[2017] KEHC 9553 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CR. APP. 303 OF 2017

MOHAMED ISSE MUHAMED........................................APPLICANT

VERSUS

DIRECTOR GENERAL OF IMMIGRATION........1ST RESPONDENT

INSPECTOR GENERAL OF POLICE...............2ND RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.....3RD RESPONDENT

RULING

The application was brought by way of Chamber Summons dated 4th October, 2017. It is urged that this court issues a writ of habeas corpus for the production of one Mohamed Isse Muhamed.

Basically a writ of habeas corpus is intended for the production of a person, dead or alive by the person suspected to be holding him. Once the person is produced the writ is spent. In the present application the subject, Mohamed Isse Muhamed, was produced before the court on 11th October, 2017 by the Department of Immigration which had been holding him since 30th August, 2017. Therefore, per se, the application is spent. However, in an application of this nature, the Applicant can also request for the release from custody of the subject if no plausible ground is advanced for the subject’s continued incarceration.

The subject came to court under the escort of learned counsel, Mr. Nikuli for the Director of Immigration. He gave the background of events leading to the detention of the Applicant at Jomo Kenyatta International Airport’s (JKIA) Immigration Detention Office as follows. That the Applicant was turned away at Frankfurt Airport in Germany while en route to Denmark because he was a prohibited immigrant to the European Shengen countries. The German authorities ordered that he be returned to the first country of embarkment, Kenya. It was discovered that his visa to Kenya for 90 days had expired, the same having been issued on 28th March, 2017. Being a United States of America citizen he was advised to buy an air ticket to his home country which did not happen until 30th September, 2017. He bought an air ticket with Qatar Airlines to travel to Washington’s Dulles Airport via Doha. That on the day of departure he feigned illness and refused to travel insisting instead to be charged before a court in Kenya. That is when the Immigration Department contacted the US Embassy in Nairobi. The Embassy was reluctant to have him charged as he had committed no offence. He was consequently interviewed by one Catherine Truong of US Embassy upon which it was decided that he should purchase another air ticket to the United States.

According to Mr. Nikuli the subject has not bought another air ticket thus his continued detention at the JKIA. He submitted that the Applicant could not be allowed entry into the country because he does not possess a valid visa for this purpose. Thus, the situation cannot be arrested by merely asking for his release. Counsel argued that the application was an abuse of the court process and the same ought to be dismissed.

On the part of the Applicant, learned counsel, Mr. Obura, submitted that the Applicant was denied entry into Europe because his visa into the region had expired. He argued that the Applicant should be allowed entry into the country so that he can regularize his stay, through extension of the visa. He submitted that the Applicant was not a prohibited immigrant into Kenya and therefore holding him at JKIA was illegal. Furthermore, he has a Kenyan wife and a child which means that his place of abode is known. Counsel urged for the immediate release of the Applicant.

On behalf of the 1st and 2nd Respondents, learned State Counsel, Ms. Sigei submitted that the application had been overtaken by events because the subject had been produced in court. It was her view that he could not be allowed entry into the country when he did not have a valid visa.

Mr. Nikuli in rejoinder submitted that the visa allowing the subject entry into the country expired as he travelled out of the country.

I have considered the respective submissions. It is factual that the subject purchased an air ticket on 30th September, 2017. He was to travel to Washington through Doha by Qatar Airways, arrival date being 1st October, 2017. A copy of the air ticket was provided to the court. Although the subject did not travel as per the travel schedule, it is not clear why he would not wish to initiate the travel process again. After all, he no longer possesses a valid visa to allow him entry into Kenya. It is also not clear why he wished to travel to Europe despite being aware that he lacked a valid visa or was a prohibited immigrant. I believe this is the more reason Kenyan authorities are reluctant to allow him into the country.

A look at a copy of his passport shows that the validity of his visa in Kenya was extended from 11th July, 2017 to 27th September, 2017. Therefore, it is not true that when he was deported to Kenya his 90 days visa commencing 28th March, 2017 had expired. It is then safe to conclude that the visa expired while he was still being held at JKIA.

It is factual that the issuance of a visa by any country is a discretionary prerogative. No court will compel a State to issue a visa especially where the Applicant is a citizen of another country. As at now, the subject has no valid visa to live, stay or visit Kenya. He is an American citizen and his best recourse is to travel back to his home country. The court at this juncture cannot aid him. It cannot order for his release into the country when he has no valid pass. He can apply for a visa to return to Kenya upon arrival in the United States of America.

That said, I would urge the Director of Immigration to intervene on his behalf to Qatar Airways to allow him to travel to United States of America on the air ticket he purchased on 30th September, 2017 subject to the airlines conditions. Accordingly, the application is dismissed. The Applicant remains under the custody of the Immigration Department until he travels back to the United States of America.

It is so ordered.

Dated and delivered on the 12th day of October, 2017

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Mr. Obura h/b for Mulunga for the Applicant.

2. M/s Sigei for the 1st and 2nd Respondent.

3. Mr. Nikuli for the 3rd Respondent