REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E064 OF 2023
ZLATKO GEGIC………………………………………………PETITIONER
VERSUS
NATIONAL POLICE SERVICE COMMISSION……...1 ST RESPONDENT
INSPECTOR GENERAL OF POLICE…………………2 ND RESPONDENT
MINISTRY OF INTERIOR AND COORDINATION
OF NATIONAL GOVERNMENT………………………3 RD RESPONDENT
DIRECTOR GENERAL, IMMIGRATION
AND CITIZEN SERVICES………………………………4 TH RESPONDENT
ATTORNEY GENERAL………………………………...5 TH RESPONDENT
JUDGMENT
1. This Petition presents an account of alleged misuse of State power. The petition raises a simple but fundamental question: whether the coercive authority of the police and immigration officials can be deployed outside the law to remove a person who claims to be lawfully residing and working within the Republic of Kenya, without according that person an opportunity to be heard before being bundled out of the country.
2. The Petitioner, Ztlatko Gegic is a foreign national and citizen of Bosnia and Herzegovina, who was at all material times lawfully resident in Kenya under a multiple entry visa issued to him on 14 th November, 2022 until 13 th November, 2023. The Petitioner was employed as the Regional Field Director for East Africa at the Centre for Civilians in Conflict, (CIVIC) with effect from 9 th March, 2021, which employment contract was to last until 31 st December, 2025 meaning, he was expected to keep renewing residence his visa until 31 st December, 2025.
3. He pleads and deposes that on 23 rd February 2023 at 05:45 am, five people who identified themselves as police officers arrested him and took him to a room at Muthaiga Police Station before driving him to Jomo Kenyatta International Airport (JKIA) where they forced him to book a ticket with his own money to his home country in Bosnia and Herzegovina.
4. That while at the JKIA, the Petitioner informed CIVIC to book him a ticket under supervision of the said police officers and that he left the country the next day on 24 th February, 2023 at 05:00 am to his country through Istanbul, Turkey under the watchful eye of the police officers who had all along detained him at an airport room.
5. That through his workmate, Irene Mutungi, an accountant who also works for CIVIC, the Petitioner reported the matter to the Police and the report was booked via Occurrence Book Number 28/03/03/2023, with the police promising to investigate the incident.
6. The Petitioner avers that he has not had any matter with the police before and that there were no extradition proceedings commenced against him.
7. He avers that the police actions surprised him as he was not aware of any investigations against him over any crime and that he has never been summoned to any police station to answer any allegations against him.
8. The Petitioner strongly believes that some of his powerful Board members of CIVIC colluded with the police to have him arrested and unlawfully deported out of the country.
9. As at the time of filing this Petition on 8 th March 2023, he was apprehensive of losing his job if he stayed outside the country for a long period of time without coming back to work, which would deprive him of his income and wellbeing.
10. He was further apprehensive that the powerful Board members could use the police to unlawfully deport him once he returned into the country if the orders sought were not granted. Regrettably, three years down the line, the petition has not been heard and determined. I take no responsibility for the delay as I gave this judgment date the first day that I came into contact with this matter on 27 th April, 2026.
11. The petition is further supported by the affidavit sworn by the petitioner and the affidavit of Nancy Anyango on 4 th June, 2025, the Regional Safety and Security Officer at CIVIC and who deposes that she knew the petitioner as a law-abiding resident and that his unexplained deportation from the country caused disruption at CIVIC, causing emotional and reputational stress among colleagues at work.
12. On particulars of infringements, the petitioner pleads that he was treated contrary to the values which Kenyans committed themselves to while enacting the constitution. He asserts that under Article 20(3) of the Constitution, courts are required to develop the law to the extent that it does not give rights or fundamental freedom; they should adopt an interpretation that most favours enforcement of rights or fundamental freedoms and under Article 20(4) the court is required to promote the Bill of Rights.
13. The petitioner avers that the actions taken by the Respondents were not in consonance with the spirit of the Constitution and that the Courts are required to promote an open and democratic society based on human dignity, equality, equity and freedom. He maintains that he never had any matter at the police before and that there were no any extradition trials against him.
14. On equality and freedom from discrimination under Article 27, the petitioner pleads that Article 27(1) of the Constitution guarantees every person the right to equal protection and benefit of the law; and that in this case, at the time the Petitioner was arrested, he was denied the rights under Article 27.
15. That the police actions surprised him as he was not being investigated over any crime and that he has never been summoned to the police to answer any allegations against him. The petitioner believes that he was discriminated against and that a powerful Board members may use the police to unlawfully deport him once he returns into the country if the orders sought are not granted.
16. On freedom and security of a person under Article 29 of the Constitution, the Petitioner asserts that even assuming that the Petitioner deserved to be removed from Kenya, he had to be subjected to the provision of the Act and Articles 47(1) and 50(1) of the Constitution and given the right to fair administrative action and fair hearing as amplified by Section 21 of the Kenya Citizens and Immigration Act, so much so that whatever the Respondents were doing had to comply with constitutional standards of procedural fairness and fair hearing. He contends that the Respondents could not just decide to deport the petitioner and declare him a prohibited immigrant without subjecting him to any known form of due process. Their actions were not in accord with the constitution and the law thus violated the rule of law. He reiterates that Article 29(a) guarantees every person has the right to freedom and security of the person which includes the right not to be deprived of freedom arbitrarily or without just cause.
17. On human dignity under Article 28, the petitioner pleads that he was wrongly arrested and held incommunicado until he arrived at the airport. That none of the officers bothered to explain to him the reason of the rush in the whole procedure. That he was held in a detention room and had his luggage taken away from him and he remained with nothing. That holding him in a detention room without explanation and having all his belonging taken away from him in total disregard of his human rights and fundamental freedoms is violation of the person’s dignity.
18. The petitioner maintained that even where one is perceived a criminal, he must be subjected to due process. That the conditions that he was subjected to amounted to torture and inhuman and degrading treatment that are absolutely outlawed by the Bill of Rights. That torture does not have to be physical alone. Mental and psychological harassment too amounts to torture.
19. On fair administrative action under Article 47 , it is asserted that Article 47 of the Constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Further that there is a right to be given reasons for any person who has been or is likely to be adversely affected by administrative action.
20. That in this case, no reasons were given to the petitioner for his unprocedural deportation. That the said deportation violated principles of natural justice as he was never heard on any allegations and that in any event, Section 49 (8) of the Kenya Citizenship and Immigration Act provides that "an immigration officer may, by summons in writing, require any person other than a citizen of Kenya to attend at his office and to furnish to that officer such information, documents and other particulars as are necessary for the purposes of determining whether that person should be permitted to remain in Kenya.
21. That the aforesaid section does not entail arbitrary deportation nor does it justify a situation whereby a foreign national is summoned, held at the immigration offices or cells and then escorted to the next available flight without being afforded a reasonable opportunity to defend himself or show cause why he ought not to be deported or seek court intervention. According to the petitioner, a procedure that excludes a fair process or due process cannot meet the constitutional test.
22. Consequently, the petitioner seeks the following specific reliefs:
a) A declaration that the Respondents contravened the rights of the Petitioner’s guaranteed under Articles 24, 27 and 28 of the constitution.
b) A declaration that the Respondents contravened the rights of the Petitioner’s guaranteed under Article 29 of the Constitution.
c) An order be and is hereby issued prohibiting the 1 st , 2 nd and 3 rd Respondents from preventing the Petitioner from returning to and remaining in the Republic of Kenya without justifiable cause, and contrary to and without following due process.
d) A permanent injunction be and is hereby issued restraining the Respondents whether by their agents, servants or anyone acting under them from arresting and/or deporting the Petitioner unlawfully and/or without proper and justifiable cause and/or without following due process.
e) A permanent injunction restraining the 4 th Respondent from denying the Petitioner entry into the country on the basis of the facts subject before this Honourable Court.
f) An award of general, exemplary and aggravated damages under Article 23(3) of the Constitution of Kenya for violations of the Petitioner’s rights by the Respondents.
g) The Respondents shall pay the costs of this petition to the petitioner.
The 2 nd , 3 rd , 4 th and 5 th Respondents’ Replying Affidavits
23. The 1 st respondent had filed grounds of opposition and submissions but was excused from these proceedings on 12 th April, 2023 by Thande Mugure J
24. The 3rd, 4th and 5th respondents filed two replying affidavits dated 30th May 2023 and 19th April 2023 respectively, sworn by Walter Marunga and Fiona Owuor. According to the Ms Fiona Owuor, on 16th January 2023, they received a confidential report from National Intelligence Service-(NIS) that the petitioner had fraudulently procured a Kenyan national identity card No. 39827004 in June 2021 without following due process of naturalization and thus it was recommended that the petitioner be declared a prohibited immigrant and deported to his country. The immigration officer, Ms. Fiona Owuor who is the deponent herein undertook to produce the confidential report in camera. However, after the petitioner testified, the respondents intimated to court that they would not call any witness. The alleged confidential report was therefore not produced as evidence.
25. The respondents also contend in deposition that the records held by the National Registration Bureau showed that the petitioner had applied for and was issued with a national identity card stated above as shown by copy of the said records annexed and marked FO1. It was deposed that an application for citizenship has to be made in accordance with sections 10,11,13 of the Kenya Citizenship and Immigration Act and that once an application is received and registration is recommended, the foreigner is issued with a certificate of citizenship which is later used to apply for citizenship.
26. In the instant case, it was deposed that the petitioner was never registered as a citizen of Kenya for him to be issued with the national identity card as was the case herein, which, according to the respondents, was obtained fraudulently as there are no records to show whether the petitioner is a citizen by registration or by naturalization.
27. Further, that it was following the recommendations of the NIS that the petitioner was declared a prohibited immigrant and making him inadmissible as per sections 33 (1) (h) of the Act and the declaration by the Cabinet Secretary for Interior dated 30 th January 2023 was issued followed by a deportation order dated the same day pursuant to section 43 of the KCIA. That section 43 of the Act gives the Cabinet Secretary authority to order for removal of any foreign national if there is legitimate reason to warrant his removal as was, the case of the present petitioner.
28. Further deposition was that the right to reentry only applies to Kenyan citizens as provided for under Article 39(3) of the Constitution and that foreigners have no absolute right of reentry, there being conditions imposed, with the view to promoting and safeguarding national interest hence, according to the respondents, this court lacks jurisdiction to compel reentry. That the national Police Service Act empowers the police to investigate offences and enforce all laws and regulations while observing national values and standing orders and that the same were observed in the instant case.
29. That this petition seeks to unjustly curtail the authority, powers and functions imposed by the law and the Constitution on the respondents, which this court should not permit and that the rights allegedly violated are not non derogable under Article 25 of the Constitution as investigations and arrest are all sanctioned by the law.
30. In the affidavit s worn by Chief Inspector Walter Marunga, working in the Transnational Organized Crime Unit of the Directorate of Criminal Investigations, it is deposed that sometime towards at the end of 2022, intelligence information gathered by detectives revealed that an individual by the name Zlatko Gegic, the petitioner herein, had attempted to book an appointment for a meeting with the Cabinet Secretary of Defence, with what appeared to be a fraudulently acquired Kenyan National Identity Card No. 39827004 with the particulars showing that he was born on 2/1/1970 in Bosnia Herzegovina, the Identity card was issued at Waithaka on 11/06/2022, Home District being Mombasa, Division Island, Sublocation Bondeni and Bondeni Village as annexed Kenyan national identity card containing the particulars supplied herein above.
31. That upon gathering further intelligence information from their sources, it was confirmed that the petitioner had officially made an application for a Kenyan National Identity card, as shown by annexture “VVM-2" an extract of the petitioner's application for an Identity card as issued by the National Registration Bureau.
32. That the application for the national identity card was made barely one month after the petitioner was appointed as the Regional Director for CIVIC and that he had declared his occupation as a jeweler and that intelligence information further revealed that the petitioner was in the process of applying for a Kenyan passport\.
33. That it was the intelligence information gathered that prompted the issuance of a declaration by the 3rd respondent dated 30th January, 2023 declaring the petitioner a prohibited Immigrant under section 43 (1) (2) of the Kenya Citizenship and Immigration Act, 2011 and consequently, a Deportation Order dated 30th January, 2023 was issued against the petitioner.
34. That following the Orders issued by the 3rd respondent, the petitioner was arrested on 23rd by detectives from the Transnational Organized Crime Unit and detained briefly at JKIA Immigration Offices as travel arrangements were being made by the respondents.
35. However, that on volition however, the petitioner sought to make his own travel arrangements indicating that due to his job status, it was potentially damning for him to spend more time in the custody of the police. That after he had made his own travel arrangements, he was deported to his home country on 24th February, 2023.
36. It is deposed that further investigations into the manner in which the petitioner was issued with a National Identity card are ongoing to enable prosecution of the suspected perpetrators.
37. The respondents contend that contrary to the petitioner's allegations and insinuations, the respondents are neither informed nor privy to any business wrangles between the petitioner and his work associates. Thy maintain that the actions of the respondents were purely undertaken on the basis of the intelligence information gathered and in exercise of their constitutional and statutory authority.
38. The respondents assert that the petitioner is brought in bad faith because ethe petitioner admits severally in his depositions that he is a citizen of Bosnia Herzegovina yet he applied for a Kenyan national identity card and he also claims to be a citizen of Kenya as per his depositions.
39. The deponent also deposes on matters of law which I shall not reproduce here as the same ought not to be deposed by reserved for submissions.
The Petitioner’s Further Affidavit
40. The Petitioner swore a further affidavit on 5th June, 2023 responding to the 3rd, 4th and 5th R espondent’s replying affidavit and maintaining that even if it was to be found that he had fraudulently or unlawfully acquired Kenyan citizenship, he was entitled to due process or criminal sanctions under the law and not to be illegally deported the way it was done. That under section 21 of the Kenya citizenship and Immigration Act., the Cabinet Secretary may revoke citizenship earned through "registration" on the grounds mentioned under Article 17 of the Constitution if there is adequate proof and the Citizenship Advisory Committee recommends it.
41. According to the petitioner, it is absurd that the 3 rd , 4 th and 5 th Respondents fault him for allegedly not following the due process of acquiring an Identity card, and react to this allegation by not following the due process towards the deportation of the petitioner. my deportation. That no recommendation or explanation was given about the illegal deportation from Kenya hence, due process was not adhered to.
42. That the Cabinet Secretary is required to give written notice and inform the person whose Identity Card is due to be revoked of the intention to revoke, as well as the reasons for the action. That the Cabinet Secretary must then provide the person who has received such notice with an opportunity to present reasons why his or her Identity Card should not be rescinded.
Oral testimony
43. The petitioner also testified on oath on 28 th October, 2025 and was cross examined after adopting his sworn affidavits and statement filed in court in support of the petition as pleaded and deposed and in cross examination, he stated that he did not apply to be issued with a Kenyan national identity card. He complained of illegal deportation without due process in violation of his rights by the respondents. He stated that he applied for a residence permit and denied being issued with the national identity card No. 39827004. He however admitted in cross examination that he was issued with a Kenyan national identity card in 2021 June.
44. The petitioner stated that he was aware that he ought to have lived in the country for 7 years before applying for Kenyan citizenship. He denied the suggestion that he had not been in Kenya for 7 years and stated that he was aware that it was illegal for a foreigner to possess a Kenyan identity card but that he followed the procedure. He denied knowledge of the identity card being issued to him fraudulently saying that he applied for resident permit through e-citizen and was instead issued with an identity card. He denied that he attempted to apply for a Kenyan passport.
45. In reexamination, the petitioner reiterated that the issue was his deportation without due process and NOT being told the reason for deporting him.
Submissions
46. The petitioner’s counsel filed written submissions dated 5 th June, 2023 and supplementary submissions dated 29 th October, 2025, the petitioner frames the following combined issues for determination:
1. Whether due process was followed in the Petitioner’s deportation?
2. Whether there is an infringement on Petitioner’s constitutional rights and freedoms?
3. Whether this Honourable Court is rightly placed to determine the issue of the issuance of the Petitioner’s Kenyan Identity Card?
4. Whether the Petitioner is entitled to the reliefs sought?
47. On the first issue of whether due process was followed in the petitioner’s deportation, it was submitted that the Petitioner did not have any matter at the police before and that there were no extradition trials against him. That he was never served with an order declaring him a prohibited immigrant and for his deportation before he was handed an air ticket and boarding pass for Bosnia hence due process was not followed in his deportation. Reliance was placed on Section 49 (8) of the Kenya Citizenship and Immigration Act which provides that "an immigration officer may, by summons in writing, require any person other than a citizen of Kenya to attend at his office and to furnish to that officer such information, documents and other particulars as are necessary for the purposes of determining whether that person should be permitted to remain in Kenya."
48. According to the petitioner, the above section does not entail arbitrary deportation nor does it justify a situation whereby a foreign national is summoned, held at the immigration offices or cells and then escorted to the next available flight without being afforded a reasonable opportunity to defend himself or show cause why he ought not to be deported or seek court intervention. That a procedure that excludes a fair process or due process cannot meet the constitutional test.
49. Counsel further cited Section 2 of the Act which defines deportation as: - “deportation” means the action or procedure aimed at causing an illegal foreign national to leave the country either voluntarily or compulsorily, or under detention in terms of this Act and the verb ‘to deport’ has a corresponding meaning;" and submitted that there is no evidence on record that the Petitioner was an illegal foreign national in Kenya.
50. It was urged that the speedy manner in which the deportation process was undertaken raises fundamental questions of whether he was accorded sound justice or was accorded an opportunity to show cause why he should not be deported. Reliance was placed on the writings by Brooks Holland who describes such conduct as " The Two-Sided Speedy Trial Problem? Further reliance was placed on the discussion by Shon Hopwood who while invoking the maxim "justice delayed is justice denied" considered the fuller picture of criminal justice, postulates what he calls the flip side of the said maxim and argues that it poses an equal danger, which danger was ably brought out by Martin Luther King, Jr.’s Letter from Birmingham Jail where he wrote:- “justice too long delayed is justice denied.” Not because delays contrary to justice should be tolerated for any time. Rather, because the flip side of justice delayed can be an equal danger: a rushed, unconsidered justice ."
51. According to the petitioner, a rushed speedy trial is not envisaged by the Constitution hence there was no fair trial at all accorded to the petitioner before he was speedily deported. He cited the decision In Li Wen Jie & 2 Others V Cabinet Secretary, Interior and Coordination of The National Government & 3 Others [2017] eKLR where the court is said to have stated that the Constitution does not distinguish in some respects between the rights of citizens and non-citizens and that the only right denied to foreigners is the right to vote or vie for elective offices while all other rights are written without such a limitation.
52. The petitioner also submitted citing the U.S. Supreme Court Judge, Justice William Brennan who is said to have commented that “illegals had rights because they were “persons” and stated that:
“The illegal aliens who are … challenging the state may claim the benefit of the Equal Protection clause which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws .’ Whatever his status under immigration laws, an alien is a ‘person’ in any ordinary sense of the term…..”
53. The petitioner submitted that the Universal Declaration of Human Rights explicitly guarantees the rights of due process, political expression and association, and equal protection. Article 2(5) of the Constitution expressly imports the general rules of international law and makes them part of the laws of Kenya. Accordingly, it was submitted that this court should find that the speedy manner in which the deportation process of the Petitioner was undertaken is a mockery to justice and cannot, taking all into account qualify to be called a fair process hence the principles of natural justice were flouted and should not be left to stand.
54. On the second issue of whether there is infringement of the petitioner’s constitutional rights and fundamental freedoms, the petitioner submitted that first, the respondents violated his right to fair administrative action because the Petitioner was never granted any hearing nor was he informed of any charges against him before any declarations and consequently the ultimate deportation of the Petitioner. Further, that the petitioner was given time to know when the declaration allegedly made by the Ministry of Internal Affairs was made and on what grounds, since no hearing was accorded to him and neither were the charged against him substantiated. Reliance was placed on Oumarou Moumouni Ali V Director General Kenya Citizens And Foreign Nationals Management Services & 3 Others [2020] Eklr where the Court is said to have cited the Constitutional Court of South Africa in the case of President of the Republic of South Africa and Others Vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1 , where it was stated that:
“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice . These standards will, of course, be informed by the common law principles developed over decades…”
55. Further reliance was placed on the Court of Appeal case of Judicial Service Commission V. Mbalu Mutava & Another (2014) eKLR where it was held:
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights . The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires form which administrative law under the common law was developed. ”
56. The petitioner’s counsel also relied on High Court Petition No. 586 Of 2012 Between Bashir Mohamed Jame Abdi And Minister For Immigration & Others where Justice I. Lenaola (as he then was) is said to have held that:
“By denying the subject Abdi Bashir Mohamed alias Cabdiqani Bashir Mohamed entry into Kenya and deporting him to the UK without a formal process or service on him with any written allegations, reasons or order/s and without according him a hearing, to contact his family or counsel, to appeal against the order of denial of entry into Kenya d deportation to the UK was a violation of the subject’s constitutional rights of a citizen under Article 123, his fundament rights and freedoms as to equal treatment and equal action/justice, to deprivation of the society and recognition of his rights to a fair hearing under Articles 27(1), 45(1) and 47 of the Constitution
57. The petitioner urged this court to find that the deportation of the Petitioner to Bosnia without any formal process or the timely service on him with the declaration, written allegations, reasons and failure to accord him a hearing and giving him time to appeal against the deportation order or challenge the same, the Respondents violated the Petitioner’s constitutional rights under Article 47 of the Constitution.
58. The petitioner further submitted that his right to equality before the law and freedom from discrimination under Article
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E064 OF 2023
ZLATKO GEGIC………………………………………………PETITIONER
VERSUS
NATIONAL POLICE SERVICE COMMISSION……...1 ST RESPONDENT
INSPECTOR GENERAL OF POLICE…………………2 ND RESPONDENT
MINISTRY OF INTERIOR AND COORDINATION
OF NATIONAL GOVERNMENT………………………3 RD RESPONDENT
DIRECTOR GENERAL, IMMIGRATION
AND CITIZEN SERVICES………………………………4 TH RESPONDENT
ATTORNEY GENERAL………………………………...5 TH RESPONDENT
JUDGMENT
1. This Petition presents an account of alleged misuse of State power. The petition raises a simple but fundamental question: whether the coercive authority of the police and immigration officials can be deployed outside the law to remove a person who claims to be lawfully residing and working within the Republic of Kenya, without according that person an opportunity to be heard before being bundled out of the country.
2. The Petitioner, Ztlatko Gegic is a foreign national and citizen of Bosnia and Herzegovina, who was at all material times lawfully resident in Kenya under a multiple entry visa issued to him on 14 th November, 2022 until 13 th November, 2023. The Petitioner was employed as the Regional Field Director for East Africa at the Centre for Civilians in Conflict, (CIVIC) with effect from 9 th March, 2021, which employment contract was to last until 31 st December, 2025 meaning, he was expected to keep renewing residence his visa until 31 st December, 2025.
3. He pleads and deposes that on 23 rd February 2023 at 05:45 am, five people who identified themselves as police officers arrested him and took him to a room at Muthaiga Police Station before driving him to Jomo Kenyatta International Airport (JKIA) where they forced him to book a ticket with his own money to his home country in Bosnia and Herzegovina.
4. That while at the JKIA, the Petitioner informed CIVIC to book him a ticket under supervision of the said police officers and that he left the country the next day on 24 th February, 2023 at 05:00 am to his country through Istanbul, Turkey under the watchful eye of the police officers who had all along detained him at an airport room.
5. That through his workmate, Irene Mutungi, an accountant who also works for CIVIC, the Petitioner reported the matter to the Police and the report was booked via Occurrence Book Number 28/03/03/2023, with the police promising to investigate the incident.
6. The Petitioner avers that he has not had any matter with the police before and that there were no extradition proceedings commenced against him.
7. He avers that the police actions surprised him as he was not aware of any investigations against him over any crime and that he has never been summoned to any police station to answer any allegations against him.
8. The Petitioner strongly believes that some of his powerful Board members of CIVIC colluded with the police to have him arrested and unlawfully deported out of the country.
9. As at the time of filing this Petition on 8 th March 2023, he was apprehensive of losing his job if he stayed outside the country for a long period of time without coming back to work, which would deprive him of his income and wellbeing.
10. He was further apprehensive that the powerful Board members could use the police to unlawfully deport him once he returned into the country if the orders sought were not granted. Regrettably, three years down the line, the petition has not been heard and determined. I take no responsibility for the delay as I gave this judgment date the first day that I came into contact with this matter on 27 th April, 2026.
11. The petition is further supported by the affidavit sworn by the petitioner and the affidavit of Nancy Anyango on 4 th June, 2025, the Regional Safety and Security Officer at CIVIC and who deposes that she knew the petitioner as a law-abiding resident and that his unexplained deportation from the country caused disruption at CIVIC, causing emotional and reputational stress among colleagues at work.
12. On particulars of infringements, the petitioner pleads that he was treated contrary to the values which Kenyans committed themselves to while enacting the constitution. He asserts that under Article 20(3) of the Constitution, courts are required to develop the law to the extent that it does not give rights or fundamental freedom; they should adopt an interpretation that most favours enforcement of rights or fundamental freedoms and under Article 20(4) the court is required to promote the Bill of Rights.
13. The petitioner avers that the actions taken by the Respondents were not in consonance with the spirit of the Constitution and that the Courts are required to promote an open and democratic society based on human dignity, equality, equity and freedom. He maintains that he never had any matter at the police before and that there were no any extradition trials against him.
14. On equality and freedom from discrimination under Article 27, the petitioner pleads that Article 27(1) of the Constitution guarantees every person the right to equal protection and benefit of the law; and that in this case, at the time the Petitioner was arrested, he was denied the rights under Article 27.
15. That the police actions surprised him as he was not being investigated over any crime and that he has never been summoned to the police to answer any allegations against him. The petitioner believes that he was discriminated against and that a powerful Board members may use the police to unlawfully deport him once he returns into the country if the orders sought are not granted.
16. On freedom and security of a person under Article 29 of the Constitution, the Petitioner asserts that even assuming that the Petitioner deserved to be removed from Kenya, he had to be subjected to the provision of the Act and Articles 47(1) and 50(1) of the Constitution and given the right to fair administrative action and fair hearing as amplified by Section 21 of the Kenya Citizens and Immigration Act, so much so that whatever the Respondents were doing had to comply with constitutional standards of procedural fairness and fair hearing. He contends that the Respondents could not just decide to deport the petitioner and declare him a prohibited immigrant without subjecting him to any known form of due process. Their actions were not in accord with the constitution and the law thus violated the rule of law. He reiterates that Article 29(a) guarantees every person has the right to freedom and security of the person which includes the right not to be deprived of freedom arbitrarily or without just cause.
17. On human dignity under Article 28, the petitioner pleads that he was wrongly arrested and held incommunicado until he arrived at the airport. That none of the officers bothered to explain to him the reason of the rush in the whole procedure. That he was held in a detention room and had his luggage taken away from him and he remained with nothing. That holding him in a detention room without explanation and having all his belonging taken away from him in total disregard of his human rights and fundamental freedoms is violation of the person’s dignity.
18. The petitioner maintained that even where one is perceived a criminal, he must be subjected to due process. That the conditions that he was subjected to amounted to torture and inhuman and degrading treatment that are absolutely outlawed by the Bill of Rights. That torture does not have to be physical alone. Mental and psychological harassment too amounts to torture.
19. On fair administrative action under Article 47 , it is asserted that Article 47 of the Constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Further that there is a right to be given reasons for any person who has been or is likely to be adversely affected by administrative action.
20. That in this case, no reasons were given to the petitioner for his unprocedural deportation. That the said deportation violated principles of natural justice as he was never heard on any allegations and that in any event, Section 49 (8) of the Kenya Citizenship and Immigration Act provides that "an immigration officer may, by summons in writing, require any person other than a citizen of Kenya to attend at his office and to furnish to that officer such information, documents and other particulars as are necessary for the purposes of determining whether that person should be permitted to remain in Kenya.
21. That the aforesaid section does not entail arbitrary deportation nor does it justify a situation whereby a foreign national is summoned, held at the immigration offices or cells and then escorted to the next available flight without being afforded a reasonable opportunity to defend himself or show cause why he ought not to be deported or seek court intervention. According to the petitioner, a procedure that excludes a fair process or due process cannot meet the constitutional test.
22. Consequently, the petitioner seeks the following specific reliefs:
a) A declaration that the Respondents contravened the rights of the Petitioner’s guaranteed under Articles 24, 27 and 28 of the constitution.
b) A declaration that the Respondents contravened the rights of the Petitioner’s guaranteed under Article 29 of the Constitution.
c) An order be and is hereby issued prohibiting the 1 st , 2 nd and 3 rd Respondents from preventing the Petitioner from returning to and remaining in the Republic of Kenya without justifiable cause, and contrary to and without following due process.
d) A permanent injunction be and is hereby issued restraining the Respondents whether by their agents, servants or anyone acting under them from arresting and/or deporting the Petitioner unlawfully and/or without proper and justifiable cause and/or without following due process.
e) A permanent injunction restraining the 4 th Respondent from denying the Petitioner entry into the country on the basis of the facts subject before this Honourable Court.
f) An award of general, exemplary and aggravated damages under Article 23(3) of the Constitution of Kenya for violations of the Petitioner’s rights by the Respondents.
g) The Respondents shall pay the costs of this petition to the petitioner.
The 2 nd , 3 rd , 4 th and 5 th Respondents’ Replying Affidavits
23. The 1 st respondent had filed grounds of opposition and submissions but was excused from these proceedings on 12 th April, 2023 by Thande Mugure J
24. The 3rd, 4th and 5th respondents filed two replying affidavits dated 30th May 2023 and 19th April 2023 respectively, sworn by Walter Marunga and Fiona Owuor. According to the Ms Fiona Owuor, on 16th January 2023, they received a confidential report from National Intelligence Service-(NIS) that the petitioner had fraudulently procured a Kenyan national identity card No. 39827004 in June 2021 without following due process of naturalization and thus it was recommended that the petitioner be declared a prohibited immigrant and deported to his country. The immigration officer, Ms. Fiona Owuor who is the deponent herein undertook to produce the confidential report in camera. However, after the petitioner testified, the respondents intimated to court that they would not call any witness. The alleged confidential report was therefore not produced as evidence.
25. The respondents also contend in deposition that the records held by the National Registration Bureau showed that the petitioner had applied for and was issued with a national identity card stated above as shown by copy of the said records annexed and marked FO1. It was deposed that an application for citizenship has to be made in accordance with sections 10,11,13 of the Kenya Citizenship and Immigration Act and that once an application is received and registration is recommended, the foreigner is issued with a certificate of citizenship which is later used to apply for citizenship.
26. In the instant case, it was deposed that the petitioner was never registered as a citizen of Kenya for him to be issued with the national identity card as was the case herein, which, according to the respondents, was obtained fraudulently as there are no records to show whether the petitioner is a citizen by registration or by naturalization.
27. Further, that it was following the recommendations of the NIS that the petitioner was declared a prohibited immigrant and making him inadmissible as per sections 33 (1) (h) of the Act and the declaration by the Cabinet Secretary for Interior dated 30 th January 2023 was issued followed by a deportation order dated the same day pursuant to section 43 of the KCIA. That section 43 of the Act gives the Cabinet Secretary authority to order for removal of any foreign national if there is legitimate reason to warrant his removal as was, the case of the present petitioner.
28. Further deposition was that the right to reentry only applies to Kenyan citizens as provided for under Article 39(3) of the Constitution and that foreigners have no absolute right of reentry, there being conditions imposed, with the view to promoting and safeguarding national interest hence, according to the respondents, this court lacks jurisdiction to compel reentry. That the national Police Service Act empowers the police to investigate offences and enforce all laws and regulations while observing national values and standing orders and that the same were observed in the instant case.
29. That this petition seeks to unjustly curtail the authority, powers and functions imposed by the law and the Constitution on the respondents, which this court should not permit and that the rights allegedly violated are not non derogable under Article 25 of the Constitution as investigations and arrest are all sanctioned by the law.
30. In the affidavit s worn by Chief Inspector Walter Marunga, working in the Transnational Organized Crime Unit of the Directorate of Criminal Investigations, it is deposed that sometime towards at the end of 2022, intelligence information gathered by detectives revealed that an individual by the name Zlatko Gegic, the petitioner herein, had attempted to book an appointment for a meeting with the Cabinet Secretary of Defence, with what appeared to be a fraudulently acquired Kenyan National Identity Card No. 39827004 with the particulars showing that he was born on 2/1/1970 in Bosnia Herzegovina, the Identity card was issued at Waithaka on 11/06/2022, Home District being Mombasa, Division Island, Sublocation Bondeni and Bondeni Village as annexed Kenyan national identity card containing the particulars supplied herein above.
31. That upon gathering further intelligence information from their sources, it was confirmed that the petitioner had officially made an application for a Kenyan National Identity card, as shown by annexture “VVM-2" an extract of the petitioner's application for an Identity card as issued by the National Registration Bureau.
32. That the application for the national identity card was made barely one month after the petitioner was appointed as the Regional Director for CIVIC and that he had declared his occupation as a jeweler and that intelligence information further revealed that the petitioner was in the process of applying for a Kenyan passport\.
33. That it was the intelligence information gathered that prompted the issuance of a declaration by the 3rd respondent dated 30th January, 2023 declaring the petitioner a prohibited Immigrant under section 43 (1) (2) of the Kenya Citizenship and Immigration Act, 2011 and consequently, a Deportation Order dated 30th January, 2023 was issued against the petitioner.
34. That following the Orders issued by the 3rd respondent, the petitioner was arrested on 23rd by detectives from the Transnational Organized Crime Unit and detained briefly at JKIA Immigration Offices as travel arrangements were being made by the respondents.
35. However, that on volition however, the petitioner sought to make his own travel arrangements indicating that due to his job status, it was potentially damning for him to spend more time in the custody of the police. That after he had made his own travel arrangements, he was deported to his home country on 24th February, 2023.
36. It is deposed that further investigations into the manner in which the petitioner was issued with a National Identity card are ongoing to enable prosecution of the suspected perpetrators.
37. The respondents contend that contrary to the petitioner's allegations and insinuations, the respondents are neither informed nor privy to any business wrangles between the petitioner and his work associates. Thy maintain that the actions of the respondents were purely undertaken on the basis of the intelligence information gathered and in exercise of their constitutional and statutory authority.
38. The respondents assert that the petitioner is brought in bad faith because ethe petitioner admits severally in his depositions that he is a citizen of Bosnia Herzegovina yet he applied for a Kenyan national identity card and he also claims to be a citizen of Kenya as per his depositions.
39. The deponent also deposes on matters of law which I shall not reproduce here as the same ought not to be deposed by reserved for submissions.
The Petitioner’s Further Affidavit
40. The Petitioner swore a further affidavit on 5th June, 2023 responding to the 3rd, 4th and 5th R espondent’s replying affidavit and maintaining that even if it was to be found that he had fraudulently or unlawfully acquired Kenyan citizenship, he was entitled to due process or criminal sanctions under the law and not to be illegally deported the way it was done. That under section 21 of the Kenya citizenship and Immigration Act., the Cabinet Secretary may revoke citizenship earned through "registration" on the grounds mentioned under Article 17 of the Constitution if there is adequate proof and the Citizenship Advisory Committee recommends it.
41. According to the petitioner, it is absurd that the 3 rd , 4 th and 5 th Respondents fault him for allegedly not following the due process of acquiring an Identity card, and react to this allegation by not following the due process towards the deportation of the petitioner. my deportation. That no recommendation or explanation was given about the illegal deportation from Kenya hence, due process was not adhered to.
42. That the Cabinet Secretary is required to give written notice and inform the person whose Identity Card is due to be revoked of the intention to revoke, as well as the reasons for the action. That the Cabinet Secretary must then provide the person who has received such notice with an opportunity to present reasons why his or her Identity Card should not be rescinded.
Oral testimony
43. The petitioner also testified on oath on 28 th October, 2025 and was cross examined after adopting his sworn affidavits and statement filed in court in support of the petition as pleaded and deposed and in cross examination, he stated that he did not apply to be issued with a Kenyan national identity card. He complained of illegal deportation without due process in violation of his rights by the respondents. He stated that he applied for a residence permit and denied being issued with the national identity card No. 39827004. He however admitted in cross examination that he was issued with a Kenyan national identity card in 2021 June.
44. The petitioner stated that he was aware that he ought to have lived in the country for 7 years before applying for Kenyan citizenship. He denied the suggestion that he had not been in Kenya for 7 years and stated that he was aware that it was illegal for a foreigner to possess a Kenyan identity card but that he followed the procedure. He denied knowledge of the identity card being issued to him fraudulently saying that he applied for resident permit through e-citizen and was instead issued with an identity card. He denied that he attempted to apply for a Kenyan passport.
45. In reexamination, the petitioner reiterated that the issue was his deportation without due process and NOT being told the reason for deporting him.
Submissions
46. The petitioner’s counsel filed written submissions dated 5 th June, 2023 and supplementary submissions dated 29 th October, 2025, the petitioner frames the following combined issues for determination:
1. Whether due process was followed in the Petitioner’s deportation?
2. Whether there is an infringement on Petitioner’s constitutional rights and freedoms?
3. Whether this Honourable Court is rightly placed to determine the issue of the issuance of the Petitioner’s Kenyan Identity Card?
4. Whether the Petitioner is entitled to the reliefs sought?
47. On the first issue of whether due process was followed in the petitioner’s deportation, it was submitted that the Petitioner did not have any matter at the police before and that there were no extradition trials against him. That he was never served with an order declaring him a prohibited immigrant and for his deportation before he was handed an air ticket and boarding pass for Bosnia hence due process was not followed in his deportation. Reliance was placed on Section 49 (8) of the Kenya Citizenship and Immigration Act which provides that "an immigration officer may, by summons in writing, require any person other than a citizen of Kenya to attend at his office and to furnish to that officer such information, documents and other particulars as are necessary for the purposes of determining whether that person should be permitted to remain in Kenya."
48. According to the petitioner, the above section does not entail arbitrary deportation nor does it justify a situation whereby a foreign national is summoned, held at the immigration offices or cells and then escorted to the next available flight without being afforded a reasonable opportunity to defend himself or show cause why he ought not to be deported or seek court intervention. That a procedure that excludes a fair process or due process cannot meet the constitutional test.
49. Counsel further cited Section 2 of the Act which defines deportation as: - “deportation” means the action or procedure aimed at causing an illegal foreign national to leave the country either voluntarily or compulsorily, or under detention in terms of this Act and the verb ‘to deport’ has a corresponding meaning;" and submitted that there is no evidence on record that the Petitioner was an illegal foreign national in Kenya.
50. It was urged that the speedy manner in which the deportation process was undertaken raises fundamental questions of whether he was accorded sound justice or was accorded an opportunity to show cause why he should not be deported. Reliance was placed on the writings by Brooks Holland who describes such conduct as " The Two-Sided Speedy Trial Problem? Further reliance was placed on the discussion by Shon Hopwood who while invoking the maxim "justice delayed is justice denied" considered the fuller picture of criminal justice, postulates what he calls the flip side of the said maxim and argues that it poses an equal danger, which danger was ably brought out by Martin Luther King, Jr.’s Letter from Birmingham Jail where he wrote:- “justice too long delayed is justice denied.” Not because delays contrary to justice should be tolerated for any time. Rather, because the flip side of justice delayed can be an equal danger: a rushed, unconsidered justice ."
51. According to the petitioner, a rushed speedy trial is not envisaged by the Constitution hence there was no fair trial at all accorded to the petitioner before he was speedily deported. He cited the decision In Li Wen Jie & 2 Others V Cabinet Secretary, Interior and Coordination of The National Government & 3 Others [2017] eKLR where the court is said to have stated that the Constitution does not distinguish in some respects between the rights of citizens and non-citizens and that the only right denied to foreigners is the right to vote or vie for elective offices while all other rights are written without such a limitation.
52. The petitioner also submitted citing the U.S. Supreme Court Judge, Justice William Brennan who is said to have commented that “illegals had rights because they were “persons” and stated that:
“The illegal aliens who are … challenging the state may claim the benefit of the Equal Protection clause which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws .’ Whatever his status under immigration laws, an alien is a ‘person’ in any ordinary sense of the term…..”
53. The petitioner submitted that the Universal Declaration of Human Rights explicitly guarantees the rights of due process, political expression and association, and equal protection. Article 2(5) of the Constitution expressly imports the general rules of international law and makes them part of the laws of Kenya. Accordingly, it was submitted that this court should find that the speedy manner in which the deportation process of the Petitioner was undertaken is a mockery to justice and cannot, taking all into account qualify to be called a fair process hence the principles of natural justice were flouted and should not be left to stand.
54. On the second issue of whether there is infringement of the petitioner’s constitutional rights and fundamental freedoms, the petitioner submitted that first, the respondents violated his right to fair administrative action because the Petitioner was never granted any hearing nor was he informed of any charges against him before any declarations and consequently the ultimate deportation of the Petitioner. Further, that the petitioner was given time to know when the declaration allegedly made by the Ministry of Internal Affairs was made and on what grounds, since no hearing was accorded to him and neither were the charged against him substantiated. Reliance was placed on Oumarou Moumouni Ali V Director General Kenya Citizens And Foreign Nationals Management Services & 3 Others [2020] Eklr where the Court is said to have cited the Constitutional Court of South Africa in the case of President of the Republic of South Africa and Others Vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1 , where it was stated that:
“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice . These standards will, of course, be informed by the common law principles developed over decades…”
55. Further reliance was placed on the Court of Appeal case of Judicial Service Commission V. Mbalu Mutava & Another (2014) eKLR where it was held:
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights . The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires form which administrative law under the common law was developed. ”
56. The petitioner’s counsel also relied on High Court Petition No. 586 Of 2012 Between Bashir Mohamed Jame Abdi And Minister For Immigration & Others where Justice I. Lenaola (as he then was) is said to have held that:
“By denying the subject Abdi Bashir Mohamed alias Cabdiqani Bashir Mohamed entry into Kenya and deporting him to the UK without a formal process or service on him with any written allegations, reasons or order/s and without according him a hearing, to contact his family or counsel, to appeal against the order of denial of entry into Kenya d deportation to the UK was a violation of the subject’s constitutional rights of a citizen under Article 123, his fundament rights and freedoms as to equal treatment and equal action/justice, to deprivation of the society and recognition of his rights to a fair hearing under Articles 27(1), 45(1) and 47 of the Constitution
57. The petitioner urged this court to find that the deportation of the Petitioner to Bosnia without any formal process or the timely service on him with the declaration, written allegations, reasons and failure to accord him a hearing and giving him time to appeal against the deportation order or challenge the same, the Respondents violated the Petitioner’s constitutional rights under Article 47 of the Constitution.
58. The petitioner further submitted that his right to equality before the law and freedom from discrimination under Article
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