[2023] KEHC 27518 (KLR)
The court found that the applicant had neither been charged nor convicted for any criminal offence related to the passport in question. The respondents failed to produce any evidence demonstrating the applicant's culpability for the alleged irregularities or that the passport was illegally obtained. In the absence...
Source-derived case information.
- Citation
- [2023] KEHC 27518 (KLR)
- Parties
- Applicant: Issack Edin Matker; Respondent: Director General Immigration Services; Respondent: Director of Criminal Investigations; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E218 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling
- Outcome
- application allowed
- Judges
- DR Kavedza
- Legal Topics
- Passport Confiscation, Unlawful Detention, Release of Property, Immigration Investigations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Issack Edin Matker
Applicant
Director General Immigration Services
Respondent
Director of Criminal Investigations
Respondent
Director of Public Prosecutions
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling
Legal Issues
- 1 Whether the applicant's passport was lawfully confiscated by the respondents.
- 2 Whether the applicant was unlawfully detained or threatened with deportation without being charged.
- 3 Whether the respondents provided sufficient evidence to justify withholding the applicant's passport.
Ratio Decidendi
The court found that the applicant had neither been charged nor convicted for any criminal offence related to the passport in question. The respondents failed to produce any evidence demonstrating the applicant's culpability for the alleged irregularities or that the passport was illegally obtained. In the absence of such evidence, the continued confiscation of the applicant's passport was unjustified and unlawful. The court therefore ordered the immediate release of the applicant's passport.
Court Disposition
application allowed
Orders
- The respondents are directed to release passport number CK5xxxx to the applicant Issack Edin Matker with immediate effect.
Full Case Text
Judgment text and source record
25 paragraphs
Matker v Director General Immigration Services & 2 others (Miscellaneous Criminal Application E218 of 2022) [2023] KEHC 27518 (KLR) (Crim) (16 June 2023) (Ruling)
Neutral citation: [2023] KEHC 27518 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Miscellaneous Criminal Application E218 of 2022
DR Kavedza, J
June 16, 2023
Between
Issack Edin Matker
Applicant
and
Director General Immigration Services
1st Respondent
Durector of Criminal Investigations
2nd Respondent
Director of Public Prosecutions
3rd Respondent
Ruling
1. The applicant filed the amended notice of motion pursuant Articles 19, 20, 21, 22, 25, 29 47, 49, 50 and 165 of the Constitution of Kenya, 2010 and section 123 of the Criminal Procedure Code, Cap 75 Laws of Kenya. The applicant prayed a number of prayers ex-parte which are already spent. In addition, he also sought that his passport which was confiscated by the respondents be released forthwith.
2. The averments made are that he applicant is a Kenyan citizen and holder of passport number CK5xxxx. He was arrested on 26th July 2021 by officers from the 1st respondent. He has never been charged with any offence. He was detained at Kilimani Police Station and the 1st respondent threatened to deport him.
3. In response, the Fiona Awour an officer at the Immigration department swore a replying affidavit dated 15th February 2023. The averments made were that the applicant was not illegally detained by the 1st respondent. That he was arrested and released on bond. It was alleged that he failed to honour the bond terms and the passport which was fraudulently obtained cancelled. That investigations revealed that he had been issued with the said passport after giving false information with regard to his identity. In the premises, it was prayed that the application be dismissed.
4. I have considered the application, the response and the applicable law. From the averments on record, the applicant has neither been charged nor convicted for any criminal offence related to the passport in issue. In addition, the 1st respondent has not produced any record to show that indeed that the applicant is culpable for the alleged irregularities they are alleging in their affidavit in response. As such, there is no evidence on record, to show that indeed the passport in issue was illegally obtained.
5. In the circumstances, I direct the respondents to release passport number CK5xxxx to the applicant Issack Edit Matker with immediate effect.
Orders accordingly.conclusionsRULING DATED AND DELIVERED VIRTUALLY THIS 16THDAY OF JUNE 2023______________D. KAVEDZAJUDGE