[2023] KEHC 23422 (KLR)

Nortje v Cabinet Secretary for Interior and Co-ordination of National Government (Civil Appeal E659 of 2021) [2023] KEHC 23422 (KLR) (Civ) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23422 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E659 of 2021

JN Mulwa, J

October 12, 2023

Between

Badenhorst Nortje

Appellant

and

Cabinet Secretary for Interior and Co-Ordination Of National Government

Respondent

(An appeal from the decision of the Cabinet Secretary for Interior and Coordination of National Government delivered as IL/M2/2021 on 11/02/2021)

Judgment

1. This is an Appeal arising from the Respondent's decision dated February 11, 2021 declining the Appellant's application for review of the decision by the Director of Immigration rejecting the renewal of his class D - employment work permit. In his Memorandum of Appeal dated August 6, 2021, the Appellant avers that he is aggrieved that the Cabinet Secretary for Interior and Co- Ordination of National Government erred in both law and fact:a.By making a decision to reject the Appellant's Review Application to renew his Class D-Employment work permit, without first giving the Appellant any notice or opportunity to be heard.b.By failing to appreciate the principles laid down for a fair hearing, in violation of Article 50 (1) of theConstitution of Kenya 2010 and the rules of natural justice.c.By failing to give reasons leading to his decision made on February 11, 2001 in violation of Section 4(2) of the Fair Administrative Action Act, 2015. d.By failing to consider the material placed before him by the Applicant before arriving at his decision dated February 11, 2021. e.Misdirecting himself on matters of both law and fact as to occasion a miscarriage of justice against the Appellant.f.By failing to uphold the principle of equity in determining the Appellant's Class D-Employment work permit Review Application.g.By making a decision that was otherwise draconian, undeserved and excessive in the circumstances.h.By giving a decision without any basis in law or fact, contrary to Article 47 of the Constitution of Kenya 2010.

2. The Appellant thus prays for orders that:a.This Appeal be allowed and the decision by the Cabinet Secretary for Interior and Co- Ordination of National Government be set aside.b.The Cabinet Secretary for Interior and Co-ordination of National Government be ordered to direct the Department of immigration to approve the Appellant's application for renewal of his Class D work permit submitted on October 10, 2020 and issue the Appellant with a new Class D work permit within 15 days of this Honourable Court’s judgment.c.Costs.

3. The appeal was canvassed through written submissions which this court has duly considered alongside the grounds and record of appeal. In the court’s considered view, the sole issue that falls for determination is whether the appeal has merit.

4. The procedure for issuance of a permit is provided for under Section 40 of the Kenya Citizenship and Immigration Act, 2011 which stipulates thus:'40. Issuance of permits(1)In this section—'Committee' means the permits determination committee appointed by the Cabinet Secretary.(2)An application for a permit shall be made to the Director in the prescribed manner.(3)The Director shall issue a permit of the required class to a person who is not a prohibited immigrant or inadmissible person, who has—(a)made an application in the prescribed manner before entry into Kenya; and(b)satisfied the Committee that he has met the requirements relating to the particular class of permit.(4)The Director shall issue or revoke a permit on recommendations of the Committee.(5)The Committee shall have power to request for additional information and where necessary, summon the applicants, require production of production supporting documents.(6)The Director shall, within fourteen days of receipt of recommendations of the Committee, cause to be issued a permit to an applicant who so applies and qualifies.(7)Where the Director is of the opinion that the issue of permits to an applicant is not in the interest of the country or for any other sufficient reason, the Director may upon giving reasons, in writing, to both the applicant and the Committee—(a)refer the matter back to the Committee for further consideration; or(b)decline to issue the permit to the applicant.(8)Where the application has been referred back to the Committee, the Committee shall, within fourteen days, make its findings to the Director and such findings shall be limited to the reasons given for the referral.(9)Subject to the provisions of this Act, the Committee shall regulate its own procedures.(10)Any person who is aggrieved by a decision made under this section may apply to the Cabinet Secretary for review in the prescribed manner.(11)A notice of approval or rejection as the case may be, of an application under this section shall be issued to the respective applicant in the prescribed manner.(12)Where the notification issued under subsection (11) is for the rejection of the application, an aggrieved applicant may apply for a review of the Cabinet Secretary's decision within a period of ninety days from the date of receipt of the notification and may appeal the decision of the Cabinet Secretary to the High Court.'

5. A reading of section 40(12) above reveals that a person who is aggrieved by the decision of the Cabinet Secretary may either seek a review or appeal against the same to the High Court. It is also evident from the provision that whatever avenue for redress an aggrieved party elects must be pursued within ninety (90) days of receiving a notice of rejection.

6. In the instant case, the Appellant made an application for the renewal of his Class D work permit on October 10, 2020. The Director of Immigration rejected the said application vide a notification dated November 2, 2020 for reasons that the work could be done by a Kenyan. Subsequently, on December 17, 2020, the Appellant’s employer, Morgan Air & Sea freight Logistics Kenya Limited, wrote to the Respondent requesting for review of the decision of the Director of Immigration. The Respondent upheld the decision of the Director of Immigration vide notification dated February 11, 2021 which precipitated the instant appeal.

7. The court notes that the Appellant lodged his appeal on August 6, 2021, almost six months after the decision of the Respondent was made and three months after the appeal window had closed. This was done without seeking and obtaining prior leave of court to extend the time for filing the appeal out of time. In the circumstances, the court holds the considered view that there is no valid or competent appeal on record. The instant appeal is irregular and incompetent. The court cannot therefore pronounce itself on the issues raised therein.

8. Accordingly, the Appeal herein dated August 6, 2021 is struck out with no orders as to costs.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12THDAY OF OCTOBER 2023. JANET MULWAJUDGE