https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7318

**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……...1ST RESPONDENT** **INSPECTOR GENERAL OF POLICE…………………2ND RESPONDENT** **MINISTRY OF INTERIOR AND COORDINATION** **OF NATIONAL GOVERNMENT………………………3RD RESPONDENT** **DIRECTOR GENERAL, IMMIGRATION** **AND CITIZEN SERVICES………………………………4TH RESPONDENT** **ATTORNEY GENERAL………………………………...5TH 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 14th November, 2022 until 13th 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 9th March, 2021, which employment contract was to last until 31st December, 2025 meaning, he was expected to keep renewing residence his visa until 31st December, 2025. 3. He pleads and deposes that on 23rd 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 24th 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 8th 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 27th April, 2026. 11. The petition is further supported by the affidavit sworn by the petitioner and the affidavit of Nancy Anyango on 4th 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: 23. **A declaration that the Respondents contravened the rights of the Petitioner’s guaranteed under Articles 24, 27 and 28 of the constitution.** 24. **A declaration that the Respondents contravened the rights of the Petitioner’s guaranteed under Article 29 of the Constitution.** 25. ***An order be and is hereby issued prohibiting the 1st, 2nd and 3rd 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.*** 26. ***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.*** 27. ***A permanent injunction restraining the 4th Respondent from denying the Petitioner entry into the country on the basis of the facts subject before this Honourable Court.*** 28. ***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.*** 29. **The Respondents shall pay the costs of this petition to the petitioner.** **The 2nd, 3rd, 4th and 5th Respondents’ Replying Affidavits** 1. The 1st respondent had filed grounds of opposition and submissions but was excused from these proceedings on 12th April, 2023 by Thande Mugure J 2. 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. 3. 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. 4. 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. 5. 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 30th 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. 6. 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. 7. 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. 8. In the affidavit sworn 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. 9. 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. 10. 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\. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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** 1. The Petitioner swore a further affidavit on 5th June, 2023 responding to the 3rd, 4th and 5th Respondent’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. 2. According to the petitioner, it is absurd that the 3rd, 4th and 5th 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. 3. 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** 1. The petitioner also testified on oath on 28th 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. 2. 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. 3. In reexamination, the petitioner reiterated that the issue was his deportation without due process and NOT being told the reason for deporting him. **Submissions** 1. The petitioner’s counsel filed written submissions dated 5th June, 2023 and supplementary submissions dated 29th October, 2025, the petitioner frames the following combined issues for determination: 2. **Whether due process was followed in the Petitioner’s deportation?** 3. **Whether there is an infringement on Petitioner’s constitutional rights and freedoms?** 4. **Whether this Honourable Court is rightly placed to determine the issue of the issuance of the Petitioner’s Kenyan Identity Card?** 5. **Whether the Petitioner is entitled to the reliefs sought?** 6. ***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."*** 7. 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. 8. 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 isno evidence on record that the Petitioner was an illegal foreign national in Kenya. 9. 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**." 10. 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. 11. 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…..”** 1. 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. 2. 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…”** 1. 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.”** 1. 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** 1. 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. 2. The petitioner further submitted that his right to equality before the law and freedom from discrimination under Article 27 of the Constitution was violated by his unprocedural deportation. Reliance was placed on the High Court **Petition No. 586 of 2012 between Bashir Mohamed Jame Abdi And Minister For Immigration & Others** (supra) 3. Further submission was that the Petitioner, a foreign national, has rights and is entitled to equal protection of the law, is not to be denied any of the inherent human rights or those rights that our Constitution guarantees, even if limited to some extent. That he is entitled to the reasons for his deportation or to be watch-listed hence section **33(1)** **of the** **Kenya Citizenship and Immigration Act** setting out all the reasons that can form the basis for the deportation of an immigrant which has have not been laid or substantiated as a basis in this instance. 4. On alleged infringement of the right to huma dignity, as guaranteed under Article 28 of the Constitution, it was submitted that *the* Petitioner was wrongly arrested and held incommunicado until he arrived at the airport, with no explanation to him of 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. Reliance was placed on the case of **Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 6 Others; Kenya National Commission on Human Rights (Interested Party) [2018] eKLR** where the Courtstated at paragraph 98 that**: -** ***“In 2010, the people of Kenya adopted an expensive Bill of Rights to ensure that they did not experience the kind of violation of human rights the country had witnessed in the years past. Article 19 of the constitution states therefore, that the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.*** ***Article 19(2) further states, that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings and that the rights and fundamental freedoms in the Bill of rights belong one to each individual and are not granted by the state. They can only be limited as contemplated by the constitution itself.”*** 1. It was submitted that even where one is perceived to be a criminal, he must be subjected to due process. In this case, it wa submitted that the conditions the Petitioner was subjected to amounted to torture and inhuman and degrading treatment that are absolutely outlawed by the Bill of Rights, which torture does not have to be physical alone, but that mental and psychological harassment too amounts to torture. The petitioner cited the **Miguna Miguna case** (supra) which cited **Article 1 of the UN Convention against Torture and other Cruel and Inhuman or Degrading Treatment** which defines the term ‘torture as; **“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity**.” 1. Further reliance was placed on the Court of Appeal case of **Moses Tengenya Omweno V Attormey General (Supra*)***citing the East African Court of Justice Decision in **Samuel Mukira Mohochi -v- Attorney General of Uganda, EACJ Reference No. 5 of 2011,** that **detention is indeed deprivation of liberty. When it is illegal, it is not only an infringement of the freedom of movement, but also an act that undermines one’s dignity**. 2. It was submitted that the forcible removal of the Petitioner from Kenya without extradition proceedings, without due process and without according him an opportunity to be heard and the incommunicado detention by the police prior to forcible removal effectively amounted to torture, inhuman and degrading punishment or treatment. 3. On alleged infringement of freedom and security of a person under Article 29 of the Constitution, it was submitted that even assuming that the Petitioner deserved to be removed from Kenya, he had to be subjected to the provisions 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 Act. That the Respondents were under a duty to comply with constitutional standards of procedural fairness and fair hearing. 4. 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. That their actions were not in accord with the Constitution and the law thus violated Article 29(a) which guarantees every person the right to freedom and security of the person which includes the right not to be deprived of freedom arbitrarily or without just cause. 5. On whether this Court is rightly placed to determine the issue of issuance of the petitioner’s Kenyan identity card, the petitioner’s counsel gave a narration of what he called the chronicles of the acquisition of the Petitioner’s Kenyan Identity Card, which the Respondents allege to have been acquired illegally, though not given on oath, of how the petitioner had been defrauded of millions of shillings by the immigration officials who were frustrating him when he sought the Kenyan permanent residence permit and ended up issuing him with a Kenyan identity card thereby committing an illegality which he regrets, arguing that corruption is a two way affair yet only the foreigner like himself was subjected to unfair treatment, leaving out the perpetrators to continue with their illegal trade. 6. According to the petitioner, notwithstanding the narrative, this issue of illegally obtaining a Kenyan national identity card would squarely fall within the Jurisdiction of a Criminal Court as the matter before this Court is purely for illegal deportation. He urges that his case for illegal deportation be canvassed with first, thereafter, while within the borders of the Country, the Respondents may be at liberty to question the Petitioner’s acquisition of the Kenyan Identity Card. 7. Therefore, on the allegation by the 3rd, 4th and 5th Respondents in their Replying Affidavit of 19th April 2023 that they received a confidential report from the National Intelligence Service that the Petitioner had fraudulently acquired Kenyan Identification Card without following due process of naturalization, it was submitted that this is an issue that would require an Investigating Officer to establish that suspicion to the standard of proof beyond a reasonable doubt, different from the standard of proof that would be required in the illegal deportation case. Further, it would be unfair to try the Petitioner on the allegations while not within the country. 8. That it was unlawful and illegal for the Respondents to have deported the Petitioner as opposed to letting him face criminal charges here in Kenya, which would otherwise have given him an opportunity to be heard. 9. On whether the petitioner is entitled to the reliefs sought, it was submitted that Courts are protectors ofthe Constitution and the fundamental values embedded in it, that is; the rule of law, fundamental justice and preservation of the democratic process*.* Reliance was placed on the Court of Appeal decision in **Attorney General V Kituo Cha Sheria & 7 Others [2017] eKLR**that: **“…rights have inherent value and utility and their recognition, protection and preservation is not an emanation of state largely because they are not granted, nor are they grantable, by the State. They attach to persons, all persons, by virtue of their being human and respecting rights is not a favour done by the state or those in authority. They merely follow a constitutional command to obey”.** 1. Further, that the court in the above case was clear on the application of the Bill of Rights stating that**:** **“Article 20 is couched in wide and all-pervasive terms, declaring the Bill of Rights to apply to all law and to bind all state organs and all persons. None is exempt from the dictates and commands of the Bill of Rights and it is not open for anyone to exclude them when dealing with all matters legal. It is the ubiquitous theme unspoken that inspires, colours and weighs all law and action for validity. It is provided for in expansive terms declaring that its rights and fundamental freedoms are to be enjoyed by every person to the greatest extent possible. The theme is maximization and not minimization; expansion, not constriction; when it comes to enjoyment and, concomitantly facilitation and interpretation. What is more, courts, all courts, are required to apply the provisions of the Bill of Rights in a bold and robust manner that speaks to the organic essence of them ever-speaking, ever-growing, invasive, throbbing, thrilling, thriving and disruptive to the end that no aspect of social, economic or political life should be an enclave insulated from the bold sweep of the Bill of Rights. Thus Courts are commanded to be creative and proactive so that the Bill of Rights may have the broadest sweep, the deepest reach and the highest claims they are enjoined in their interpretive role to adopt a pro-rights realization and enforcement attitude and mind-set calculated to the attainment as opposed to the curtailment of rights and fundamental freedoms…they must aim at promoting through their interpretation of the Bill of Rights the ethos and credo, the values and principles that underlie and therefore mark us out as an open and democratic society whose foundation and basis is humanity, equality, equity and freedom.”** 1. Further reliance was placed on Katiba **Institute V President’s Delivery Unit & 3 Others [2017] eKLR** which referred to the case of **Tinyefuze v Attorney General of Uganda** (supra), where the court held that: “**If a Petitioner succeeds in establishing breach of a fundamental right, he is entitled to the relief in exercise of Constitutional jurisdiction as a matter of course.”** 2. It was submitted that State organs, administrative bodies or public officers should not act in flagrant disobedience and or violation of the Constitution and laws of the land. That they have an obligation to obey the Constitutional command and the law and, in the event, they violate any of them, their actions will in no doubt be declared unconstitutional and illegal hence the declarations sought are merited. 3. Further submission was that this court was not dealing with authenticity or otherwise of how the petitioner obtained a Kenyan national identity card but with his illegal deportation without following due process. He relied on the cases of PJF v Director of Immigration Services and 3 others, **Ajabu Technology Solutions Ltd [2023] eKLR** to argue that the Cabinet Secretary should have interrogated the manner in which the subject was declared unlawfully in Kenya before making an order removing him from the country; the case of **Hannan v Director General [2017]e KLR** to urge that Article 47 guarantees must be protected by judicial intervention. 4. It was submitted that suspicion under section 33 of the KCIA cannot be sufficient to warrant deportation without due process, relying on **Olayiwola v Director General of Kenya Citizens and National Management Services and 3 others JR e183 OF 2024-Judgment on 25 June, 2025** on the cardinal rule of natural justice that no person shall be condemned unheard. 5. It was further submitted that the petitioner did not have to lodge any complaint with the police before approaching this court as Article 22 empowers him to approach this court alleging that his rights were either violated or threatened with violation. 6. On award of damages, the case of M**oses Tengeya Omweno Case (Supra) was cited, where** the Court of Appeal in considering the award of damages is said to have analyzed several cases from the High Court and Court of Appeal where the courts had awarded damages for violation of fundamental rights and freedoms and reached the conclusion that a global award was appropriate. 7. Therefore, it was submitted that in this case, the facts revealed violation of several fundamental rights and freedoms hence the court determined that; **“We are conscious and swayed by the general trend of award of general damages by the High Court and the Court of Appeal in the various cases cited above. Persuaded by the award in these cases, it is our considered view that the sum of Ksh. 2,000,000/= was not commensurate with all the constitutional violations meted upon the appellant. The said sum was patently inadequate. We set aside the lump sum award of Ksh. 2,000,000/= as general damages and substitute it with a lump sum of Ksh. 5,000,000/= to cover all violations of the constitutional rights of the appellant”** 1. Finally, it was submitted that since the facts in the**Moses Tengeya Omweno Case (Supra)**were on all fours with the facts of this case, a figure of Kshs 5,000,000.00 for the violations of the petitioner’s rights was proposed. 2. The petitioner urged this Court to allow the petition with costs. **The 2nd, 3rd and 4th Respondents’ submissions** 1. The three respondents filed submissions dated 20th September, 2023 and framed three issues for determination namely: 1. ***Whether the respondents’ actions were illegal*** 2. ***Whether the petitioner’s alleged constitutional rights were violated*** 3. ***Whether the petitioner is entitled to the reliefs sought.*** 2. On the first issue, the respondents submitted, setting out the statutory functions of the 4th respondent and urged that the presence of the petitioner was found to be detrimental to the security of Kenya hence, he was declared a prohibited immigrant as stipulated in section 33 of the KCIA, followed by a declaration under section 43 (1) and (2) of the KCIA for the removal of the petitioner from the country to his home country. 3. According to the respondents, section 43 cited above does not require a a conviction for an illegal immigrant to be deported but conduct described under the Act. They also relied on Article 13 of the ICCPR to the effect that expulsion of an unwanted alien can be done pursuant to a decision reached in accordance with the law, which right to expel, according to the respondents, is inherent in the host country. A similar citation was made regarding Article 12 (4) of the African Charter on Human and Peoples Rights. They relied on the case of **Fong Yue Ting v United States 149 US 698 (1893)** on the right to exclude aliens being inalienable right of every sovereign state. 4. It was further submitted relying **on Knauf v Shaugnessy 338 US 537 (1950) pp 539-547**, urging that it was held that it not is within the province of any court, unless authorized by law, to review the determination of the political branch of government to exclude a given alien. 5. It was therefore submitted that the 3rd respondent acted within the law and that there is no evidence of abuse of autonomy given to the 3rd respondent by statute hence this court should not intervene. 6. On the second issue, it was submitted that the rights which the petitioner alleges that were violated by the respondents are not absolute but subject to limitations under rticle 24 of the Constitution. That arrest, detention and deportation are all legal actions premised on the constitutional and statutory provisions. 7. It was submitted that sections 24 and 27 of the National Police Service Act provides for arrest of offenders while the functions of the NPS are set out in the Act at sections 34, 35 and 39. On investigations, it was submitted that Article 245 of the Constitution mandates the police to investigate any offence and enforce the law against any person. Further, that section 43 of the KCIA provides for confinement in custody of a prohibited immigrant pending departure, whether or not any proceedings have been commenced by such person. 8. That the petitioner having been declared a prohibited immigrant, pursuant to section 33 of the KCIA, he remained in police custody for a period of less than 24 hours pending his deportation to his home country which deportation was done immediately and in compliance with section 49 (6) of the Act that such persons be removed from the country within 90 days from the date of removal order. 9. It was submitted that the reason for deportation was because of the petitioner irregularly obtained Kenyan citizenship and that since no conviction is required under section 33 for removal to be effected, the respondents were within the law in the manner that they acted, albeit acknowledging that they were not asking this court to make a finding of guilt on the unlawful acquisition of a Kenyan identity card, an act which he conceded in his submissions. That upon his arrest, he remained in police custody and that his belongings too were being held by the police until his departure when they were handed over to him. 10. It was submitted that section 22 of the KCIA does not confer on the petitioner rights of a citizen and that this court has no jurisdiction to order for his readmission into the country, a decision that falls within the administrative jurisdiction of the respondents mainly the 4th respondent who exercises discretion within the legal and constitutional framework. That Article 39 of the Constitution only guarantees rights of citizens to enter the country, not aliens, a matter supported by international conventions such as UDHR, ICCPR and ACHPR. Reliance was placed on the **Knauf v Shaugnessy** (supra) case on admission of aliens not being a right but a privilege. 11. The respondents also submitted that the petition offends the doctrine of separation f powers and that the respondents did not have to seek orders of the court to exercise their mandates and that having deported the petitioner, they cannot be compelled to allow him back into the country. 12. On alleged violation of Article 47, it was submitted that the deportation was not prejudicial to the petitioner at all. Reliance was placed on **R v Cabinet Secretary Ministry of Interior and Coordination of National Government, Director General of Immigration and AG Exparte Richard Boak [2018] e KLR** where the Court is said to have declined to quash the decision of the respondent or prohibit the respondent as no prejudice was demonstrated by the applicant. 13. It was submitted that in his submissions, the petitioner mischievously introduces fresh issues on how he corruptly acquired his citizenship which speaks to his *malafides* intention hence he is undeserving of the orders sought. In the end, the respondents urged this court to dismiss the petition with no orders as to costs. **Analysis and determination** 1. I have carefully considered the Petition, the responses thereto, the respective parties’ submissions and the decisions cited. I find that there are two main issues for determination and these are: whether the declaration of the Interested Party as a Prohibited Immigrant and his deportation from Kenya was in contravention of his rights under Articles 27, 28, 29, 47(1) and (2) and 50 of the Constitution; and what orders should this court make, including the order for damages and costs of the petition? 2. The undisputed facts are that the petitioner was deported without any due process. The respondents contended the petitioner was deported upon intelligence information reaching them that the petitioner had obtained a Kenyan national identity card and was in the process of applying for a Kenyan passport. The Respondents further contended that the declaration of the petitioner as a Prohibited Immigrant was pursuant to Section 33(1) of the Citizenship Act and that the petitioner elected to pay for his air ticket back home for reasons that owing to the nature of his work, he did not want to be tainted. 3. Section 33 of the Kenya Citizens and Immigration Act provides as follows: **33. (1) For purposes of this Act, a prohibited immigrant is a person who is not a citizen of Kenya and who is-** **(a) not having received a pardon–** ***(i)* has been convicted in Kenya or any The Kenya Citizenship and Immigration Act, 2011 28 country of an offence created under a statute for which a sentence of imprisonment is for a minimum term of three years;** **(ii) has been acquitted by a court of any offence and who at the time of acquittal has no valid immigration status;** **(iii) has committed or is suspected of having committed an offence provided for under international treaties and conventions ratified by Kenya ;** **(b) a person engaged in human trafficking, human smuggling, sexual exploitation and sex crimes;** **(c) a person who procures or attempts engage in trafficking or smuggling into and out of Kenya any person for the purpose of engaging in sexual offenses;** **(d) a person who is reasonably suspected to be engaged in or facilitates the trafficking of narcotics, prohibited, controlled or banned substances;** **(e) a person who there is reasonable cause to believe that he is engaged in or facilitates trafficking in persons;** **(f) a person whose presence in or entry into Kenya is unlawful under any written law;** **(g) a person in respect of whom there is in force an order made or deemed to be made under section 43 directing that such person must be removed from and remain out of Kenya;** **(h) a person in respect of whom there is reasonable cause to believe that he or she is engaged in, facilitates any activity detrimental to the security of Kenya or any other state; The Kenya Citizenship and Immigration Act, 2011** **(i) a person in respect of whom there is reasonable cause to believe that he or she is engaged in, facilitates or is sympathetic to acts of terrorism or terrorist activities directed against Kenya or detrimental to the security of Kenya or any other state;** **(j) a person involved in or is reasonably suspected to be engaged in money laundering;** **(k) a person convicted of war crimes or crimes against humanity, genocide, murder, torture, kidnapping or in respect of whom there are reasonable grounds for believing they have financed or facilitated any such acts;** **(l) a person engaged in or suspected to be engaged in illicit arms trade;** **(m) a person engaged in or suspected to be engaged in illegal human body organs trade;** **(n) a person involved or reasonably suspected to be involved in crimes related to patents, copyrights, intellectual property rights, cybercrimes and related crimes;** **(o) a person involved in or reasonably suspected to be involved in piracy or has been convicted of piracy and served his sentence;** **(p) a person who is or has been at any time a member of group or adherent or advocate of an association or organization advocating the practice of racial, ethnic, regional hatred or social violence or any form of violation of fundamental rights;** **(q) a person whose conduct offends public morality;** **(r) a person who knowingly or for profit aids, encourages or procures other persons who are not citizens to enter into Kenya illegally; The Kenya Citizenship and Immigration Act, 2011 30 No. 13 of 2006.** **(s) a person who is seeking to enter Kenya illegally;** **(t) a person who is a fugitive from justice; (u) a person whose refugee status in Kenya has been revoked under the Refugee Act, 2006; and (v) any other person who is declared a prohibited immigrant by the order of Cabinet Secretary subject to the approval of parliament or who was, immediately before the commencement of this Act, a prohibited immigrant within the meaning of the Immigration Act (now repealed).** **(2) For purposes of this Act, an inadmissible person is a person who is not a Kenyan citizen and who- No. 13 of 2006.** **(a) refuses to submit for examination by a medical practitioner after being required to do so under section 48(1)(d) of this Act;** **(b) the family and dependants of a prohibited immigrant;** **(c) incapable of supporting himself and his dependants (if any) in Kenya;** **(d) is adjudged insolvent; (e) anyone who has been judicially declared incompetent;** **(f) an asylum seeker whose application for grant of refugee status has been rejected under the Refugee Act, 2006;** **(3) The Cabinet Secretary may make regulations on admission of regulatory officer’s right to deny entry a person other than an asylum seeker who, upon entering or seeking to The Kenya Citizenship and Immigration Act, 2011 31 enter Kenya, fails to produce a valid and acceptable passport or travel document recognized in Kenya to an immigration officer on demand or within such time as that officer may allow;** **(4) Any other person who is declared an inadmissible person by the order of Cabinet Secretary in line with an objective and written criteria or who was, immediately before the commencement of this Act, a prohibited immigrant within the meaning of the Immigration Act (now repealed), including matters legislated in the public health.** **(5) Subject to Section 34 the entry into and residence in Kenya of a Prohibited Immigrant or an undesirable person shall be unlawful, and a person seeking to enter Kenya shall, if he or she is a prohibited immigrant or undesirable person, be refused permission to enter or transit through Kenya, whether or not he or she is in possession of any document which, were it not for this Section, would entitle him or her to enter or transit through Kenya.** **(6) An immigration officer may issue a pass to a prohibited immigrant or inadmissible person to enter or remain temporarily in Kenya for such period or authorize such prohibited immigrant or inadmissible to transit through Kenya subject to such conditions as may be specified in that pass or for transit purposes.** **(7) The Cabinet Secretary may make Regulations for the declaration of prohibited immigrants or inadmissible persons.** **(8) 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.** 1. Section 33(3) of the Citizenship Act makes it clear that any order given by the Cabinet Secretary under Section 33 ***must be subject to the Constitution and other related laws.*** The question therefore, is, whether the impugned declaration leading to the deportation of the petitioner complied with Article 47(1) and (2) of the Constitution. Article 47 of the Constitution guarantees every person the right to fair administrative action in the following terms: **(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.** **(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.** 1. The right to fair administrative action is implemented by the Fair Administrative Action Act, No. No. 4 of 2015 and Section 4 of the Act provides *that:* - **(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.** **(2) Every person has the right to be given written reasons for any administrative action that is taken against him.** **(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-** **(a) prior and adequate notice of the nature and reasons for the proposed administrative action;** **(b) an opportunity to be heard and to make representations in that regard;** **(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;** **(d) a statement of reasons pursuant to section 6;** **(e) notice of the right to legal representation, where applicable;** **(f) notice of the right to cross-examine or where applicable; or** **(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.** **(4) The administrator shall accord the person against whom administrative action is taken an opportunity to-** **(a) attend proceedings, in person or in the company of an expert of his choice;** **(b) be heard;** **(c) cross-examine persons who give adverse evidence against him; and** **(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.** **(5) Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.** **(6) Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.** 1. Section 2 of the Fair Administrative Actions Act defines an ‘administrative action’ and an ‘administrator’ as follows: - **‘administrative action’ includes –** **(i) The powers, functions and duties exercised by authorities or quasi-judicial tribunals; or** **(ii) Any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;** **‘administrator’ means ‘a person who takes an administrative action or who makes an administrative decision’.** **‘decision’ means any administrative or quasi-judicial decision made, proposed to be made, or required to be made, as the case may be**. 1. *In***Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR***the Court of Appeal expressed itself on Article 47 of the Constitution and stated that:* **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 from which administrative law under the common law was developed.** 1. In the South African Constitutional Court in **President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others** ***CCT16/98) 2000 (1) SA 1*** the Court ring-fenced the importance of fair administrative action as a constitutional right. The Court, citing Section 33 of the South African Constitution which is similar to Kenya’s Article 47 of the Constitution stated as follows: **“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 of 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…”** 1. In**Republic v Fazul Mahamed & 3 Others ex-parte Okiya Omtatah Okoiti [2018] eKLR***,* the Court discussed this right to fair administrative action as follows: **“25. In John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Ano[[39]](http://kenyalaw.org/caselaw/cases/view/158432/%22%20%5Cl%20%22_ftn39) the Court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature.** **These are: -** **a. Illegality - Decision makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be "illegal". Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond it powers.** **b. Fairness - Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.** **c. Irrationality and proportionality - The Courts must intervene to quash a decision if they consider it to be demonstrably unreasonable as to constitute 'irrationality" or 'perversity' on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948 in the celebrated decision of Lord Green in** ***Associated Provincial Picture Houses Ltd vs Wednesbury Corporation***: **-** **If decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere...but to prove a case of that kind would require something overwhelming...”** 1. In this case, the petitioner claims and there is no denial that he was ambushed with the declaration that he was a prohibited immigrant thereby making him an unwanted person in Kenya. This fact of being unwanted was only made known to him while he was under arrest and detained at the airport awaiting processing of his deportation. Although the respondents pitch tent to his illegal acquisition of a Kenyan National identity card and indeed, the petitioner admits that he was issued with the Kenya identity card unprocedurally, no doubt, the queried declaration of the petitioner as a prohibited immigrant was an administrative action, which had to comply with Article 47 of the Constitution and had to be expeditious, efficient, lawful, reasonable and procedurally fair. 2. The respondents have annexed the declaration to their affidavits, although the petitioner in his oral testimony and affidavit denies being issued with the declaration, he mentions in his statement that he was given some papers while he was at the airport but that he did not have adequate time to look at them. There is no contrary view that those papers were the declaration and the order for deportation annexed to the respondents’ affidavits. 3. The said declaration and order are in writing. For that reason, there was compliance with Article 47(2) of the Constitution as read with Section 4(2) of the Fair Administrative Action Act reproduced above. The decision was also lawful to the extent that it was predicated on the written law. However, on procedural fairness, the 2nd, 3rd and 4th respondents were expected, at the bare minimum, to adhere to the provisions of section 4(3) and (4) of the Fair Administrative Actions Act by: ***(i) Notifying the petitioner of the intention to issue the impugned declaration;*** ***(ii) According the petitioner an opportunity to be heard and to make representations in that regard;*** ***(iii) Informing him of the right to a review or internal appeal against an administrative decision, where applicable;*** ***(iv) Informing him of the right to legal representation;*** ***(v) Informing him of the right to cross-examine where applicable;*** ***(vi) Availing the information, materials and evidence to be relied upon in making the impugned declaration.*** 1. Article 13 of the ICCPR provides: ***“An alien lawfully in the territories of a state party to the present covenant may be expelled therefrom only in pursuance of a decision reached in accordance with the law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority”.*** 1. This is contemplated in section 57 of the Kenya Citizenship and Immigration Act which provides for review and appeal. 2. The Respondents did not take any of the stated statutory steps. The declaration to declare the petitioner a prohibited immigrant was therefore made unilaterally contrary to Article 47 of the Constitution, since section 33 of the KCIA which mandates compliance with the law and the Constitution and the Fair Administrative Action Act was not adhered to. It is for that reason that I would, without hesitation, find that the decision made against the petitioner was made with procedural impropriety. 3. Additionally, Article 27 of the Constitution guarantees every person the right to equal protection and benefit of the law. The petitioner was never accorded an opportunity to be heard prior to being declared a prohibited immigrant and being deported from the country. For that reason, I find that the petitioner was not accorded equal protection and benefit of the law. 4. Article 39 of the Constitution, provides for freedom of movement and residence. It resonates with section 22(1) of the Kenya Citizenship and Immigration Act by providing that: ***(1) Every person has the right to freedom of movement*** ***(2) Every person has the right to leave Kenya*** ***(3) Every citizen has the right to enter, remain in and reside anywhere in Kenya”.*** 1. This provision is deliberate as it grants Kenyan citizens only, the right to enter, remain and to reside anywhere in Kenya. It deliberately denies other persons not citizens of the country that right. Section 22(1) of the Act provides, ***“Every citizen is entitled to the rights …. (a) the right to enter, exit, or remain in and reside anywhere in Kenya”.*** 1. Article 24 of the Constitution on the other hand provides for limitation of rights and fundamental freedoms. Article 25 provides for fundamental rights and freedoms that may not be limited. These are; ***“(a) Freedom from torture and cruel, inhuman or degrading treatment or punishment*** ***(b) Freedom from slavery or servitude*** ***(c) the right to a fair trial*** ***(d) the right to an order of habeas corpus”.*** 1. Section 34 of the Kenya Citizen and Immigration Act provides: ***“A person who is not a citizen of Kenya or an asylum seeker shall not enter or remain in Kenya, unless she or he has a valid permit or pass”.*** 1. The petitioner had a valid multiple entry visa which had not expired. It was valid from 14/11/2022 to 13/11/2023, a period of one year. However, in view of my findings in this judgment, it is doubtful that he had a valid work permit and a residence permit. 2. On alleged torture and degrading punishment, contrary to Article 29 of the Constitution, I am unable to find any evidence to demonstrate those violations. The petitioner, from his own evidence, was arrested from his house and briefly held at Muthaiga police station before being driven to the JKIA where he was held for a day as the police prepared for his deportation now that he did not have an air ticket which had to be procured. His movement had to be curtailed out of necessity owing to the fact that he unlawfully held a Kenyan citizenship and had no residence or work permit. His freedom was curtailed temporarily but not arbitrarily or without a just cause. He was held in custody by the police and the period that he was held before being deported, was within 24 hours, which was not unreasonable. Equally, I am unable to find any credible evidence that he was treated or punished in a cruel, inhuman or degrading or in an indignified manner. 3. Before I conclude, I must discuss some appalling facts as revealed by the petitioner and the respondents in this petition. The petitioner is a foreigner who gained admission to Kenya based on the strength of a visa to enter the country, multiple times, within a period of one year from 14/11/2022 to 13/11/2023. The documents presented before this Court reveal that the petitioner was employed at the regional office of CIVIC, an International NGO in Kenya. There is no doubt that even though the petitioner was engaged in employment in the Country, he did not demonstrate that he had applied for or obtained a work permit or residence authorization, which is mandatory under Kenyan immigration laws. 4. Issuance of Work Permits and Passes in Kenya is regulated by Sections 36, 40, 41, and 42, of the Kenya Citizenship and Immigration Act 2011 and the attendant Regulations. All applications for Permits and Passes are made and submitted online on the eFNS [electronic Foreign Nationals Services] Portal [https://fns.immigration.go.ke](https://fns.immigration.go.ke/), accompanied by all the necessary requirements which should be uploaded. Applicants are then required to print Permits and Passes from the eFNS portal once they are processed and issued and present to immigration office for endorsement. 5. From the evidence adduced by the petitioner, on oath, thereby confirming that the contentions by the respondents, he fraudulently acquired a national identity card which is issued only to citizens of Kenya and he remained in the country on the basis of that document and the entry visa which latter document had 8 months to lapse. This court believes that upon the respondents discovering those circumstances, the petitioner was arrested and removed from the country but without being accorded a hearing or due process. 6. This petition therefore presents two competing constitutional imperatives. On the one hand, is the obligation of the State to uphold the Constitution and the law and accord due process to every person within its territory, including non-citizens. The second imperative is that there exists the duty imposed on this Court not to legitimize any violation of the law by lending its authority to such acts of illegality, especially regarding issues of immigration and citizenship documentation. 7. At the outset, this Court emphasizes that constitutional protections are not reserved for citizens alone. Article 20 of the Constitution provides that the Bill of Rights applies to *“all persons.”* The petitioner therefore did not cease to enjoy constitutional protection merely because he was a foreign national or because he was suspected of violating immigration laws. 8. This position finds support in both domestic and international law. Article 13 of the United Nations International Covenant on Civil and Political Rights (ICCPR), to which Kenya is a signatory, provides that an alien, lawfully in the territory of a State shall not be expelled except in pursuance of a decision reached in accordance with law and shall, save where compelling reasons of national security otherwise require, be allowed to submit reasons against his expulsion. Similarly, as stated above, Article 47 of the Constitution guarantees every person the right to administrative action that is lawful, expeditious, reasonable and procedurally fair. 9. Under Article 13 of the International Covenant on Civil and Political Rights, even non-citizens suspected of terrorism should not be expelled without allowing them a legal opportunity to challenge their expulsion. However, the right to procedural protection from being expelled apply only to noncitizens who are “lawfully in the territory of a State Party.” 10. The Court of Appeal in Court of Appeal of Kenya **Judicial Service Commission v Mbalu Mutava & another [2015] eKLR - Civil Appeal 52 of 2014** underscored that Article 47 constitutionalized the duty to act fairly and that procedural fairness is now a constitutional imperative binding on all public authorities. 11. Similarly, in **Dry Associates Limited v Capital Markets Authority**, **[2012] eKLR,** the High Court observed that Article 47 marked a transformative development in Kenya’s administrative law by elevating fair administrative action into a justiciable constitutional right. 12. The High Court in **Ernst & Young LLP v Capital Markets Authority & Another [2017] eKLR,** observed that the respondent: “***is required to observe and accord persons under investigations and or any person likely to be adversely affected by their decision a fair process and in particular it is required to adhere to the principles of natural justice and comply with the provisions of Articles 50 (1) and 47 of the constitution.”*** 13. Similarly, the High Court decision in **Republic v County Government of Mombasa Ex-parte Outdoor Advertising Association of Kenya [2014] eKLR** was to the effect that: ***“There can never be public interest in breach of the law … because public interest must accord to the Constitution and the law as the rule of law is one of the national values under Article 10 of the Constitution.” And as the Court of Appeal added in Capital Markets Authority v Jeremiah Kiereini & Another [2014] eKLR, individual rights “are so fundamental that they cannot be limited even by public interest.”*** 1. This Court therefore readily accepts that the respondents were under a constitutional obligation to accord the petitioner due process before effecting his removal from Kenya. Even where a person is suspected of unlawful conduct, State agencies are not absolved from the duty to act within the confines of the Constitution. The Constitution binds the State at all times and in all circumstances. 2. However, the recognition of procedural impropriety does not conclude this matter. This Court must still determine the appropriate relief in the peculiar circumstances of this case. The petitioner urges this Court to grant far-reaching remedies, including declarations of violation, compensatory damages and orders facilitating his return to Kenya so as to resume his employment without any hinderance from the respondents. 3. The difficulty confronting the petitioner is that the factual substratum upon which those remedies are sought is deeply intertwined with illegality. It is also not lost to this Court that the petitioner’s visa expired in 2023 while his contract of employment was to end in 2025. Therefore, allowing him entry into the country without him applying for a visa would Not be lawful at all. 4. More significantly, the material placed before this Court by the respondents show that the petitioner entered Kenya on a temporary entry visa but commenced employment without obtaining the mandatory work permit prescribed under the Kenya Citizenship and Immigration Act. Moreover, rather than regularize his immigration status through lawful means, he procured a Kenyan identity card despite not being a citizen of Kenya. He readily admitted this and blamed the corruption by the immigration officials. 5. This Court is conscious that it is not sitting as a criminal court and therefore cannot conclusively pronounce the petitioner guilty of fraud in the absence of a criminal trial. The presumption of innocence remains a cardinal constitutional principle under Article 50(2)(a) of the Constitution. 6. That said, this Court cannot shut its eyes to the petitioner’s own admitted and undisputed conduct in residing and working in Kenya outside the legal immigration framework. 7. Courts of law are institutions of justice yes, but they are equally guardians of legality. The equitable maxim that “***he who comes to equity must come with clean hands”*** remains relevant even within constitutional adjudication, particularly where discretionary remedies are sought. This principle was well articulated in the old English case of **Holman v Johnson (1775) 1 Cowp 341** concerning the principles behind illegal transactions, where Lord Mansfield stated: ***“The agreement could be enforced because the seller had himself done nothing unlawful.*** ***The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise***[***ex turpi causa***](https://en.wikipedia.org/wiki/Ex_turpi_causa)***, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both were equally in fault, potior est conditio defendentis.”*** 1. That principle has evolved into the doctrine of ***ex turpi causa non oritur action*,** that ***No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.”*** 2. Thus, a court of law cannot exercise judicial authority and enforce contracts, agreements, or administrative actions that are tainted by illegality and in a manner that rewards illegality. Courts will only grant remedies in a manner consistent with public policy and the rule of law. 3. In this case, the petitioner urges this Court not merely to vindicate procedural rights but effectively to facilitate his re-entry into Kenya because of his employment connections despite the undisputed fact that: ***a. his visa has long expired;*** ***b. he never possessed a valid work permit;*** ***c***. ***his employment contract lapsed in 2025 and d. his continued stay was connected to an irregularly obtained Kenyan national identity document.*** 1. To grant the reliefs sought would place this Court in the untenable position of compelling the State to regularize and perpetuate an unlawful immigration and citizenship status of the petitioner. This Court cannot do so. This is because, the sovereign authority of the Republic of Kenya to regulate the entry, residence and employment of non-citizens is recognized both in domestic and international law. No foreign national has an automatic or absolute right to reside or work within Kenya absent compliance with immigration requirements. Neither is a foreigner legally permitted to obtain citizenship upon entry, as did the petitioner herein. 2. Thus, while non-citizens enjoy constitutional protections and non-derogable human rights, the State retains legitimate authority to regulate immigration and citizenship as well as employment. 3. This Court therefore finds that although the petitioner ought to have been accorded procedural fairness before his deportation, the circumstances of this case do not justify the grant of reinstatement orders and or facilitation of re-entry into Kenya. 4. The Court equally declines to award compensatory damages for reasons that constitutional damages are not a matter of course but discretionary remedies intended to vindicate constitutional rights and deter abuse of power. As the Privy Council stated in **Attorney General of Trinidad and Tobago v Ramanoop 2005 UKPC 15, 2006 1 AC 338 (PC),** constitutional compensation is appropriate where necessary to affirm constitutional values, but the remedy remains discretionary and context-specific. The Court in the above cited case stated as follows, per Kangaloo JA: ***“[I]t must first be shown that there has been damage suffered as a result of the breach of the constitutional right before the court can exercise its discretion to award damages in the nature of compensatory damages to be assessed. If there is damage shown, the second stage of the award is not available as a matter of course. It is only if some damage has been shown that the court can exercise its discretion whether or not to award compensatory damages. The practice has developed in constitutional matters in this jurisdiction of having a separate hearing for the*** ***assessment of the damages, but it cannot be overemphasized that this is after there is evidence of the damage. In the instant case there is no evidence of damage suffered as a result of the breaches for which the appellant can be compensated.”33*** 1. In the present case, an award of substantial damages as quantified by the petitioner, even if the said damages were awardable for breach of the petitioner’s rights to a fair administrative action, equal benefit and protection of the law and the right to a fair hearing as established above, would, in practical effect, compensate and reward the petitioner’s conduct that was itself founded upon a continuing violation of not only this Country’s immigration law, but also violation of the law on citizenship, as admitted by the petitioner on oath in these proceedings. This Court is unable to ignore the petitioner’s own role and conduct in creating the circumstances that culminated in his removal. He however, in his extended submissions filed by his advocate, tends to blame the immigration officers for being corrupt. It takes two to tango. The type of transaction that the petitioner was lured into, to apply and obtain a national identity card instead of a resident permit and working in the country without a work permit, just months after he was issued with an entry visa, should have aroused his curiosity and alerted his good conscience that all that he needed was a residence permit and work permit, not citizenship at that early stage of his entry into the country. He ought to have known that he was undertaking an unlawful process which, I am pretty sure, not even his own home country tolerates. 2. I say this because the petitioner is an educated person, whose labour was most needed by an International NGO, which NGO would have facilitated him to get a competent and reputable advocate to advise him on what it entails to apply for residence and work permits. He did not have to feign ignorance and reap from corrupt practices, with his eyes open but in the pretext of corrupt immigration officials frustrating him. In his submissions, his counsel went to great lengths to open the can of worms that the petitioner had parted with millions of shillings looking for the right papers. That is a good confession, but he was not obliged to engage corrupt officials. He had the right to refuse to oil them and demand that they to do the right thing and even expose them to the country’s anti-corruption watchdog, the Ethics and Anti-Corruption Commission to investigate and take appropriate action against the alleged corrupt officials. 3. Therefore, on what orders this court should make, the justice of this case is adequately served by a limited declaration affirming that all persons, including foreign nationals, are entitled to lawful and procedurally fair administrative action and that the petitioner was unprocedurally deported from Kenya, in violation of his right to fair administrative action, to the equal benefit and protection of the law and the right to be heard on alleged criminal acts of obtaining a Kenyan national identity card illegally and unprocedurally. 4. Beyond those declaration, however, the petitioner is not entitled to the other remedies sought. This is because, uultimately, constitutionalism demands fidelity not only to rights but also to legality. The Constitution cannot be invoked simultaneously as a shield against procedural impropriety and as a sword to sanitize or perpetuate unlawful conduct, a situation that this court finds itself in here. 5. I must however, in equal measure, express my disappointment with some the Immigration Department officials and officers from the Department responsible for registration of persons in this Country, owing to the revelations in this matter. The record shows that the Petitioner, a person recorded as being a citizen of Bosnia and Herzegovina, was issued with a Kenyan national identity card, instead of **residence and work permits**. The Immigration Officials have not even mentioned about these two critical documents that an alien must have to remain and work in this country, which is very telling. That should not have happened. First, is that an identity card is not just another administrative document. It is what anchors a person’s legal existence within the country. It opens doors to employment, banking, travel and other public services. Because of that, the law places a heavy duty on the public officers who issue it. It is surprising that children born to Kenyan parents are taken through a tedious vetting process before being issued with national identity cards, yet foreigners with absolutely no roots in Kenya are gifted citizenship. This is what this case has revealed. The identity card issued to the petitioner is not a forgery. It is a genuine document as per the application form exhibited by the respondents. It was issued by a Kenyan public official who will forever remain unknown because his or her foot prints are not on the said documents. 6. When a document of this nature and significance is issued without proper verification or with eyes closed by the issuer, there can be no inadvertence here. The illegality undermines the integrity of the entire registration and identification of persons system. For example, in Kenya, only Kenyans are eligible to vote. A total stranger becomes eligible to vote in elective politics and can even vie for an elective position in Kenya because, after all, they are citizens, albeit fraudulently. 7. Second, is that the responsibility to act legally does not lie with the petitioner alone. Public officers who are the gatekeepers and who are required to check, verify and refuse to act where the law is not satisfied and who are under a duty to do things in accordance with the law, are active participants. They cannot now appear shocked that the petitioner has a Kenyan national identity card and worse still, he had no work permit or resident permit. 8. When that public duty is not carried out as by law provided and absent patriotism, it is the State registration and identification system that has failed. 9. This Court remains utterly concerned that such failures may not be isolated. In my view, there lies a deeper problem that needs attention in our national registration and identification system. The relevant authorities who I hereby direct that they be served with this Judgment, should treat this case as a reminder that the integrity of the national registration and identification system depends on discipline at the point of issuance. Where weaknesses exist, there is urgent need to fix them. Where negligence is found, it should be addressed, or else, the system itself loses credibility and public trust, which is difficult to restore. 10. For those reasons, the petition only succeeds to the extent stated in this judgment. The petition substantially fails. I further direct that copies of this Judgment shall as soon as it is uploaded on the Case Tracking System, be served upon the Director General of Immigration Services as well as the Principal Registrar of Persons. The Deputy Registrar shall ensure service is effected. 11. Each party to bear their own costs of these proceedings. 12. This file is hereby closed. **Dated, Signed and Delivered at Nairobi this 26th Day of May, 2026** **R.E. ABURILI** **JUDGE**