[2019] KEHC 10222 (KLR)
Given the conflicting accounts regarding the petitioner's citizenship and the circumstances under which his identity card was issued and confiscated, the court determined that the interests of justice require the matter to proceed by way of oral evidence. This approach allows for cross-examination of witnesses to...
Source-derived case information.
- Citation
- [2019] KEHC 10222 (KLR)
- Parties
- Appellant: Galma Duba Gufu; Respondent: The Hon. Attorney General; Respondent: Minister Internal Security and National Co-ordination
- Court
- High Court
- Court Station
- High Court at Marsabit
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2018
- Procedural Posture
- Constitutional Petition / Directions Before Hearing; Determination on Mode of Evidence
- Outcome
- Matter to proceed by way of oral evidence; directions issued.
- Judges
- SJ Chitembwe
- Legal Topics
- Citizenship Determination, Identity Documents, Due Process, Immigration Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Galma Duba Gufu
Appellant
The Hon. Attorney General
Respondent
Minister Internal Security and National Co-ordination
Respondent
Procedural Posture
Constitutional Petition / Directions Before Hearing; Determination on Mode of Evidence
Legal Issues
- 1 Whether the petitioner is a Kenyan citizen entitled to the release of his identity card.
- 2 Whether the petitioner's arrest and subsequent actions by the respondents were lawful.
- 3 Whether the matter should be determined on the basis of oral evidence and cross-examination.
Ratio Decidendi
Given the conflicting accounts regarding the petitioner's citizenship and the circumstances under which his identity card was issued and confiscated, the court determined that the interests of justice require the matter to proceed by way of oral evidence. This approach allows for cross-examination of witnesses to establish the truth, particularly where the consequences involve the fundamental status of citizenship. The court emphasized its responsibility to avoid erroneously declaring a non-Kenyan as a citizen or vice versa, necessitating a full evidentiary hearing.
Court Disposition
Matter to proceed by way of oral evidence; directions issued.
Orders
- The petition shall be determined by way of viva voce (oral) evidence.
- Witnesses shall be cross-examined to establish the truth.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MARSABIT
PETITION NO.5 OF 2018
GALMA DUBA GUFU.........................................................................................................APPELLANT
VERSUS
THE HON. ATTORNEY GENERAL.........................................................................1ST RESPONDENT
MINISTER INTERNAL SECURITY AND NATIONAL CO-ORDINATION......2ND RESPONDENT
DIRECTIONS
I have read the pleadings and the submissions of both parties. I am satisfied that it will only be prudent to have the petition determined by way of viva vorce evidence. This direction is informed of the following factors:-
1. According to the petitioner, he did undergo the vetting process and was issued with a valid Kenyan identity card number 23412154. This identity card was taken by the Police when he was arrested for loitering. He would like the court to issue orders directing the respondent to release his identity card. It is his contention that both his parents are Kenyans.
2. On the part of the respondent, it is stated that the Petitioner is an Ethiopian and was charged with the offence of being in Kenya illegally. He pleaded guilty and was fined Ksh.5000 or six (6) months imprisonment. He was to be repatriated to Ethiopia after paying the fine or serving the sentence.
3. I have checked with the Moyale Court and the record shows that the petitioner was charged in criminal case No.269/2004 with the offence of obtaining registration by false pretense Contrary to Section 320 of the Penal Code. The results of that case are not given. The Petitioner got his identity card in 2002 and was charged in 2004.
Due to the above scenario, I do find that it will be prudent to take oral evidence and have witnesses cross examined so as to come up with the truth. It is not the intention of the Court to declare a non-Kenya as a citizen of this Country and vice versa. Matter shall proceed by way of oral evidence.
Dated, Signed and Delivered at Marsabit this 14th of February, 2019
S. CHITEMBWE
JUDGE