[2014] KEHC 5651 (KLR)

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