[2017] KEHC 4552 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL PETITION NO. 313 OF 2016

IN THE MATTER OF ARTICLES 2 & 3 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ARTICLE 20, 21, 22, 23 AND 27, 28 THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF KENYA CITIZENSHIP AND IMMIGRATION ACT

AND

IN THE MATTER OF REGISTRATION OF PERSONS ACT CAP 107

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLE 12 (1) (B) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLE 27 (10 (2) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ENFORCEMENT OF RIGHT TO CITIZENSHIP (CHAPTER 3) UNDER ARTICLES 14 (2) OF THE CONSTITUTION OF KENYA

BETWEEN

JAMAH AHMED FARAH.......................................................................PETITIONER

VERSUS

PRINCIPAL REGISTRAR OF PERSONS......................................1ST RESPONDENT

ATTORNEY GENERAL.................................................................2ND RESPONDENT

JUDGEMENT

The petitioner states that he is a Kenyan citizen born on 10th July 1995 and holder of Kenyan Passport number [particulars withheld]. He states that his parents are Kenyan citizens. He applied for a national identity card on 10th July 2014 and was issued with a waiting card.

However, his aforesaid identity card took longer than usual prompting his father to follow it up, only to be informed that he could not be issued with an identity card because he was registered as a refugee. He was asked to obtain clearance from the department of Refugees.

He admits having registered as a refugee, but states that he did so while he was a minor sometimes in 2013 after he was advised by some friends to register to travel to the United States of America. He states that he registered without his parents' consent, but nevertheless, he was able to obtain a letter from the department of refugees asking the first Respondent de-activate his status as a refugee. Notwithstanding the said letter, the first Respondent has failed to issue him with the identity card, hence these proceedings seeking to compel the first Respondent to issue his identity card.

The first Respondent, in a Replying affidavit sworn by John Muiwa Kinyumu avers that in the course of processing the identity card, they discovered that the petitioner had registered as a refugee in 2005, indicating that he hailed from Kismayu, Somalia. He exhibited documents in support of the said averment.

He further avers that due to influx of similar cases, and in order to address the said issue, the government appointed a task force to look into the issue comprehensively and asked that the petitioner allows the said task force to comprehensively address all the issues including the petitioners, hence, it was premature for the petitioner to institute these proceedings.

I have considered the submissions filed both party's advocates. Counsel for the petitioners extensively dwelt on infringement of the petitioners rights while the Respondents' counsel submitted that the petitioner has not proved breach of Fundamental Rights.

My understanding of the facts as enumerated above is that the first Respondent has not refused to issue the identity card. He states that a task force was formed to look into matters of this nature including the petitioners issue and asks that the petitioner awaits the outcome of the task force. The petitioner admits that he had registered as a refugee, hence the reason why he should wait for a proper investigation. The court cannot declare the alleged refusal as unconstitutional when the petitioner himself admits having registered as a refugee.

The second prayer sought is mandmus, which is a judicial review relief by its nature.Judicial review is about the decision making process, not the decision itself. The role of the court in judicial review is supervisory. It is not an appeal and should not attempt to adopt the 'forbidden appellate approach' Judicial review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power or decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.

Judicial review is a means to hold those who exercise public power accountable for the manner of its exercise. The primary role of the Courts is to uphold the fundamental and enduring values that constitute the rule of law. As with any other form of governmental authority, discretionary exercise of public power is subject to the Courts supervision in order to ensure the paramountcy of the law.

Judicial review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere.Broadly, in order to succeed, the applicant will need to show either:-

a. the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or

b. a decision or action that has been taken is 'beyond the powers' (in latin, 'ultra vires') of the person or body responsible for it.

Mandamus is a judicial command requiring the performance of a specified duty which has not been performed.' Originally a common law writ, mandamus has been used by courts to review administrative action.[1] Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It is also employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way, nor to direct the retraction or reversal of action already taken in the exercise of either.[2]

In the present case, the first Respondent states clearly it has not refused to act. He has given credible reasons. In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality.[3]

Mandamus is a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist. The court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The discretion of the court being a judicial one must be exercised on the basis of evidence and sound legal principles. In the present case, it is prudent for the petitioner to pursue the outcome of the task force or seek orders compelling it to release its report on his case. This remedy could have been more efficacious but was not sought.

In Nasieku Tarayia vs Board of Directors, AFC & another[4] it was held that judicial review is an alternative remedy of last resort and where alternative remedy exists, the court has to be satisfied that judicial review is the more convenient, beneficial, efficacious alternative remedy available for the court to grant.

I have carefully evaluated the material before the court and I am not persuaded that the applicant has demonstrated sound grounds for the court to exercise its discretion in his favour and grant the reliefs sought. The applicant admits having registered as a refugee. It's only fair that the first Respondent does due diligence prior to issuing the clearance.

The reason offered by the first Respondent has not been shown to be unlawful or malicious. The court cannot stop a lawful process. It can only intervene if is shown to be an abuse of the process, illegal or baseless or if it is prompted by ulterior motives or any such other motives other than furtherance of the mandate of the first Respondent and public interest. The applicant has not alleged or proved any of the ingredients of a malicious or illegal process as stated herein. The alleged breach of Rights has not been proved at all since the circumstances speak for themselves.

Also, it has not been shown that the first Respondent acted illegally. The Respondent is vested with powers to make the decision in question. No abuse of such powers has been alleged or proved. It has not been shown that this power was not exercised as provided for under the law or regulations. It has not been proved or even alleged that the first Respondent acted outside its powers or the decision was arrived at after taking into account irrelevant or extraneous matters.

An administrative decision can only be challenged for illegality, irrationalityand procedural impropriety.A close look at the material presented before me does not demonstrate any of the above. The decision has not been shown to be illegal or ultra vires or outside the functions of the first Respondent.

As stated above, the grant of the orders or certiorari, mandamus and prohibition is discretionary. The court is entitled to take into account the nature of the process against which judicial review is sought and satisfy itself that there is reasonable basis to justify the orders sought.Upon analysing all the material before me and upon considering the arguments advanced by both sides, I find that the applicant has not satisfied the threshold for this court to grant orders sought. The effect is that the orders sought are hereby dismissed with costs to the Respondents.

Orders accordingly

Signed, Dated at Nairobi this12thday ofJuly2017

John M. Mativo

Judge

[1]W. GELLo1RN & C. BYSE, Administrative & Review Law, Cases and comments 119-20 (5th ed. 1970). Originally, mandamus was a writ issued by judges of the King's Bench in England. American courts, as inheritors of the judicial power of the King's Bench, adopted the use of the writ.

[2] Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218 (1930). See also Jacoby, The Effect of Recent Changes in the Law of "Nonstatutory" Judicial Review, 53 GEO. IJ. 19, 25-26 (1964).

[3] Pastoli vs Kabale District Local Government Council and Others {2008} 2EA 300

[4] {2012}Eklr