[2000] KEHC 244 (KLR)
The court held that the Minister, in making the deportation order, was acting within his executive discretion and in the public interest. There was no legal obligation for the Minister to provide the applicant with an opportunity to be heard prior to making the order, especially where national interest was cited....
Source-derived case information.
- Citation
- [2000] KEHC 244 (KLR)
- Parties
- Applicant: Kalu Timothy Iheke; Applicant: Charles Onwucherwa Okoronkwo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 440 of ??
- Procedural Posture
- Criminal Application / Ruling on Judicial Review Application
- Outcome
- application dismissed
- Judges
- VV Patel
- Legal Topics
- Judicial Review, Ministerial Discretion, Deportation Orders, Natural Justice, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kalu Timothy Iheke
Applicant
Charles Onwucherwa Okoronkwo
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Judicial Review Application
Legal Issues
- 1 Whether the Minister's deportation order was made in breach of the rules of natural justice.
- 2 Whether the Minister was required to give the applicant an opportunity to be heard before making the deportation order.
- 3 Whether the court has jurisdiction to review the Minister's exercise of executive discretion in matters of national interest.
Ratio Decidendi
The court held that the Minister, in making the deportation order, was acting within his executive discretion and in the public interest. There was no legal obligation for the Minister to provide the applicant with an opportunity to be heard prior to making the order, especially where national interest was cited. The court found that it had no power to question the Minister's decision in such circumstances and therefore dismissed the application for judicial review. The request for bail was rendered moot by the upholding of the deportation order.
Court Disposition
application dismissed
Orders
- The application for judicial review is dismissed.
- The Ministerial order for deportation is upheld.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF NAIROBI(NAIROBILAW COURTS)
CRIMINAL APPLICATION NO.440 OF 2000
KALU TIMOTHY IHEKE....................................................APPLICANT
VERSUS
REPUBLIC.....................................................................RESPONDENT
CONSOLIDATED WITH
CRIMINAL APPLICATION NO.441 OF 2000
CHARLES ONWUCHERWA OKORONKWO..................APPLICANT
VERSUS
REPUBLIC......................................................................RESPONDENT
RULING
This is an application for Judicial Review by way of Notice of Motion filed on 26th September, 2000. By this application which is supported by an affidavit and the statement the applicant wants the decision of the Minister for the state ordering the deportation of the applicant quashed. Mr. Makolo, the learned advocate for the applicant argued that the order made by the Minister was oppressive, was in bad faith and contrary to the rules of natural justice. The learned advocate pointed out, inter alia, that the applicant was lawfully in Kenya and was operating a large business in which he had invested Sh.13. 5 million.
Refering to various authorities and the international conventions to which Kenya was the party, Mr. Makolo pointed out that the applicant was not given any chance to be heard before the Minister made the order and thus the rules of natural justice were breached. Mr. H. Okumu, the learned Senior Principal State Counsel opposed the application arguing that the Minister made the order legally and that the order was made in the National interest of Kenya. Giving his reasons, Mr. Okumu argued that the Minister did not have to call the applicant to present his reasons against the deportation due to compelling reasons of National interest. he added that after the deportation the applicant may present his case.
I believe through the Nigerian High Commission to the Minister to review the order under Section 3(3), of the Immigration Act, Cap.172. I have considered the Submissions made by the counsel on both sides with utmost care. It is clear that in making the order in question the Minister acted as an Executive Officer and as such was duty bound to act on any information he may have received without any obligation to say anything about it (the information) to the applicant. As an Executive Officer the Minister has the responsibility and has to act in the public interest when making the order as the present one. It is my considered view that the courts have no power to question the decision of the Minister in the present case. The application for the Judicial Review fails and I dimiss it. The question of releasing the applicant on bail does not arise now as I have upheld the Ministerial Order for the deportation.
V.V. PATEL
JUDGE
3/11/2000
Makolo:
‘Pray for leave to appeal.
Court: Granted.
V.V. PATEL
JUDGE
3-11-2000