[2021] KEHC 5858 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

MISC APPLICATION. E121 OF 2021

ANTHONY NJUGUNA NDUNGU............................................………APPLICANT

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS...................... 1ST RESPONDENT

THE INSPECTOR GENERAL OF POLICE………..……….…2ND RESPONDENT

DIRECTOR OF IMMIGRATION…………..………….……….3RD RESPONDENT

RULING

1. The subject of the ruling is a notice of motion application dated 14th April 2021, premised on the provisions of; Article 39, 47 and 159 of the Constitution of Kenya. It is supported by the grounds thereto and a supporting affidavit of even date sworn by the applicant.

2. The applicant prays for orders that; the Honorable court, be pleased to issue an order directing the 1st Respondent to release his Kenyan Passport No. CK19886. Further, the Honorable court do issue an order to; vacate the stop orders instructed by the 1st Respondent against the applicant. That the cost of the application be provided for.

3. The applicant avers that, he travelled into Kenya on March 17th 2021, aboard Qatar Airlines from Washington DC. That, upon arrival at JKIA Nairobi, he was unlawfully arrested and detained by Immigration Officers who informed him that, there was a stop order against him on alleged complaints of; an offence of threats to kill contrary to; section 223 of the Penal Code, vide enquiry file No.6 of 2019, and/or file No. ODPP/CAM/1313.

4. On basis of the stop order, the 1st Respondent instructed the applicant to surrender his passport and he was subsequently released on personal bond. 0n 25th March 2021, he was advised by officers at, JKIA Police Station that, there was” no case against him” in their records with respect to the alleged complaint.

5. Pursuant thereto he instructed his advocate; Conrad Maloba to write to the 1st Respondent requesting for the release of his passport and he wrote a letter dated 30th March 2021. However, to date there has been no reply. The applicant argues that, there is no plausible reason for confiscation of his passport.

6. That he is apprehensive that, unless the Court intervenes, the Respondents will continue to illegally and unconstitutionally hold his passport and unjustifiably limit his freedom of movement. Further, the Respondents will not suffer prejudice, if application is allowed.

7. The application was served but the Respondent did not file any formal response thereto. Be that as it were, the parties disposed of the application by filing submissions.

8. The applicant filed submissions dated 10th May, 2021. The applicants literally reiterated the averments in the affidavit in support of the application, save to add that, the Respondents un-procedurally and unlawfully confiscated his passport, in that, section 31(e) Kenya Citizenship and Immigration Act provides that, an Immigration Officer or any other law enforcement agency, may suspend a passport if; the holder is a person against whom there is a court order restricting movement or authorizing denial, confiscation or suspension of the passport or travel.

9. Further, section 48(e) of the subject Act provides that; an Immigration Officer shall have power to arrest, restrain, stop or deny departure to any person against whom a warrant of arrest has been issued by a competent Kenyan Court, yet, there was no warrant of arrest against him.

10. That the passport was unlawfully confiscated and was only returned to him upon filing and serving the application. Further, although, the Respondents lifted restriction of movement orders vide a letter dated 13th April 2021, to date, there is no official communication served upon him to ascertain that indeed stop orders have been lifted.

11. That, Article 24 of the Constitution of Kenya, provides that, “fundamental freedom of movement” can only be limited by law and only to the extent that is justifiable. Finally, that as Respondents have deliberately failed or ignored to file a replying affidavit, the court should grant orders prayed for and costs awarded.

12. However, the Respondents filed submissions dated 6th May 2021, and laid a brief background of the matter to the effect that, a complaint was made at Muthangari Police Station, against the applicant over allegations of; threatening to kill, leading to an inquiry initially by the DCIO, Dagoreti North.

13. The enquiry file was forwarded to the 1st Respondent on 26th July 2019, and on 13th August 2019, 1st Respondent wrote to the Immigration Department, vide a letter reference ODPP/CAM/4/1313; to restrain applicant from leaving country, pending outcome of the investigations.

14. Subsequently, further areas of investigation were identified and the file resubmitted for further advice by the 2nd Respondent to the 1st Respondent. On 31st March 2021, the investigation was concluded and a conclusion arrived at that, there was no adequate evidence to sustain any charges. That, it was therefore imperative that, directions to restrain the suspect from leaving the country be lifted.

15. The 1st Respondent submitted that, the applicant’s passport was never confiscated by officer in charge of; JKIA Police Station and is not in the custody of 2nd Respondent. Further the restriction upon the applicant to travel was lifted vide a letter dated 13th April 2021.

16. The Respondents argued that, the right of movement is not absolute and can be limited in the protection of the right to life of any individual. That, section 5(2) (1) b of; the ODPP Act, mandates the 1st Respondent to direct the Police to carry out investigations in regards to any complaints and that is what the 1st Respondent did and further directed for investigations, which eventually led to the decision that there was evidence in the matter.

17. Similarly, the 2nd Respondent, was well within its constitutional mandate in carrying out the said investigations as there was a complaint reported before it. That, the application is spent as the passport is in possession of the applicant and restriction on movement has already been lifted. In that case it should be dismissed.

18. I have considered the application in total in the light of the arguments advanced and I find that; first and foremost, as stated herein, the application is anchored on; Articles, 39, 47 and 159 of the Constitution of Kenya, 2010. Articles 39 and 47 relates to, bill of rights; in particular, freedom of movement and residence and fair administrative action. These articles speak to constitutional rights which are canvassed in the; Constitutional and Human Rights and/or Judicial Divisions of the High Court, as such the jurisdiction of this Court is not properly invoked and on that basis alone, this application fails.

19. Similarly, the provisions of Article 159, of the Constitution deals with Judicial authority, and do not establish and/or confer jurisdiction on this Court. Article 165 does, and in that regard, sub article (6) thereof only allow this Court to exercise supervisory powers over Subordinate courts, Tribunals or any other body exercising quasi-judicial functions and mainly on revision. That, is certainly not what this Court is being asked to do.

20. Secondly, the applicants submitted that subsequent to the filing of the application, the passport he wants released, has since been released and stop order lifted. Obviously the entire application has been overtaken by events and it beats logic why the application was not withdrawn.

21. Thirdly, the Respondents chose not to file a formal response to the application and in that case, the application stands unopposed. The Respondents cannot turn submissions (not made on oaths) into a replying affidavit, to rebut the facts deposed to, in the affidavit in support of the application. Of course, if the application, is not opposed, then the court is left to decide it on the materials advanced by the applicant alone. Submissions are anchored on a formal response.

22. In my considered opinion, since the application is overtaken by events, delving in the merits thereof serves no useful purpose and therefore I order that, the matter be marked as settled and the file closed. If the applicant wants compensation for whatever, reasons, let him move through civil proceedings. No order as to costs is made due to the first two reasons given herein,

23. It is so ordered,

Dated, delivered virtually and sighed on this 14th day of June, 2021

GRACE L. NZIOKA

JUDGE

In the presence of:

Mr Mingo for the applicant

Ms Chege for the Respondent

Ombuna - Court Assistant