[2014] KEHC 7146 (KLR)
The court found that the applicant, Nadeem Iqbal Mohammad, had already been deported and could not be produced before the court. The respondents provided a reasonable and undisputed explanation that the deportation occurred before the court order was brought to the attention of the Director of Immigration. The court...
Source-derived case information.
- Citation
- [2014] KEHC 7146 (KLR)
- Parties
- Applicant: Nadeem Iqbal Mohammad; Respondent: The Hon. Attorney General; Respondent: The Inspector General of Police; Respondent: The Cabinet Secretary in Charge of Internal Security; Respondent: Director of Immigration Services
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 378 of 2013
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Habeas Corpus Application
- Outcome
- application dismissed
- Judges
- LA Achode
- Legal Topics
- Habeas Corpus, Deportation, Court Orders, Contempt of Court
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nadeem Iqbal Mohammad
Applicant
The Hon. Attorney General
Respondent
The Inspector General of Police
Respondent
The Cabinet Secretary in Charge of Internal Security
Respondent
Director of Immigration Services
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Habeas Corpus Application
Legal Issues
- 1 Whether the respondents were required to produce the applicant, Nadeem Iqbal Mohammad, before the court pursuant to a habeas corpus application.
- 2 Whether the deportation of the applicant was effected in defiance of a court order.
- 3 Whether the respondents offered a reasonable explanation for not producing the applicant.
Ratio Decidendi
The court found that the applicant, Nadeem Iqbal Mohammad, had already been deported and could not be produced before the court. The respondents provided a reasonable and undisputed explanation that the deportation occurred before the court order was brought to the attention of the Director of Immigration. The court held that the habeas corpus application was therefore spent, as the purpose of the writ could no longer be fulfilled. Additionally, the court declined to make a finding of contempt, noting that such a cause of action would require a separate, properly filed application, and that the evidence presented did not establish willful defiance of the court order. As a result, the...
Court Disposition
application dismissed
Orders
- The application for habeas corpus is dismissed.
- No finding of contempt is made against the respondents.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEUS CRIMINAL APPLICATION NO. 378 OF 2013
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF CRIMINAL PROCEDURE CODE
AND
IN THE MATTER OF AN APPLICATION FOR DIRECTIONS
IN THE NATURE OF HABEAS CORPUS
AND
IN THE MATTER OF THE CIRMINAL PROCEDURE (DIRECTIONS IN THE NATURE OF HABEAS CORPUS) RULES
IN RESPECT OF: NADEEM IQBAL MOHAMMAD .......................APPLICANT
VERSUS
THE HON. ATTORNEY GENERAL ....................................1ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE........................2ND RESPONDENT
THE CABINET SECRETARY
IN CHARGE OF INTERNAL SECURITY ..........................3RD RESPONDENT
DIRECTOR OF IMMIGRATION SERVICES ......................4TH RESPONDENT
R U L I N G
The application on this file was brought by way of Chamber Summons dated 11th November 2013. In the said application it was prayed in prayer No.2, that the court be pleased to issue summons directed at the second, third and fourth respondents, in whose custody one Nadeem Iqbal Mohammad was held, requiring them to appear either in person or by advocate and to produce the said Nadeem Iqbal Mohammad before the court.
On the same date of 11th November 2013 the matter came up before the court under certificate of urgency and was indeed certified urgent and orders issued in terms of prayer No. 2. The summons was set for return on 14th November 2013.
On the 14th November 2013 Miss Aluda, learned State Counsel brought to court a letter from the Ministry of Interior and Co-ordination of National Government showing that the applicant had already been deported and that therefore, the application for Habeas Corpus had been overtaken by events.
In a rejoinder Mr. Ochieng learned counsel for the applicant told the court that the state was served before the deportation was effected and that therefore, the said deportation was in defiance of the court order. He prayed that one Mr. Alfred Omangi Obuya the deponent of the affidavit who was also the Chief Immigration Officer, be summoned to court for cross-examination to show that the deportation was in defiance of court orders.
Mr. Obuya did attend court on 21st January 2014 pursuant to a court order and was subjected to cross-examination by Mr. Ochieng. Mr. Obuya told the court that indeed Mr. Nadeem had been deported on 11th November 2013 at 19. 45 p.m. Further that the court order which was served on the Registry staff on the afternoon of 11th November 2013, was not brought to the attention of the Director of Immigration until the next morning on 12th November 2013.
Black’s Law Dictionary 9th Edition at page 778 defines Habeas Corpus as:
“A writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal.”
The person to whom the writ is directed, is therefore required to produce the body of the person on whose behalf the application is made, or give a satisfactory explanation as to why the body cannot be produced.
In the case before me it is not in dispute that the applicant has since been deported and cannot therefore be produced. That in my view is a reasonable explanation.
In an “addendum” to the above application Mr. Ochieng made an oral application before me praying that the court do make a finding that the deportation of Mr. Nadeem Iqbal was effected after the state had been served with an order requiring them to produce him in court and that therefore the stated acted in defiance of the court order. I have difficulty in making such a finding for the following reasons:
A reasonable explanation has been offered by the respondents as to why the applicant’s body cannot be produced in court, and that explanation in itself not disputed. The application for Habeas Corpus is therefore spent.
The cause of action which would result in a finding that the stated acted in contempt of a court order belongs in a different application. I see no such application before me and I do agree with Mr. Bitta for the respondents that it is unfair and improper for a party to canvas an application orally and without notice to the other parties.
Even if the application had been properly filed to move the court to hold that the respondents were in contempt of court orders, the material presented before me and the evidence presented by way of cross-examination of the Chief Immigration Officer would not suffice to lead a court to the conclusion that the respondents were in blatant defiance of court order and should be held to be in contempt of the said court.
Pursuant to reasons set out above I find that this application has no merit and I dismiss it.
SIGNED DATEDandDELIVEREDin open court this 29thday of January 2014.
L. A. ACHODE
JUDGE