[2016] KEHC 7951 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.534 OF 2015

BETWEEN

KAMAL JADVA VEKARIA….…PETITIONER

VERSUS

THE DIRECTOR GENERAL, KENYA CITIZENS AND FOREIGN NATIONALS MANAGEMENT SERVICE...RESPONDENT

JUDGMENT

Introduction

1. In the Petition dated 2nd December 2015, the Petitioner, Kamal Jadva Vekaria claims that he was born on 5th August, 1984 and has resided in Kenya since birth and is also married to a Kenyan citizen. That his parents were British Overseas Citizens residing in Kenya at the time of his birth and he could therefore not be conferred British citizenship by way of descent.

2. The Petitioner also claims that he applied for a British Passport but was informed on 11th August, 2005 by the British High Commission in Nairobi that he had no claim to British Nationality by virtue of the provisions of the British Nationality Act and because of the fact that under Article 14 of the Constitution, 2010 he is not a Kenyan citizen, the Petitioner claims that he had to apply for registration as a Citizen of Kenya as a stateless person invoking of Section 17 of the Kenyan Citizenship and Immigration Act, 2011, on 15th August, 2012.

3. He further claims that since then, the office of Respondent has neither formally approved, declined nor responded to the said application but that he was verbally informed by an Immigration Officer that his application for Kenyan Citizenship was rejected.

4. Aggrieved by the Respondent’s refusal and/or inability to act on his application aforesaid, he filed the present Petition seeking the following reliefs;

“1) A DECLARATION that the Respondent has violated the rights of the Petitioner under Article 47(1) to administrative action that is efficient, lawful, reasonable and procedurally fair.

2) A DECLARATION that the Respondent has violated the rights of the Petitioner under Article 47(2) to be notified in writing of any adverse actions against him.

3) A DECLARATION that the Respondent has violated the rights of the Petitioner under Article 27 in respect of equality and freedom from discrimination in failing to process his application for Kenyan Citizenship.

4) A DECLARATION that the Respondent has violated the Petitioner’s right to human dignity under Article 28 of the Constitution.

5) A DECLARATION that the Respondent has violated the rights of the Petitioner under Article 39 of the Constitution in respect of freedom of movement and residence.

6) A DECLARATION that the Petitioner is a Kenyan Citizen and be registered as such forthwith.

7) AN ORDER OF MANDAMUS directing the Respondent to process the Petitioner’s application for Kenyan Citizenship and a Kenyan Passport;

8) Costs of the Petition; and

9) Such other orders as the Honorable Judge deems fit.”

Petitioner’s case

5. The Petitioner’s case is contained in the Petition aforesaid, a Supporting Affidavit sworn on 1st December, 2015 together with its annexures as well as Submissions by Mr. Osiemo, learned Counsel for the Petitioner, filed on 12th April 2015.

6. His case is that his parents were British Overseas Citizens residing in Kenya at the time of his birth on 5th August 1984 and that his mother and father had in fact become British Citizens on 4th July, 2006 and 1st August, 2006 respectively as per the provisions of the British Nationality Act 1971. The Petitioner has also been married to a Kenyan woman since 25th February 2012.

7. That upon his application for a British Passport, the British High Commission informed him that he had no claim to British Nationality by virtue of the Provisions of the said British Nationality Act and despite the fact that he was born in Kenya, under Article 14 of the Constitution, 2010, he cannot be said to be a Kenyan citizen as none of his parents were Kenyan Citizens at the time of his birth and he could therefore not be issued with Kenyan Citizenship.

8. The Petitioner therefore decided to apply to be registered as a Kenyan Citizen being a stateless person by virtue of Section 17 of the Kenyan Citizenship and Immigration Act, 2011, on 15th August, 2012.

9. The Petitioner in support of his case cites Article 13(2) of the Constitution of Kenya, 2010 which states;

“Citizenship may be acquired by birth or registration”

He further cites to Article 15(2) of the Constitutionwhich declares that;

“A person who has been lawfully resident in Kenya for a continuous period of at least seven years, and who satisfies the conditions prescribed by an Act of Parliament, may apply to be registered as a citizen.”

10. The Petitioner, in addition to the above, alludes to Section 15 of the Kenyan Citizenship and Immigration Act, 2011, as the legislation that was contemplated by Article 15(2) of the Constitution of Kenya, 2010. That Section provides;

A person who does not have an enforceable claim to the citizenship of any recognized state and has been living in Kenya for a continuous period since 12th December, 1963, shall be deemed to have been lawfully resident and may, on application, in the prescribed manner be eligible to be registered as a citizen of Kenya if that person:-

a. has adequate knowledge of Kiswahili or a local dialect;

b. has not been convicted of an offence and sentenced to imprisonment for a term of three years or longer;

c. intends upon registration as a citizen to continue to permanently reside in Kenya or to maintain a close and continuing association with Kenya; and

d. the person understands the rights and duties of a citizen.

2. Applications under this section shall be made within a period of five years from the date of commencement of this Act and may by notice in the gazette be extended by the Cabinet Secretary for an additional period of three years.(Emphasis added)

In line with the above provisions therefore, the Petitioner asserts that he is eligible for Kenyan Citizenship upon application as a stateless person.

11. Further, the Petitioner claims that he has neither been convicted of any offence nor sentenced to a term in prison and has always been issued with a Certificate of Good Conduct when the same was required and that the inability by the Respondent to act on his application for Citizenship has resulted in the Petitioner’s rights, as enshrined in the Bill of Rights, being violated.

12. The Petitioner also urges the point that the rights which have been violated are his right to dignity contrary to Article 28 of the Constitution, right to freedom and security contrary to Article 29 of the Constitution as the Petitioner has no national identification card or passport capable of being recognized, right to make political choices contrary to Article 38 of the Constitution as the Petitioner has no right to vote as he lacks a National Identity Card, right to movement and residence contrary to Article 39 of the Constitution as the Petitioner has no right to leave Kenya without a valid passport and right to labour relations as provided by Article 41 of the Constitution as he cannot be employed due to lack of necessary identification. The Petitioner asserts further that he has never been informed of the reasons for the delay in the processing of his application for citizenship and his right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action as required under Article 47(1) of the Constitution has therefore been violated. In addition, that the Respondents action and/or omissions infringe on the right to freedom from discrimination as enshrined in Article 27 of the Constitution.

13. In submissions, his advocate, Mr. Osiemo submitted firstly, that the Petitioner’s human dignity has been violated as he is unable to do virtually anything without being asked for his National Identification card or passport. Secondly, for the same reason, the Petitioner is unable to access buildings in Nairobi or obtain services from institutions resulting in him having to send people on his behalf and therefore incurring unnecessary costs. Thirdly, that the Petitioner has been unable to leave the Country and further his studies as his application to study in Australia was rejected due to his lack of a recognized passport.

14. On the delay in processing the Petitioner’s application for registration as a citizen since August 2012, Learned Counsel cited the case of Kulraj Singh Bhangra v Director General, Kenya Citizens and Foreign Nationals Management Service [2014] eKLRin support of his case where this Court states as follows;

“I am of the same mind as the learned Judges’ in both decisions above. I say so because a delay of one year and a half and still counting in determining the Petitioner’s Application is inordinate.”

15. Mr. Osiemo also relied on the case of Republic v Cabinet Secretary for Ministry of Interior & Coordination of National Government & 2 others Ex parte Patricia Olga Howson [2013] eKLRin support of his case and added that in that case, the Court gave the Respondent 30 days to process the Applicant’s application to be registered as a Kenyan citizen whereas in the case of Hersi Hassan Gutale & Another v Attorney General & Another [2013] eKLR,the Court directed the Respondent to consider the Petitioner application for a new generation identity card within 45 days of the judgment date having found that the delay in doing so was inordinate. That in the present case, the four years’ delay is far more inordinate and for the above reasons, the Petitioner prays for the orders set out above.

Respondent’s Case

16. The Respondent opposed the Petition and filed written submissions on 4th May 2016 by Ms. Chibole, Learned State Counsel. His case can be summarized as follows;

i. That despite being born and having lived in Kenya all his life, the Petitioner is not a Kenyan under Article 14 of the Constitution as none of his parents were Kenyan citizens at the time of his birth.

ii. That the Petitioner did not qualify to apply as a Kenyan Citizen through registration as a stateless person under Section 17 of the Kenyan Citizenship and Immigration Act, 2011 as his parents were not stateless at the time of his birth. Further, that the conditions of registration as a stateless person that the Petitioner claims to satisfy are not exhaustive.

iii. That the application for citizenship made by the Petitioner has neither been approved, declined nor responded to since the process of grant of citizenship is not only elaborate but includes background checks by the National Intelligence Service among other State organs and institutions as is the law in Section 5(1)(g) of theNational Intelligence Service Act, 2012. Additionally, that the law does not stipulate a specific time frame within which an applicant should be granted citizenship and so the Petition is misguided in that context.

iv. That numerous applications for registration of citizens have been submitted to the Respondent’s office which applications are dealt with on a first come first serve basis and the Petitioner’s application for citizenship cannot therefore jump the queue.

17. In addition, Ms. Chibole submitted that the Petitioner was born after 12th December 1963 and is therefore not entitled to be registered as a stateless person as Section 15 of the Kenyan Citizenship and Immigration Act provides;

A person who does not have an enforceable claim to the citizenship of any recognized state and has been living in Kenya for a continuous period since 12th December, 1963, shall be deemed to have been lawfully resident and may, on application, in the prescribed manner be eligible to be registered as a citizen of Kenya…

18. In the above context, the Petitioner, it is urged had the opportunity to be registered as a citizen of his parents’ state but he did not do so.

19. Moreover, that the Petitioner should have made an application under Section 13(4) of the Act for a fair determination of his alleged right to a nationality but which application he has failed to make. The section provides that;

A person who is a dependent of any biological parent or who is under the legal guardianship of a person who is a citizen of Kenya by registration shall, upon application made in the prescribed manner be registered as a citizen upon:-

a. Production of documents conferring Kenyan citizenship to any of the parents or the legal guardian:

b. Production of the child’s or the person with disability’s birth certificate; and

c. Proof of lawful residence of the child or person with disability in Kenya.

20. Lastly, he submitted that citizenship is not a matter of right and this Court cannot be the forum for granting it.

Determination.

21. There are three substantive issues to address so far as I can see. These are;

i. Whether the Petitioner is entitled to Kenyan Citizenship.

ii. Whether the Respondent violated the Petitioner’s rights under Articles 27, 28, 29, 38, 39, 41 and 47of the Constitution, 2010.

iii. Whether the Petitioner is entitled to the Prayers in the Petition.

Whether the Petitioner is entitled to Kenyan Citizenship.

22. It is not disputed that the Petitioner is not a Kenyan Citizen by birth. His chief complaint in fact is that he has not received any formal communication from the Respondents with regard to his application for citizenship as a stateless person.

23. As to whether the Petitioner is entitled to Kenyan citizenship, I decline the invitation to address the matter as the Kenyan Citizenship and Immigration Act elucidates mechanisms on how such a matter ought to be addressed. This Court cannot therefore entertain that issue until a formal decision is made by the Respondent in that regard. I take that position because Sections 13 and 15 of the Act provideas follows;

[13] Lawful Residence

(1) A person who has attained the age of majority and capacity who has been lawfully resident in Kenya for a continuous period of at least seven years may on application be registered as a citizen if that person—

a. has been ordinarily resident in Kenya for a period of seven years, immediately preceding the date of application;

b. has been a resident under the authority of a valid permit or has been exempted by the Cabinet Secretary, in accordance with section 34(3)(h) and who is not enjoying the privileges and immunities under the Privileges and Immunities Act (Cap. 179);

c. has resided in Kenya throughout the period of twelve months immediately preceding the date of the application;

d. has an adequate knowledge of Kenya and of the duties and rights of citizens as contained in this act;

e. is able to understand and speak Kiswahili or a local dialect;

f. understands the nature of the application under subsection (1);

g. has not been convicted of an offence and sentence to imprisonment for a term of three years or longer;

h. satisfies the Cabinet Secretary that he or she intends to reside in Kenya after registration;

i. has been determined, through an objective criteria, and the justification made, in writing, that he or she has made or is capable of making a substantive contribution to the progress or advancement in any area of national development within Kenya; and

j. is not an adjudged bankrupt.

(2) The Cabinet Secretary shall not register an applicant as a citizen of Kenya under this section if at the date of making the application applicant’s country of citizenship is at war with Kenya.

(3) A child of a citizen by registration who was born before the parent acquired citizenship may on application by the parent or legal guardian be registered as a Kenya citizen upon—

(a) production of documents conferring Kenyan citizenship to any of the parents;

(b) production of the child’s birth certificate; and

(c) proof of lawful residence of the child in Kenya.

(4) A child or person with disability who is a dependant of any biological parent or legal guardian who is a citizen of Kenya by registration shall upon an application made on their behalf in a prescribed manner be registered as a citizen, upon—

(a) production of documents conferring Kenyan citizenship to any of the parents or the legal guardian;

(b ) production of the child’s or the person with disability’s birth certificate; and

(c) proof of lawful residence of the child or person with disability in Kenya.

[15] Stateless persons.

(1) A person who does not have an enforceable claim to the citizenship of any recognized state and has been living in Kenya for a continuous period since 12th December, 1963, shall be deemed to have been lawfully resident and may, on application, in the prescribed manner be eligible to be registered as a citizen of Kenya if that person—

(a) has adequate knowledge of Kiswahili or a local dialect;

(b) has not been convicted of an offence and sentenced to imprisonment for a term of three years or longer;

(c) intends upon registration as a citizen to continue to permanently reside in Kenya or to maintain a close and continuing association with Kenya; and

(d) the person understands the rights and duties of a citizen.

(2) Applications under this section shall be made within a period of five years from the date of commencement of this Act and may by notice in the gazette be extended by the Cabinet Secretary for an additional period of three years.(Emphasis added)

24. The import of the above provisions is that determination of citizenship either under Section 13orSection 15 can only be done after an applicant has followed the above processes to the end and a determination made by the Respondent one way or the other. This Court cannot circumvent those processes and purport to take over the role of the Respondent thereby. In saying so, I am aware of the dictum in the case of Speaker of National Assembly v Njenga Karume (2008) 1KLR EP 425where the Court held;

“In our view there is considerable merit that where there is clear procedure for the redress of any particulars grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed”

A similar position was taken by the Court in Philemon Donny Opar v Orange Democratic Movement & 2 others (2013) eKLR[4]and also inNarok County Council vs Transmara County Council (2000) 1 AA 161, where the Court stated as follows;

“It seems to me to be plain beyond argument that the jurisdiction of the High Court can only be invoked if the Minister refuses to give a direction or in purporting to do so arrives at a decision which is grossly unfair or perverse. In the latter case his decision can be challenged by an application to the High Court for a writ of certiorari because under the relevant Section, the division is to be made on a fair and equitable basis”.

I am in agreement with the above expositions of the law and until the Respondent makes a decision with respect to the Petitioner’s application for registration as a citizen, the Court ought not to interfere with a mandate ascribed to it as the lawful entity to do so.

Whether the Respondent violated the Petitioner’s rights

25. As to whether the Respondent violated the Petitioner’s rights under Articles 27, 28, 29, 38, 39, 41 and 47of the Constitution, 2010,the above Articles of the Constitution provides as follows;

[27] (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.

(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”

[28] Every person has inherent dignity and the right to have that dignity respected and protected.”

[29]Every person has the right to freedom and security of the person, which includes the right not to be—

(a) deprived of freedom arbitrarily or without just cause;

(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;

(c) subjected to any form of violence from either public or private sources;

(d) subjected to torture in any manner, whether physical or psychological;

(e) subjected to corporal punishment; or

(f) treated or punished in a cruel, inhuman or degrading manner

AND

[38] (1) Every citizen is free to make political choices, whichincludes the right—

(a) to form, or participate in forming, a political party;

(b) to participate in the activities of, or recruit members for, a political party; or

(c) to campaign for a political party or cause.

[39] (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”.

AND

[41] (1)Every person has the right to fair labour practices.

(2) Every worker has the right— (a) to fair remuneration; (b) to reasonable working conditions; (c) to form, join or participate in the activities and programmes of a trade union; and (d) to go on strike.

(3) Every employer has the right— (e) to form and join an employers organisation; and (f) to participate in the activities and programmes of an employers organisation.

(4) Every trade union and every employers’ organisation has the right— (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation.

(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

AND

[47] (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.

(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—

(a) Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) Promote efficient administration.”

26. Beyond stating the Articles, has the Petitioner made out a case of their violation? In the case of David Ngige Tharau & 128 others v Principal Secretary Ministry of Lands, Housing and Urban Development & 2 others [2016] eKLR Odunga J opined thus;

“It is not enough to just state violations, there should be precision on the violations and proof of the said violations.”

The Learned Judge made the above finding following the principle established in Annarita Karimi Njeru v Attorney General [1979] KLR 154that;

“If a person is seeking redress from the High Court in a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they have been infringed.”

27. I am in agreement with the above expressions of the law and I note in that regard that the Petitioner alleges that the Respondent’s actions and/or omissions violated his rights articulated in Articles 27, 28, 29, 38, 39, 41 and 47. With regard to Article 27 on the right to equality and freedom from discrimination, Article 28 on the right to Human Dignity , Article 29 on the right to Freedom and Security, Article 38 on political rights , and Article 41 on labour relations, no particulars have been given in support of those depositions. Further, the Supporting Affidavit sworn by the Petitioner is silent on these alleged violations and it is impossible to specifically tell how these rights are applicable to his Petition. Without more than merely stating those rights, I have no material to delve into them.

28. This leaves the alleged violation of Article 39 and Article 47. The Petitioner in that regard claims that since 15th August 2012 he has received no formal response regarding his application for registration as a citizen. The Respondent on his part submitted that the delay was caused by the need to undertake background checks on the Petitioner as well as the long queue of people awaiting responses on their applications for registration as a citizen.

29. In that context, in Olga Hanson(supra),The learned judged stated thus;

“Prima facie a delay of 6 months in processing an application for Citizenship, in my view amounts to inordinate delay. It must always be remembered that the delay in processing such an application deprives the applicant from the enjoyment of certain rights conferred upon Citizens hence there ought not to be an undue delay in processing such applications. To state that since there is no time frame for considering the application no amount of delay can be termed as inordinate in my view is irrational”.

30. With regard to National Intelligence Service Reports, the learned judge in the same case stated the following;

“Under Section 5(1) it is true the security intelligence is empowered to provide a confidential security report for persons seeking to be registered as citizens of Kenya. It is however a power coupled with a duty; a duty which must be performed when valid grounds justifying the exercise of the power are put forward. The question is whether the Respondents can bypass the requirement for the confidential security report in issuing a certificate of citizenship to a person….

He then added thus;

“The provisions of Sub-section (1) shall not be construed as-

Depriving any person or authority any power, duty or function conferred upon that person or authority under the Constitution or any other written law; or

Limiting the performance of an intelligence related function by a State organ, department or agency.

It is therefore clear that the mere fact that the Intelligence Service is in the process of undertaking to provide a confidential security report for an Applicant for Kenyan citizenship, does not bar the Respondents from carrying out their statutory or Constitutional obligations especially where the said report is not forthcoming.

For security intelligence to sit on such a report for an unnecessarily and unjustified long period of time would fall foul of Article 47 of the Constitution and would in my view amount to an abuse of power.”

31. I agree with the above findings and without belaboring the point, a delay of nearly four years is unwarranted. Article 47 indicates that administrative action ought to be expeditious, efficient, lawful, reasonable and procedurally fair. These words seem not to have resonated with the Respondent in the present case and it is obvious that there was a clear violation of Article 47.

32. Regarding alleged violation of Article 39of theConstitution, whereas the Petitioner’s right to freedom of movement within and outside Kenya may have been limited, until his application for registration as a citizen is determined in his favour, it cannot be said that his right to enter, remain in and reside anywhere in Kenya has been violated since that right is reserved for citizens of Kenya only hence the provision of Article 39(3) that;

“(1) …

(2) ….

(3) Every citizen has the right to enter, remain in and resideanywhere in Kenya.”

33. On his right to leave Kenya under Article 39(2), such a right is also tied to his pending application as he presently has no nationality at all. Without resolving the larger question of his nationality and citizenship therefore, the Petitioner’s rights under Article 39 cannot be addressed contextually. In any event, I have seen no violation of the said Article in the specific circumstances of the present Petition.

Conclusion

34. Having held as above, the final orders to be issued are as follows;

i. A declaration is hereby issued that Article 47 of the Constitution on the right to administrative action that is efficient, lawful, reasonable and procedurally fair was violated when the Respondent refused and/or neglected to process the Petitioner’s application for registration as a citizen of Kenya for close to four years.

ii. An order of Mandamus is hereby issued directing the Respondent within 45 days of today’s date to consider the Petitioner’s Application as a citizen of Kenya and thereafter comply with Article 47(2) of the Constitution.

iii. The Petitioner, upon the Respondent’s compliance with Order (ii) above is at liberty to take such further legal or other lawful action as he deems fit.

iv. Let each Party bear its own costs.

35. Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF AUGUST, 2016

ISAAC LENAOLA

JUDGE

In the presence of:

Muriuki – Court clerk

Miss Chibole for Respondent

Mr. Osiemo for Petitioner

Order

Judgment duly read.

ISAAC LENAOLA

JUDGE