[2022] KEHC 1556 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A. C. Mrima, J.)

PETITION NO. E074 OF 2022

BETWEEN

DAMOUR FLORIAN EMMERIC......................................................PETITIONER

VERSUS

1. DIRECTOR OF IMMIGRATION SERVICES...........................RESPONDENT

RULING NO. 1

Introduction:

1. The entry, stay and departure of foreign nationals in Kenya is regulated by inter alia the Constitution and the law.

2. Damour Florian Emmeric,the Petitioner herein is a French national who entered into Kenya from the Republic of Tanzania on a Tourist Visa.

3. Vide a Notice dated 4th August, 2021 the Director of Immigration Services,the 1st Respondent herein, declared the Petitioner as a Prohibited Immigrant/Inadmissible Person in Kenya. He was called upon to report to the 1st Respondent with an air ticket to France and a Covid-19 Certificate.

4. The Petitioner is yet to comply. He instead instituted these proceedings around 7 months later challenging the said notice. In the interim, he filed an application by way of a Notice of Motion dated 21st February, 2022 seeking conservatory orders pending the determination of the Petition.

5. The application is opposed hence this ruling.

The Application:

6. The orders sought in the application are as follows: -

1. Due to the urgency hereof, this application be certified urgent, sieve of the same be dispensed with and the same be heard ex-parte in the first instance.

2. Pending the hearing and subsequent determination of this application and petition, a conservatory order be issued restraining the Respondent acting either in person or through servants, agents, police officers, employees or anyone else

3. Then order as to costs.

7. The application is supported by the Petitioner’s Affidavit sworn on even date.

8. In opposition to the application, the Respondents relied on the 2nd Respondent’s Grounds of Opposition.

9. The application was heard by way of oral submissions.

Issues for determination and analysis:

52. I have carefully considered the application, the response thereto and the parties’ submissions. I, hereby, discern the following areas of discussions: -

(i) The nature of conservatory orders;

(ii) The guiding principles in conservatory applications; and

(iii) The applicability of the principles to the applications.

10. I will deal with the above sequentially.

The nature of conservatory orders:

25. In Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR,the Supreme Court discussed, at paragraph 86, the nature of conservatory orders as follows: -

[86] “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay.

26. The Court in NairobiCivil Appeal 151 of 2011 Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW) [2016] eKLR defined a conservatory order as follows: -

5. A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.

27. In Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR the Court had the following to say about the nature of conservatory orders: -

Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.

28. Conservatory orders are, therefore, aimed at preserving the substratum of the matter pending the determination of the main issues in dispute.

29. Given the interlocutory nature of conservatory orders, it is argued, that there is need for a Court to exercise caution when dealing with any request for such prayers. I agree with that proposition for the reason that matters which are the preserve of the main Petition ought not to be dealt with finality at the interlocutory stage.

30. The foregoing was fittingly captured by Ibrahim, J (as he then was) in Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR. The Learned Judge, correctly so, stated as follows: -

The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.

31. The decisions in Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General (2011) eKLR, Platinum Distillers Limited vs. Kenya Revenue Authority (2019) eKLRandKenya Association of Manufacturers & 2 Others vs. Cabinet Secretary – Ministry of Environment and Natural Resources & 3 Others (2017) eKLR also variously vouch for the cautionary approach.

32. A Court, therefore, dealing with an application for conservatory orders must maintain the delicate balance of ensuring that it does not delve into issues which are in the realm of the main Petition. In this discourse, I will, therefore, restrain myself from dealing with such issues.

The guiding principles in conservatory applications:

33. The principles for consideration by a Court in exercising its discretion on whether to grant conservatory orders have been developed by Courts over time. They are now well settled.

34. The locus classicus is the Supreme Court in Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Otherscase (supra) where at paragraph 86 stated the Court stated as follows: -

[86] …… Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant courses.

35. In Board of Management of Uhuru Secondary School vs. City County Director of Education & 2 Others [2015] eKLR, the Court summarized the principles for grant of conservatory orders as: -

(i) The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice.

(ii) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.

(iii) Thirdly, the Court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory.

(iv)Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.

36. In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR the Court summarized three main principles for consideration on whether to grant conservatory orders as follows: -

(a) An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.

(b) Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and

(c) The public interest must be considered before grant of a conservatory order.

37. The above principles are, however, not exhaustive. Depending on the nature of the matter under consideration, there may be other parameters which a Court ought to look into. Such may include the effect of the orders on the determination of the case, whether there is eminent danger to infringement of the human rights and fundamental freedoms under the Bill of Rights, the applicability of the doctrine of presumption of constitutionality of statutes, whether the Applicant is guilty of laches, the doctrine of proportionality, among many others.

The applicability of the principles to the application:

(i)A prima-facie case:

38. A prima facie case was defined in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 to mean: -

…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.

52. In a ruling rendered on 8th February, 2021 in David Ndii & others v Attorney General & others[2021] eKLR, the Court had the following to say about a prima-facie case: -

45. The first issue for determination in matters of this nature, is whether a prima facie case has been established and a prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, it has to be shown that a case which discloses arguable issues has been raised and in this case, arguable constitutional issues.

53. What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki -vs- Attorney GeneralCivil Appeal No. 70 of 1991 (1990-1994) EA 156, (1992) KLR 8. The Court, in an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows: -

It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of his complaint. If he fails to show……. that there has been a failure of public duty, this court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables this court to prevent abuse by busy-bodies, cranks and other mischief-makers... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought.(emphasis added).

54. In Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, the Court while expounding on what a prima-facie case or arguable case is, stated that such a decision is not arrived at by tossing a coin or waving a magic hand or raising a green flag, but instead a Court must undertake an intellectual exercise and consider without making any findings, the scope of the remedy sought, the grounds and the possible principles of law involved.

55. The Court of Appeal in Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another(2015) eKLR while dealing with what a prima facie case is, made reference to Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396, when the Judge stated thus: -

If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.

56. In sum, therefore, in determining whether a matter discloses a prima-facie case, a Court must look at the case as a whole. It must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law. In so doing, a Constitutional Court must be guided by Articles 22 (1) and 258(1) of the Constitution which provisions are on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or the when the Constitution has been contravened, or is threatened with contravention.

57. In the Petition, the Petitioner seeks the following prayers: -

a) A declaration be and is hereby issued that the Respondents’ decision purporting to confiscate the Petitioner’s passport is a violation of the Petitioner’s rights to equal protection of the law under Article 27, to free movement under Article 39 and to Fair Administrative Action Under Article 47 of the Constitution and is accordingly null, void and of no effect in law.

b) A declaration be issued that the Respondent’s decision dated 4th August, 2021 issued against the Petitioner are illegal and void and are hereby quashed.

c) An Order for mandamus be issued compelling the Respondent to remove the Petitioner’s name from the list of prohibited Immigrants or inadmissible person within 14 days from the date of service of the decision and notify the Petitioner of the compliance in writing.

d) A permanent injunction be 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) An order of prohibition be issued restraining the respondent by themselves and/or their agents from in any way interfering with the Petitioner’s rights and/or freedom of movement in and out of the country otherwise than by strict compliance with the Kenya Citizenship and Immigration act and Fair Administrative Actions Act.

f) An order of prohibition be issued restraining the Respondent by themselves and/or their agents from in any way interfering with the petitioner’s rights to leave and re-enter the Republic of Kenya as and when he please.

g) An order of mandamus be issued directing the Respondent to forthwith consider and issue the Petitioner (if need be) with appropriate Permits.

h) General damages.

i) Costs of this petition

j) Any further relief or orders that this honourable court may deem just and fit to grant.

58. For the Petitioner to succeed in demonstrating that he has a prima facie case against the Respondents herein, he must, on a priority basis, conform that he is lawfully in Kenya.

59. As stated above, the Petitioner entered into Kenya from Tanzania on a Tourist Visa. The entry was lawful. He annexed copies of the Visa he obtained on entry and the subsequent renewal. His last Visa was issued on 11th November, 2021 for 3 months. It expired around 10th February, 2022. Since then the Petitioner has not acquired any other Visa.

60. At the hearing of the application, the Court asked Counsel for the Petitioner to address the issue of the Petitioner’s current status in Kenya. However, Counsel was not able to shade some light on the same despite conceding that the Petitioner’s Visa expired in February 2022.

61. On the basis of the foregoing, there is prima facie evidence that the Petitioner is likely to be in the country illegally after the expiry of his visa, that is since the 11th February, 2022. That is a period of over a month.

62. I have carefully considered the record. There is no evidence that the Petitioner made any application for any visa or has, in any other manner, endeavored to regulate his stay in the country after the expiry of the visa.

63. In such a case, unless otherwise demonstrated, the Petitioner is unlikely to convince this Court that he has a prima-facie case against the Respondents.

64. Having found that the Petitioner has not established any prima-facie, then in line with the Court of Appeal in Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Anothercase (supra) ‘that is the end of any claim to interlocutory relief’.I hence choose to end this journey here.

65. Even with the foregoing holding, suffice to say that the Petitioner reserves the right to adduce further evidence on his status in the country and even if he exits the country, he still has the right to sustain the Petition.

66. In any event, this Court shall take steps for an expedited hearing of the Petition.

67. Without much ado, this Court finds that the application is not merited and issues the following orders: -

(a) The Notice of Motion dated 21st February, 2022 ishereby dismissed.

(b) The Amended Petition shall be heard by way of reliance on the pleadings, Affidavit evidence and written submissions.

(c) The Respondents shall have 14 days within which to file and serve any response to the Amended Petition.

(d) The Petitioner shall file and serve any supplementary response, if need be, together with written submissions within 14 days of (c) above.

(e) The Respondents shall file and serve their respective written submissions within 14 days of service.

(f) Highlighting of submissions on a date suitable to the Court and the parties.

Orders accordingly.

DELIVERED, DATEDandSIGNED atNAIROBIthis14thday ofMarch, 2022.

A. C. MRIMA

JUDGE

Ruling No. 1virtually delivered in the presence of:

Mr. Ondari,Counsel for the Petitioner.

Miss. Kiramana,Counsel for the Respondents.

Elizabeth Wanjohi– Court Assistant.