[2022] KEHC 15108 (KLR)

Kun & 4 others v Director of Immigration & 3 others (Miscellaneous Criminal Application E132 of 2022) [2022] KEHC 15108 (KLR) (Crim) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15108 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E132 of 2022

LN Mutende, J

November 10, 2022

Between

Qian Kun

1st Applicant

Sun Qiang

2nd Applicant

Ye Yajian

3rd Applicant

Shao Guixiang

4th Applicant

Lyu Yinhua

5th Applicant

and

Director of Immigration

1st Respondent

Department of Immigration Services

2nd Respondent

Attorney General

3rd Respondent

Director of Public Prosecutions

4th Respondent

Ruling

1. The applicants herein approached this court through a Notice of Motion dated April 21, 2022 seeking orders that: The Director of Immigration (1st Respondent) and the Department of Immigration services (2nd respondent) be barred from summoning, charging, harassing, investigating, questioning or repatriating the applicants pending determination of the instant application; The inhibition on the applicants’ passports barring them from travelling in and out of the country be removed; and, that they should not repatriate them from Kenya.

2. The application is premised on grounds that the applicants were convicted on their own plea of guilty, sentenced and repatriated to their country of origin. Subsequently they were granted special passes and they returned to Kenya. The 1st and 2nd respondents however continue to trample on their rights by threatening, summoning, and, intimidating them with an intention to repatriate them, an act that makes them live in fear.

3. In response thereto, the 2nd respondent averred that the applicants admitted charges of having been unlawfully present in Kenya and engaging in business without being authorized by a work permit and after repatriation they returned to Kenya and were issued with Tourist visas, and as a result they continued to engage in business and employment. That having been repatriated on February 24, 2022, and returned on March 8, 2022, the court order of repatriation had not been vacated.

4. The 4th respondent filed grounds of opposition where it was stated that the conviction and sentence had not been challenged, and, the application was not founded on any criminal case or criminal appeal hence an abuse of due process.

5. The 3rd respondent, the Hon. Attorney General of the Republic of Kenya filed a Preliminary Objection on a point of law. It is founded on grounds that the application offends section 33 (5) of the Kenya Citizenship and Immigration Act, No. 12 of 2011(Act) as the applicants are prohibited immigrants under section 33 (1) (a) of the Act, having been convicted in Kenya for offences under the Act, therefore, their entry was unlawful.

6. The Preliminary Objection (P.O) was canvassed through written submissions. It was urged by the 1st, 2nd and 3rd respondents that the applicants herein are prohibited immigrants under the Act, within the meaning of section 33(1) (a) (i) which refers to a prohibited immigrant as interalia a person who has been convicted and repatriated or removed from Kenya under a lawful order. That the applicants having been repatriated from Kenya following a court order dated February 18, 2022, in Milimani Criminal Case No. E133 of 2022, which was not appealed or reviewed, they were prohibited persons under the Act who were barred from taking up residence in the country and no document would allow them entry. That special passes and work permits do not give them an exemption.

7. The 4th respondent urged that there was no basis to invoke the court’s criminal jurisdiction. That based on article 165 (3) of the Constitution, the court is seized of original criminal and appellate jurisdiction; interpretative jurisdiction and supervisory jurisdiction conferred upon it by the legislation. He called upon the court to find that it lacks jurisdiction to entertain the matter.

8. That the Applicant’s application is speculative in nature as it seeks to prevent future events from happening. In this regard recourse was made to the case of Wanjiru Gikonyo and 2others vNational Assembly of Kenya and 4 others(2016) eKLR where the court held that:“Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension, hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix, for determination..”

9. The applicants urged that the Preliminary Objection was not merited as the Respondents are bound by the Rule of law, human rights and dignity, therefore, should not discriminate foreign nationals. That a declaration of prohibited immigrant without a hearing and fair trial is a violation of article 45 of the Constitution. That they were issued with work permits but the Respondents have inhibited their freedom and security and further threatened them with deportation.

10. That Section 33 (6) of the Act allows issuance of special pass to a prohibited immigrant to remain for such period subject to conditions specified in the pass. Therefore, section 33 of the Act is not applicable until the person accepts status of an inadmissible person; as article 47 of the Constitution refers to fair administrative action and also affords affected persons fair administrative action after they have been condemned unlawfully.

11. This court has duly considered pleadings filed, supporting affidavits and annexures thereto, and, rival arguments in support of the Preliminary Objection and in opposition. A preliminary Objection is defined by the Black law Dictionary as:“…An objection that, if upheld, would render further proceedings before the tribunal impossible or unnecessary.”

12. The question of Preliminary Objection was addressed in the acknowledged case of Mukisa Biscuit CompanyvWest End Distributors Limited (1969) EA 696, where Sir Charles Newbold P. observed that:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.”

13. The instant Preliminary Objection has been raised on a point of law. I am called upon not to entertain the application before me as it offends the law. To determine the issue I must look at the pleadings, but, of utmost importance consider if the objection raises pure points of law.

14. What can be gleaned from the pleadings is that the applicants, Chinese Citizen were found to be unlawfully present in Kenya, charged, sentenced and repatriated to their country of origin. Subsequently, they obtained special passes hence returned to Kenya. Despite their valid immigration status, the 1st and 2nd respondents continue to threaten and intimidate them.

15. Therefore, the fact of having gained entry into the country after repatriation is not in dispute. Further, special passes having been issued to them is also not in dispute as it is admitted. The question of subsequent entry into the country and their presence being illegal is a point that may determine the application in its entirety.

16. A prohibited immigrant is defined bysection 33(1) (a) of the Act thus:(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 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;

17. The argument by therespondents that as a result, the entry and presence in the country was illegal is a matter that would call for determination of the applicants’ legal status and more so before a court of law.

18. Section 33 (6) of the Act enacts that: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.

19. An Immigration Officer is seized of discretionary power to issue a prohibited immigrant with a pass to remain temporarily in Kenya. In the instant case I do note that the applicants were granted special passes that were valid from March 17, 2022 up to June 16, 2022 (three months)

20. Considering the status of having been convicts and ultimately repatriated to their country of origin such special passes though valid may not be of any assistance as they remain prohibited immigrants.

21. In their submissions theapplicants raised issues that are substantive which call for determination upon the court determining evidence put forward. It is argued that the respondents are enjoined to perform their duties in accordance with values and principles prescribed in the Constitution; including the rule of law, human rights and human dignity. That the “watch listing” by the respondents offends the provisions of article 25 of the Constitution that prescribes principles of torture and cruel, inhuman or degrading treatment or punishment and any limitation on the right to fair trial.

22. It is urged that the applicants’ fundamental rights to a fair hearing pursuant to article 27 of the Constitution cannot be limited, and, that the respondents failed to give reason for the decision made contrary to article 47 of the Constitution, and, there was no notice given by the respondents of the intention to make an adverse decision hence granting the applicants an opportunity to make representation contrary to article 50 of the Constitution. In this regard, they were guided by the case of RepublicvDirector of Immigration Services Ex-parte Planet Motors Company Limited& another(2016) eKLR; judicial review proceedings where the court made a declaration that the action of the respondents placing ex-parte applicant under the immigration watch list was unlawful, unfair and breach of the exparte applicant’s rights to fair hearing; fair administrative action, freedom and security.

23. At the outset, the 4th respondent filed grounds of opposition arguing that the application was bad in law as it was not founded either on any criminal case or appeal; as the prayers sought could only be entertained through a Constitutional Petition.

24. In the case ofSamuel Kamau Macharia &another v. Kenya Commercial Bank Limited andothers(2012) eKLR the Supreme Court of Kenya stated that:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law”

25. As correctly pointed out by the 4th respondent, this being a criminal court, its jurisdiction is limited to hearing and determining disputes primarily of criminal nature. This is where the State prosecutes individuals or organizations who commit acts/offences against the state; Appeals or Revision arising therefrom.

26. The question as to whether applicants have not been procedurally declared prohibited immigrant without due process being followed, would be addressed by a constitutional court. In the same vein, the Applicants’ rights to fair hearing being limited; whether articles 25,27,47 and 50 of the Constitution having or not contravened, are constitutional issues that could have been addressed through Judicial Review proceedings or a Constitutional Court.

27. In the premises, this being a wrong forum, the Preliminary Objection is merited, therefore, the application is struck out.

28. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI,THIS 10TH DAY OF NOVEMBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Kimani for ApplicantsMs. Mumbi for 1st – 3rd RespondentsMs. Adhiambo for the 4th RespondentCourt Assistant – Mutai