during the pendency of the citizenship application by the Petitioner, the 1 st Respondent received the National Intelligence Service Report marked "Secret" that indicated that the Petitioner was involved in international criminal network engaging in international economic crimes and that at the material time, the Petitioner was a fugitive from his home country India where he was wanted for numerous economic crimes including tax evasion and liability.
14. The Respondent deposed that transnational economic crimes pose a grave threat to the national interest, national security, stability and prosperity of Kenya. He stated that such crimes implicate Article 238 (1) of the Constitution. Consequently, when these facts came to the attention of the Respondents, it was while the process of the Petitioner’s application for citizenship was ongoing, and the 2 nd Respondent was obliged to exercise the powers conferred by Section 33 (2) (g) of the Citizenship and Immigration Act, 2011 having been satisfied that the Petitioner posed a threat to the national security.
15. The Respondent described the allegation by the Petitioner that he did not know the reason for his deportation as deceptive insisting that he was informed of the reasons for his removal and being declared a Prohibited Immigrant and served with the removal order.
16. The Respondent averred that it is premature and ill-advised for the Petitioner to approach this Honorable as a person who is declared prohibited and inadmissible immigrant should first direct the matter to the Cabinet Secretary through the "Prohibited Immigrants Committee" as contemplated by Section 33 (8) of the Kenya Citizenship and Immigration Act, 2011. The Respondent thus asserted that the Petitioner has not exhausted all administrative remedies as he has not presented his case to the relevant Cabinet secretary through the ‘Prohibited Immigrants Committee’ under Section 33 (8) of the Kenya Citizenship and Immigration Act, 2011 and therefore the entire petition ought to be dismissed "ab initio".
17. The Respondent urged the Court, for the sake of national interest and national security, the Petitioner herein should not be allowed to return to Kenya. The Respondent explained that the under the ‘ doctrine of sovereignty of Nations ’ the right to enter and live in Kenya is the preserve of Kenya citizens only and that all foreigners are subject to the National immigration laws of Kenya. The Respondent thus asserted it is misplaced for the Petitioner to imagine that he has innate legal right to enter and reside in Kenya.
18. The 1 st Respondent affirmed that it has been conferred with discretionary statutory power to vet and screen persons intending to enter and reside in Kenya and may deny entry and residence, if necessary, hence the Petition does not disclose any justiciable controversy.
SUBMISSIONS
Petitioner Submissions
19. Gitonga Mureithi & Company Advocates filed written submissions dated 20/1/2025 and Supplementary submissions dated 22/10/2025.
20. Counsel briefly reviewed the facts upon which the Petition is anchored and then narrowed his submissions to the following issues:
(a) Whether the deportation violated the Petitioner’s constitutional rights and freedoms.
(b) Whether the deportation of the Petitioner complied with the due process requirements under the Kenya Citizenship and Immigration Act, 2011, and other relevant legal provisions.
(c) Whether the Petitioner is entitled to the reliefs sought.
21. On the issue of whether the deportation violated the Petitioner’s constitutional rights and freedoms, Counsel alluded to Article 47 of the Constitution and contended that the Respondents violated the Petitioner's right to administrative justice by failing to furnish him with a deportation order outlining the reasons for their action. Further, he cited Section 4 (2) of the Fair Administration Actions Act 2015 and submitted that by neglecting and/or refusing to inform the Petitioner of the reasons for his deportation or afford him an opportunity to controvert, the 1st and 2nd Respondents violated his right to a fair administrative action and fair hearing.
22. Counsel argued that the Replying affidavit of the Respondent sworn by Ronnie Akedi contained profound internal contradictions in which in Paragraph 8, he stated the Petitioner’s deportation was predicated upon a “National Intelligence Service report” expressly marked “Secret” and hence withheld from disclosure of its contents yet in paragraph 11 of the same affidavit he claims that the Petitioner was “duly informed of the reasons” for his removal.
23. Counsel maintained that the deportation was premised on a secret report which the Petitioner was neither given particulars of nor afforded an opportunity to controvert hence amounted to abuse of the legal process and a gross violation of his rights and fundamental freedoms under Articles 47 and 50 of the Constitution. He buttressed the submission that deportation cannot be justified when material upon which it is based is concealed from the affected person and the Court through judicial precedents, locally and internationally.
24. He relied on the decision of Judicial Committee of the Privy Council, in the cerebrated case of Kanda v Government of Malaya [1962] AC 322, where Lord Denning at page 337 observed:
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”
25. Further reliance was placed on R v Secretary of State for the Home Department, ex parte Hosenball [1977] 1 WLR 766 where Lord Denning, speaking for the Court of Appeal stated as follows regarding security dossiers as pg.783:
“This is a case of a man’s liberty. He is to be deported. He is told nothing about it except in the most general terms. He is not confronted with the evidence against him. He is not allowed to know the witnesses, or what they have said. In truth he has not had a fair hearing at all.”
26. Further reliance was placed on United States Supreme Court case of Greene v McElroy 360 U.S. 474 (1959) in which Chief Justice Warren held at page 496:
“In the absence of explicit authorization from either the President or Congress, we are unwilling to sanction procedures whereby a government agency may deprive a person of his livelihood, by invoking security requirements, without giving him the chance to confront and cross-examine witnesses against him. Traditional concepts of due process forbid condemnation on the basis of secret evidence.”
27. Moving on with international jurisprudence, the High Court of Australia in Plaintiff M47/2012 v Director General of Security [2012] HCA 46, Justice Gummow , at paragraph 164, of the judgment held:
“The adverse security assessment was communicated neither to the plaintiff nor to his legal representatives. This failure was fatal. It is contrary to the minimum content of procedural fairness to allow a person’s liberty or immigration status to be determined by material that is never disclosed to them. Fairness requires disclosure sufficient to permit a meaningful opportunity to respond.”
28. In the Kenyan context, counsel cited the case of Republic v Minister of State for Immigration and Registration of Persons ex parte C.O. [2013] eKLR , where the Court held:
“The reliance on so-called secret reports which are never furnished to the affected person or even to the court is inimical to the constitutional requirement of fair administrative action. No person may be condemned unheard on the basis of undisclosed material.”
29. Further, Muslims for Human Rights (MUHURI) v Attorney General [2012] eKLR where the Court stated:
“The State cannot, by mere recourse to claims of national security, justify the exclusion of affected persons from knowing the case they have to meet. Secrecy, without more, is an invitation to arbitrariness and abuse.”
30. Counsel submitted that the Petitioner was denied an opportunity to communicate with his advocate by the 1st and 2nd Respondent hence violated his right to a fair hearing under Articles 50 and 49. In addition, Counsel submitted that in breach of Article 29 of the Constitution, the Petitioner was held in conditions that he was unable to access basic needs such as water and food which constituted inhuman and degrading treatment.
31. On violation of procedural safeguards provided by the Kenya
Citizenship and Immigration Act, 2011; Counsel; submitted that while the 1st and 2nd Respondents are vested with the power to deport individuals, such authority must be exercised in strict compliance with the laid down statutory provisions. Counsel made reference to Section 43 (1) of the Kenya Citizenship and Immigration Act, 2011, which states:
“(1) The Cabinet Secretary may make an order in writing , directing that any person whose presence in Kenya was , immediately before the making of that order, unlawful under this Act or in respect of whom a recommendation has been made to him or her under section 26A of the Penal Code (Cap. 63), shall be removed from and remain out of Kenya either indefinitely or for such period as may be specified in the order.”
32. He argued that the above section makes it clear that where the presence of a person in Kenya is unlawful, the Cabinet Secretary is to make an order in writing directing the removal of such persons. He maintained that the Petitioner, to date, has never been furnished with a deportation order outlining the reasons for his deportation.
33. He reiterated that the 1 st Respondent had conceded that it had granted Permanent Residency to the Petitioner and submitted that this being the case, such conferred legal status cannot lightly be revocable merely at the whims of the executive fiat. He argued that termination of such status can only be occur in strict compliance with the statute. Court further argued that there is no evidence that the Petitioner’s permanent residence was revoked.
34. In support of this contention, Counsel relied on the House of Lords decision in, Ridge v Baldwin [1964] AC 40 , where it was held that administrative bodies exercising statutory powers must respect natural justice when vested rights are at stake. Lord Reid at page 65 stated:
“The body which has power to deprive a man of his office is bound to act judicially; and to deny him the opportunity of being heard is a plain breach of natural justice. The fact that Parliament gave the power without prescribing the procedure does not mean that it can be exercised arbitrarily.”
35. Mr. Gitonga contended that even Kenyan courts have consistently held that even in deportation cases, Article 47 applies to guarantees fair administrative action that is lawful, reasonable and procedurally fair, and that no person may be condemned unheard or removed from the country on the basis of secret, undisclosed material. Reliance was placed on Oumarou Moumouni Ali v Director General, Kenya Citizens & Foreign Nationals Management Services [2020] eKLR , where the High Court held as follows:
“The decision to revoke the petitioner’s lawful status, without furnishing him with a deportation order or reasons, is a nullity. Immigration status cannot be extinguished by stealth or by vague reference to ‘operation of law .’ The Constitution demands transparency, fairness and adherence to procedure.”
36. He thus submitted that the Respondents’ reliance on the bare phrase “operation of law” without producing a formal deportation order under Section 43 of the Kenya Citizenship and Immigration Act collapses into illegality.
37. Further, Mr. Gitonga submitted that the failure by the Respondent to provide the Petitioner with the reasons for the deportation had deprived him of the opportunity to challenge the ensuing decision through an appeal, as provided for by Section 57 of the Kenya Citizenship and Immigration Act, 2011. The Petitioner relied on the case of Grace Dola & another v Director, Directorate of Criminal Investigations & 2 others [2021] eKLR quoting the case of Republic v Minister of State for Immigration and Registration of Persons Ex-Parte C.O. [2013] eKLR, where the court stated: -
“The requirement in removing an alien from a state’s territory, as provided under the above conventions and in accordance with the constitutional provisions contained in Article 47, is that such removal should be ‘in accordance with the law’, that due process should be followed.”
38. On whether the Petitioner should be granted the reliefs sought, Counsel submitted that the Respondents’ actions subjected the Petitioner to undue hardship, uncertainty, and psychological distress. They deported the Petitioner without furnishing him with reasons. This omission, he argued subjected him to further prejudice as he cannot appeal the decision to deport him under Section 57 of the Kenya Citizenship and Immigration Act, 2011. The Petitioner continues to reside in India yet he is a Kenyan citizen with a family and business in Kenya.
43. He thus underscored that the deportation was unlawful and procedurally irregular. According to Counsel, the Petitioner prays for an opportunity to return to his home in Kenya and see his family again from which he has been separated since 2022 and to oversee the running of his business. Counsel relied on the case of Grace Dola (Supra) quoting the case of Republic v Minister of State for Immigration and Registration of Persons Ex-Parte C.O. [2013] eKLR, where the Court reasoned as follows:
“I would hold that it is contrary to law that the Minister should have the Petitioner, a family man living in Kenya as his domicile, doing normal business and possessed of relevant certificates of legitimate presence, arrested and detained without any hearing at all, deprived of his own properties, extracted from his family environment, detained for long, and then deported. Such actions are telltale instances of violation of the fundamental rights of the individual as set out in detail in Chapter V of the Constitution.”
39. Counsel submitted that in case the Petitioner committed any wrongdoing to warrant his deportation, he is entitled to be subjected to the due process of the law.
40. Countering the Respondents’ submission that the Petitioner has failed to exhaust the administrative remedies under the Citizenship and Immigration Act for failing to present the matter of his immigration status to the ‘Prohibited Immigrants Committee’ , Counsel submitted that this contention cannot be made where it is apparent that the internal remedies are ineffective, illusory, biased, or constitutionally inadequate as was held in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR.
41. Further, in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR it where it was held that it is within the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit especially where the Petition raises genuine violations not merely framed in constitutional language to evade procedure.
42. Counsel was unequivocal that in the present case, the alternative remedy is plainly futile. He reiterated that the deported on the strength of a “National Intelligence Service” report marked “Secret” thus expecting him to appeal before a committee about allegations he has never seen is to demand a meaningless ritual rather than a remedy.
43. Further, Counsel argued that the Petition directly impugns the deportation as a violation of Articles 47 (Fair Administrative Action) and 50 (Fair Hearing) and as such, this Court has jurisdiction under Article 165(3)(b) to determine the matter. He cited the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) where it was held that where the impugned administrative process itself offends the Constitution, this Court is not merely empowered but duty-bound to intervene.
44. Furthermore, Counsel observed that this Honourable Court, in its ruling dated 15th May 2025, considered and dismissed the Respondents’ Preliminary Objection founded on Section 9(2) of the Fair Administrative Action Act and Section 57 of the Kenya Citizenship and Immigration Act. The Court expressly held that the Petitioner had taken reasonable steps to exhaust internal mechanisms, including addressing the Chairperson of the Review and Appeal Committee by letters dated 16th and 25th September 2024, which bore official acknowledgment stamps, but received no response. The Court concluded that the Respondents’ silence rendered the internal mechanism ineffective hence the matter cannot be reopened.
45. Regarding the Respondents’ contention that it relied on a “secret” dossier and Section 33(2)(g) of the Kenya Citizenship and Immigration Act, which permits the Cabinet Secretary to declare a person inadmissible on grounds of national security or national interest, Counsel argued that it cannot be used to justify violation of constitutional guarantees on due process. He submitted that whereas Section 33(2)(g) empowers the Cabinet Secretary to declare a person inadmissible on grounds of national interest, the law demands that such actions strictly comply with due process, including service of notice, disclosure of reasons, and opportunity to be heard and this Court had in its ruling underscored that even in cases involving national security or prohibited-immigrant listings, such actions are still bound by Articles 10 and 47 of the Constitution hence such power is to be exercised judicially, rationally, and fairly as was held in Republic v Minister of State for Immigration and Registration of Persons ex parte C.O. [2013] KEHC 5766 (KLR), where the Court in paragraph 33 of the judgment stated:
“To hold that the Minister is the sole judge when it comes to the exercise of discretion would be to throw the rule of law out of the window. When Constitutional safeguards provided under Article 47 of the Constitution are destroyed by being whittled and judicial officers are put at the sufferance of the Executive or at the whims of the Legislature, the independence of the judiciary is the first victim. It must always be remembered that under Article 25 of the Constitution, one of the rights and fundamental freedoms which cannot be limited is the right to a fair trial…….”
46. Counsel termed as inaccurate the Respondents’ contention that the Petitioner was informed of the reasons for declaring him a prohibited immigrant and served with a removal order asserting that no such notice or reasons were ever furnished.
Respondents’ Submissions
47. The Respondents filed their written submissions dated 16 th October, 2025 through Ms. P.A Chibole, Principal State Counsel .
48. The Respondents commenced by briefly outlining the foundational basis of the Petitioner’s case against them as well as the Respondents rebuttal.
49. The Respondents thus identified and submitted on the following issues:
a) Whether there is any violation of rights by the Respondents against the petitioner;
b) Whether the Petitioner has exhausted all available administrative and internal remedies before moving to a court of law;
c) Whether the petitioners are entitled to the reliefs sought
50. On the issue of whether the Respondents violated the rights of the Petitioner, Ms. Chibole submitted that no constitutional rights of the Petitioner were violated by the Respondents as alleged.
51. Ms. Chibole argued that under Article 24 of the Constitution, the rights Petitioner complains were violated by the Respondents can be limited as they are not among the rights enshrined under Article 25 of the Constitution as non-derogable rights.
52. She argued that under Section 33 (1) of the Kenya Citizenship and Immigration Act, 2011 (Cap. 170), prohibited immigrants are foreign nationals who are barred from entering or remaining in Kenya due to various serious legal, security, health, or public order concerns and includes individuals who have committed or are suspected of committing serious crimes such as human trafficking, terrorism, money laundering, war crimes, or who threaten national security. Additionally, any person whose presence is unlawful or has an order for removal is classified as a prohibited immigrant.
53. Ms. Chibole contended that the 2nd Respondent acted as mandated in law under Section 33 (2) (g) of the Kenya Citizenship and Immigration Act, 2011 to declare any foreigner to be inadmissible on grounds of national security national interest.
54. Furthermore, the Petitioner was duly informed of the reasons behind his declaration as a Prohibited Immigrant and consequently a removal order and the order was duly served and therefore the petitioner cannot pretend to be unaware of his removal from the country. The Respondents relied on the case of Ebuka v Director of Immigration Services & 2 others (Petition E256 of 2022) [2025] KEHC 4138 (KLR) (Constitutional and Human Rights) ( 27 March 2025) (Judgment), where the court stated as follows:
It is thus my finding from the foregoing that in the present case, the actions and decision of the Cabinet Secretary in the Ministry of Interior and Coordination of National Government were lawful, as he acted within his statutory mandate, and has also demonstrated a good reason to place the Petitioner under a recognized category of prohibited immigrants.’’
55. On the issue of whether the Petitioner exhausted all available administrative and internal remedies before moving to a court of law the Respondents argued that the petitioner lost his permanent residence status when the removal order against him came into force under section 43(1) of the Kenya Citizenship and Immigration Act 2011 which provides as follows:
(1) The Cabinet Secretary may make an order in writing, directing that any person whose presence in Kenya was, immediately before the making of that order, unlawful under this Act or in respect of whom a recommendation has been made to him or her under section 26A of the Penal Code (Cap. 63), shall be removed from and remain out of Kenya either indefinitely or for such period as may be specified in the order.
56. The Respondents argued that the issuance of a deportation order was in exercise of administrative powers of the Cabinet Secretary. Ms. Chibole submitted that Section 33 (8) of the Kenya Citizenship and Immigration Act, 2011, the Cabinet Secretary, may from time to time, review the status of prohibited immigrants and inadmissible persons, subject to the advice of the relevant committee in this case, the Prohibited Immigrant Committee where the petitioner ought to have channelled his grievances before filing a judicial review application.
57. Ms. Chibole argued that the Petitioner ought to have exhausted all the available internal appeal or review mechanisms provided by the Act before approaching the Court. In support, Counsel relied on various judicial decisions including Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR ; which cited with approval R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR , and the Speaker of National Assembly v Karume [1992] KLR 21 in underscoring the that where there are prescribed procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Also relied by Counsel to drive this point home was the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] KECA 304 (KLR), the court upholding the doctrine of exhaustion stated:
“We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various plaintiffs’ disputes had they filed them within the church set up.And there was always the right, acknowledged by the learned Judge, of approaching the courts after exhaustion of the church mechanisms. By failing to do so, and quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially short-circuited the process by filing suits prematurely”.
58. Counsel thus urged this Honourable Court should to allow the appropriate forum, in this case, the Prohibited Immigrant Committee, to address the issues within its ju
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1. In the Petition dated 27 th May2024, the Petitioner challenges his deportation by the 1 st and 2 nd Respondents in the month of March 2022 and the subsequent listing as ‘a prohibited immigrant’ contending that these actions were done in fragrant disregard of the relevant statutory provisions and in breach of his right to fair administrative action under Article 47 of the Constitution hence unlawful and unconstitutional.
2. The Petitioner thus seeks the following reliefs:
i) A Declaration that the Petitioner's constitutional rights have been infringed by the 1st and 2nd Respondent.
ii) Declaration that the 1st and 2nd Respondent's decision was procedurally unfair and purposefully calculated to prejudice the legal rights of the Petitioner.
iii) An order quashing the 1st and 2nd Respondent's decision to deport the Petitioner and allow the Petitioner permanently back into the country.
iv) A permanent injunction restraining the Respondents by their agent, servants or anyone acting under them from arresting or deporting back the Petitioner upon his re-entry into the country.
v) An order for mandamus directing the 1st and 2nd Respondent to remove or otherwise cancel the Petitioner's name in the List of Prohibited Immigrants permanently within 30 days.
vi) A permanent injunction prohibiting the 1st, 2 nd , 3rd and 4th Respondents from preventing the Petitioner from leaving, returning and remaining in the Republic of Kenya.
vii) That costs of this petition be provided for.
Petitioner’s Case
3. The Petitioner, SANJAY GUPTA RADHEYLAL , an Indian national swore that he moved to Kenya in the year 2009.
4. He was issued with a permanent residence certificate in the year 2018 and on 3 rd November 2021, he lodged his application for citizenship.
5. He stated that the 1st Respondent approved the application for the citizenship on the 17t h of November 2023 and he was invited to was to collect the Citizen Certificate. However, by the time his approval was being officially communicated, he had already been maliciously deported in March, 2022, which was, over a year earlier.
6. Th e Petitioner there was malice in the actions of the 1st R es p on d e nt in deporting him considering that more than a year later after deporting him, the Respondent was approving his citizenship application stating that if he had truly been deported on valid reasons; the 1st Respondent would not have granted the approval.
7. The Petitioner deposed that he has was not informed of any reasons for his deportation was not served me with a Deportation Order prior to his deportation hence the action of deporting him by the 1 st
Respondent was procedurally unfair, unlawful and unconstitutional.
8. He expressed fears that unless the unlawful and unconstitutional deportation is lifted, he may never come to Kenya which has been his home since 2009.
Respondent’s Case
9. The Respondent’s filed a replying affidavit sworn on 22 nd September, 2025 by RONNIE AKEDI, an Assistant Director, Immigration Services working in the Compliance and Enforcement Division of the Directorate of Immigration under the Ministry of Interior and National Administration.
10. He stated that the 1 st and 2 nd Respondents’ mandate includes enforcement and ensuring compliance with The Constitution of Kenya, the Kenya Citizenship and Immigration Act, and other enabling legislations.
11. He confirmed that the Petitioner was previously a permanent resident in Kenya which gave him legal status allowing him to reside in Kenya at the time but he ceased being a Permanent resident by operation of law - Section 39 (c)- of the Kenya Citizenship and Immigration Act, 2011 after being declared a Prohibited Immigrant and removed pursuant to a removal order that was issued against him by the 2 nd Respondent.
12. He clarified that the Petitioner had in fact had applied to be registered as a Citizen of Kenya but this process was never completed and was thus neither issued with a Certificate of registration as a Kenyan citizen nor did he take the "Oath of allegiance" which are pre-conditions for conferment of citizenship hence the Petitioner continues to be a foreigner. He disputed that the Petitioner was at any time requested to go and collect the Citizenship Certificate. On the contrary, the Respondent stated that the Petitioner was merely sent a notification requiring him to visit the Immigration office for further administrative procedures as part of the application process as evidenced by a copy of the notification - exhibit “RAl".
13. According to the Respondent, during the pendency of the citizenship application by the Petitioner, the 1 st Respondent received the National Intelligence Service Report marked "Secret" that indicated that the Petitioner was involved in international criminal network engaging in international economic crimes and that at the material time, the Petitioner was a fugitive from his home country India where he was wanted for numerous economic crimes including tax evasion and liability.
14. The Respondent deposed that transnational economic crimes pose a grave threat to the national interest, national security, stability and prosperity of Kenya. He stated that such crimes implicate Article 238 (1) of the Constitution. Consequently, when these facts came to the attention of the Respondents, it was while the process of the Petitioner’s application for citizenship was ongoing, and the 2 nd Respondent was obliged to exercise the powers conferred by Section 33 (2) (g) of the Citizenship and Immigration Act, 2011 having been satisfied that the Petitioner posed a threat to the national security.
15. The Respondent described the allegation by the Petitioner that he did not know the reason for his deportation as deceptive insisting that he was informed of the reasons for his removal and being declared a Prohibited Immigrant and served with the removal order.
16. The Respondent averred that it is premature and ill-advised for the Petitioner to approach this Honorable as a person who is declared prohibited and inadmissible immigrant should first direct the matter to the Cabinet Secretary through the "Prohibited Immigrants Committee" as contemplated by Section 33 (8) of the Kenya Citizenship and Immigration Act, 2011. The Respondent thus asserted that the Petitioner has not exhausted all administrative remedies as he has not presented his case to the relevant Cabinet secretary through the ‘Prohibited Immigrants Committee’ under Section 33 (8) of the Kenya Citizenship and Immigration Act, 2011 and therefore the entire petition ought to be dismissed "ab initio".
17. The Respondent urged the Court, for the sake of national interest and national security, the Petitioner herein should not be allowed to return to Kenya. The Respondent explained that the under the ‘ doctrine of sovereignty of Nations ’ the right to enter and live in Kenya is the preserve of Kenya citizens only and that all foreigners are subject to the National immigration laws of Kenya. The Respondent thus asserted it is misplaced for the Petitioner to imagine that he has innate legal right to enter and reside in Kenya.
18. The 1 st Respondent affirmed that it has been conferred with discretionary statutory power to vet and screen persons intending to enter and reside in Kenya and may deny entry and residence, if necessary, hence the Petition does not disclose any justiciable controversy.
SUBMISSIONS
Petitioner Submissions
19. Gitonga Mureithi & Company Advocates filed written submissions dated 20/1/2025 and Supplementary submissions dated 22/10/2025.
20. Counsel briefly reviewed the facts upon which the Petition is anchored and then narrowed his submissions to the following issues:
(a) Whether the deportation violated the Petitioner’s constitutional rights and freedoms.
(b) Whether the deportation of the Petitioner complied with the due process requirements under the Kenya Citizenship and Immigration Act, 2011, and other relevant legal provisions.
(c) Whether the Petitioner is entitled to the reliefs sought.
21. On the issue of whether the deportation violated the Petitioner’s constitutional rights and freedoms, Counsel alluded to Article 47 of the Constitution and contended that the Respondents violated the Petitioner's right to administrative justice by failing to furnish him with a deportation order outlining the reasons for their action. Further, he cited Section 4 (2) of the Fair Administration Actions Act 2015 and submitted that by neglecting and/or refusing to inform the Petitioner of the reasons for his deportation or afford him an opportunity to controvert, the 1st and 2nd Respondents violated his right to a fair administrative action and fair hearing.
22. Counsel argued that the Replying affidavit of the Respondent sworn by Ronnie Akedi contained profound internal contradictions in which in Paragraph 8, he stated the Petitioner’s deportation was predicated upon a “National Intelligence Service report” expressly marked “Secret” and hence withheld from disclosure of its contents yet in paragraph 11 of the same affidavit he claims that the Petitioner was “duly informed of the reasons” for his removal.
23. Counsel maintained that the deportation was premised on a secret report which the Petitioner was neither given particulars of nor afforded an opportunity to controvert hence amounted to abuse of the legal process and a gross violation of his rights and fundamental freedoms under Articles 47 and 50 of the Constitution. He buttressed the submission that deportation cannot be justified when material upon which it is based is concealed from the affected person and the Court through judicial precedents, locally and internationally.
24. He relied on the decision of Judicial Committee of the Privy Council, in the cerebrated case of Kanda v Government of Malaya [1962] AC 322, where Lord Denning at page 337 observed:
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”
25. Further reliance was placed on R v Secretary of State for the Home Department, ex parte Hosenball [1977] 1 WLR 766 where Lord Denning, speaking for the Court of Appeal stated as follows regarding security dossiers as pg.783:
“This is a case of a man’s liberty. He is to be deported. He is told nothing about it except in the most general terms. He is not confronted with the evidence against him. He is not allowed to know the witnesses, or what they have said. In truth he has not had a fair hearing at all.”
26. Further reliance was placed on United States Supreme Court case of Greene v McElroy 360 U.S. 474 (1959) in which Chief Justice Warren held at page 496:
“In the absence of explicit authorization from either the President or Congress, we are unwilling to sanction procedures whereby a government agency may deprive a person of his livelihood, by invoking security requirements, without giving him the chance to confront and cross-examine witnesses against him. Traditional concepts of due process forbid condemnation on the basis of secret evidence.”
27. Moving on with international jurisprudence, the High Court of Australia in Plaintiff M47/2012 v Director General of Security [2012] HCA 46, Justice Gummow , at paragraph 164, of the judgment held:
“The adverse security assessment was communicated neither to the plaintiff nor to his legal representatives. This failure was fatal. It is contrary to the minimum content of procedural fairness to allow a person’s liberty or immigration status to be determined by material that is never disclosed to them. Fairness requires disclosure sufficient to permit a meaningful opportunity to respond.”
28. In the Kenyan context, counsel cited the case of Republic v Minister of State for Immigration and Registration of Persons ex parte C.O. [2013] eKLR , where the Court held:
“The reliance on so-called secret reports which are never furnished to the affected person or even to the court is inimical to the constitutional requirement of fair administrative action. No person may be condemned unheard on the basis of undisclosed material.”
29. Further, Muslims for Human Rights (MUHURI) v Attorney General [2012] eKLR where the Court stated:
“The State cannot, by mere recourse to claims of national security, justify the exclusion of affected persons from knowing the case they have to meet. Secrecy, without more, is an invitation to arbitrariness and abuse.”
30. Counsel submitted that the Petitioner was denied an opportunity to communicate with his advocate by the 1st and 2nd Respondent hence violated his right to a fair hearing under Articles 50 and 49. In addition, Counsel submitted that in breach of Article 29 of the Constitution, the Petitioner was held in conditions that he was unable to access basic needs such as water and food which constituted inhuman and degrading treatment.
31. On violation of procedural safeguards provided by the Kenya
Citizenship and Immigration Act, 2011; Counsel; submitted that while the 1st and 2nd Respondents are vested with the power to deport individuals, such authority must be exercised in strict compliance with the laid down statutory provisions. Counsel made reference to Section 43 (1) of the Kenya Citizenship and Immigration Act, 2011, which states:
“(1) The Cabinet Secretary may make an order in writing , directing that any person whose presence in Kenya was , immediately before the making of that order, unlawful under this Act or in respect of whom a recommendation has been made to him or her under section 26A of the Penal Code (Cap. 63), shall be removed from and remain out of Kenya either indefinitely or for such period as may be specified in the order.”
32. He argued that the above section makes it clear that where the presence of a person in Kenya is unlawful, the Cabinet Secretary is to make an order in writing directing the removal of such persons. He maintained that the Petitioner, to date, has never been furnished with a deportation order outlining the reasons for his deportation.
33. He reiterated that the 1 st Respondent had conceded that it had granted Permanent Residency to the Petitioner and submitted that this being the case, such conferred legal status cannot lightly be revocable merely at the whims of the executive fiat. He argued that termination of such status can only be occur in strict compliance with the statute. Court further argued that there is no evidence that the Petitioner’s permanent residence was revoked.
34. In support of this contention, Counsel relied on the House of Lords decision in, Ridge v Baldwin [1964] AC 40 , where it was held that administrative bodies exercising statutory powers must respect natural justice when vested rights are at stake. Lord Reid at page 65 stated:
“The body which has power to deprive a man of his office is bound to act judicially; and to deny him the opportunity of being heard is a plain breach of natural justice. The fact that Parliament gave the power without prescribing the procedure does not mean that it can be exercised arbitrarily.”
35. Mr. Gitonga contended that even Kenyan courts have consistently held that even in deportation cases, Article 47 applies to guarantees fair administrative action that is lawful, reasonable and procedurally fair, and that no person may be condemned unheard or removed from the country on the basis of secret, undisclosed material. Reliance was placed on Oumarou Moumouni Ali v Director General, Kenya Citizens & Foreign Nationals Management Services [2020] eKLR , where the High Court held as follows:
“The decision to revoke the petitioner’s lawful status, without furnishing him with a deportation order or reasons, is a nullity. Immigration status cannot be extinguished by stealth or by vague reference to ‘operation of law .’ The Constitution demands transparency, fairness and adherence to procedure.”
36. He thus submitted that the Respondents’ reliance on the bare phrase “operation of law” without producing a formal deportation order under Section 43 of the Kenya Citizenship and Immigration Act collapses into illegality.
37. Further, Mr. Gitonga submitted that the failure by the Respondent to provide the Petitioner with the reasons for the deportation had deprived him of the opportunity to challenge the ensuing decision through an appeal, as provided for by Section 57 of the Kenya Citizenship and Immigration Act, 2011. The Petitioner relied on the case of Grace Dola & another v Director, Directorate of Criminal Investigations & 2 others [2021] eKLR quoting the case of Republic v Minister of State for Immigration and Registration of Persons Ex-Parte C.O. [2013] eKLR, where the court stated: -
“The requirement in removing an alien from a state’s territory, as provided under the above conventions and in accordance with the constitutional provisions contained in Article 47, is that such removal should be ‘in accordance with the law’, that due process should be followed.”
38. On whether the Petitioner should be granted the reliefs sought, Counsel submitted that the Respondents’ actions subjected the Petitioner to undue hardship, uncertainty, and psychological distress. They deported the Petitioner without furnishing him with reasons. This omission, he argued subjected him to further prejudice as he cannot appeal the decision to deport him under Section 57 of the Kenya Citizenship and Immigration Act, 2011. The Petitioner continues to reside in India yet he is a Kenyan citizen with a family and business in Kenya.
43. He thus underscored that the deportation was unlawful and procedurally irregular. According to Counsel, the Petitioner prays for an opportunity to return to his home in Kenya and see his family again from which he has been separated since 2022 and to oversee the running of his business. Counsel relied on the case of Grace Dola (Supra) quoting the case of Republic v Minister of State for Immigration and Registration of Persons Ex-Parte C.O. [2013] eKLR, where the Court reasoned as follows:
“I would hold that it is contrary to law that the Minister should have the Petitioner, a family man living in Kenya as his domicile, doing normal business and possessed of relevant certificates of legitimate presence, arrested and detained without any hearing at all, deprived of his own properties, extracted from his family environment, detained for long, and then deported. Such actions are telltale instances of violation of the fundamental rights of the individual as set out in detail in Chapter V of the Constitution.”
39. Counsel submitted that in case the Petitioner committed any wrongdoing to warrant his deportation, he is entitled to be subjected to the due process of the law.
40. Countering the Respondents’ submission that the Petitioner has failed to exhaust the administrative remedies under the Citizenship and Immigration Act for failing to present the matter of his immigration status to the ‘Prohibited Immigrants Committee’ , Counsel submitted that this contention cannot be made where it is apparent that the internal remedies are ineffective, illusory, biased, or constitutionally inadequate as was held in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR.
41. Further, in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR it where it was held that it is within the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit especially where the Petition raises genuine violations not merely framed in constitutional language to evade procedure.
42. Counsel was unequivocal that in the present case, the alternative remedy is plainly futile. He reiterated that the deported on the strength of a “National Intelligence Service” report marked “Secret” thus expecting him to appeal before a committee about allegations he has never seen is to demand a meaningless ritual rather than a remedy.
43. Further, Counsel argued that the Petition directly impugns the deportation as a violation of Articles 47 (Fair Administrative Action) and 50 (Fair Hearing) and as such, this Court has jurisdiction under Article 165(3)(b) to determine the matter. He cited the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) where it was held that where the impugned administrative process itself offends the Constitution, this Court is not merely empowered but duty-bound to intervene.
44. Furthermore, Counsel observed that this Honourable Court, in its ruling dated 15th May 2025, considered and dismissed the Respondents’ Preliminary Objection founded on Section 9(2) of the Fair Administrative Action Act and Section 57 of the Kenya Citizenship and Immigration Act. The Court expressly held that the Petitioner had taken reasonable steps to exhaust internal mechanisms, including addressing the Chairperson of the Review and Appeal Committee by letters dated 16th and 25th September 2024, which bore official acknowledgment stamps, but received no response. The Court concluded that the Respondents’ silence rendered the internal mechanism ineffective hence the matter cannot be reopened.
45. Regarding the Respondents’ contention that it relied on a “secret” dossier and Section 33(2)(g) of the Kenya Citizenship and Immigration Act, which permits the Cabinet Secretary to declare a person inadmissible on grounds of national security or national interest, Counsel argued that it cannot be used to justify violation of constitutional guarantees on due process. He submitted that whereas Section 33(2)(g) empowers the Cabinet Secretary to declare a person inadmissible on grounds of national interest, the law demands that such actions strictly comply with due process, including service of notice, disclosure of reasons, and opportunity to be heard and this Court had in its ruling underscored that even in cases involving national security or prohibited-immigrant listings, such actions are still bound by Articles 10 and 47 of the Constitution hence such power is to be exercised judicially, rationally, and fairly as was held in Republic v Minister of State for Immigration and Registration of Persons ex parte C.O. [2013] KEHC 5766 (KLR), where the Court in paragraph 33 of the judgment stated:
“To hold that the Minister is the sole judge when it comes to the exercise of discretion would be to throw the rule of law out of the window. When Constitutional safeguards provided under Article 47 of the Constitution are destroyed by being whittled and judicial officers are put at the sufferance of the Executive or at the whims of the Legislature, the independence of the judiciary is the first victim. It must always be remembered that under Article 25 of the Constitution, one of the rights and fundamental freedoms which cannot be limited is the right to a fair trial…….”
46. Counsel termed as inaccurate the Respondents’ contention that the Petitioner was informed of the reasons for declaring him a prohibited immigrant and served with a removal order asserting that no such notice or reasons were ever furnished.
Respondents’ Submissions
47. The Respondents filed their written submissions dated 16 th October, 2025 through Ms. P.A Chibole, Principal State Counsel .
48. The Respondents commenced by briefly outlining the foundational basis of the Petitioner’s case against them as well as the Respondents rebuttal.
49. The Respondents thus identified and submitted on the following issues:
a) Whether there is any violation of rights by the Respondents against the petitioner;
b) Whether the Petitioner has exhausted all available administrative and internal remedies before moving to a court of law;
c) Whether the petitioners are entitled to the reliefs sought
50. On the issue of whether the Respondents violated the rights of the Petitioner, Ms. Chibole submitted that no constitutional rights of the Petitioner were violated by the Respondents as alleged.
51. Ms. Chibole argued that under Article 24 of the Constitution, the rights Petitioner complains were violated by the Respondents can be limited as they are not among the rights enshrined under Article 25 of the Constitution as non-derogable rights.
52. She argued that under Section 33 (1) of the Kenya Citizenship and Immigration Act, 2011 (Cap. 170), prohibited immigrants are foreign nationals who are barred from entering or remaining in Kenya due to various serious legal, security, health, or public order concerns and includes individuals who have committed or are suspected of committing serious crimes such as human trafficking, terrorism, money laundering, war crimes, or who threaten national security. Additionally, any person whose presence is unlawful or has an order for removal is classified as a prohibited immigrant.
53. Ms. Chibole contended that the 2nd Respondent acted as mandated in law under Section 33 (2) (g) of the Kenya Citizenship and Immigration Act, 2011 to declare any foreigner to be inadmissible on grounds of national security national interest.
54. Furthermore, the Petitioner was duly informed of the reasons behind his declaration as a Prohibited Immigrant and consequently a removal order and the order was duly served and therefore the petitioner cannot pretend to be unaware of his removal from the country. The Respondents relied on the case of Ebuka v Director of Immigration Services & 2 others (Petition E256 of 2022) [2025] KEHC 4138 (KLR) (Constitutional and Human Rights) ( 27 March 2025) (Judgment), where the court stated as follows:
It is thus my finding from the foregoing that in the present case, the actions and decision of the Cabinet Secretary in the Ministry of Interior and Coordination of National Government were lawful, as he acted within his statutory mandate, and has also demonstrated a good reason to place the Petitioner under a recognized category of prohibited immigrants.’’
55. On the issue of whether the Petitioner exhausted all available administrative and internal remedies before moving to a court of law the Respondents argued that the petitioner lost his permanent residence status when the removal order against him came into force under section 43(1) of the Kenya Citizenship and Immigration Act 2011 which provides as follows:
(1) The Cabinet Secretary may make an order in writing, directing that any person whose presence in Kenya was, immediately before the making of that order, unlawful under this Act or in respect of whom a recommendation has been made to him or her under section 26A of the Penal Code (Cap. 63), shall be removed from and remain out of Kenya either indefinitely or for such period as may be specified in the order.
56. The Respondents argued that the issuance of a deportation order was in exercise of administrative powers of the Cabinet Secretary. Ms. Chibole submitted that Section 33 (8) of the Kenya Citizenship and Immigration Act, 2011, the Cabinet Secretary, may from time to time, review the status of prohibited immigrants and inadmissible persons, subject to the advice of the relevant committee in this case, the Prohibited Immigrant Committee where the petitioner ought to have channelled his grievances before filing a judicial review application.
57. Ms. Chibole argued that the Petitioner ought to have exhausted all the available internal appeal or review mechanisms provided by the Act before approaching the Court. In support, Counsel relied on various judicial decisions including Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR ; which cited with approval R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR , and the Speaker of National Assembly v Karume [1992] KLR 21 in underscoring the that where there are prescribed procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Also relied by Counsel to drive this point home was the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] KECA 304 (KLR), the court upholding the doctrine of exhaustion stated:
“We find and hold that the exhaustion doctrine applies even where, as was argued by the appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various plaintiffs’ disputes had they filed them within the church set up.And there was always the right, acknowledged by the learned Judge, of approaching the courts after exhaustion of the church mechanisms. By failing to do so, and quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially short-circuited the process by filing suits prematurely”.
58. Counsel thus urged this Honourable Court should to allow the appropriate forum, in this case, the Prohibited Immigrant Committee, to address the issues within its ju
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