[2022] KEHC 12196 (KLR)

Odondi v Principal Registrar National Registration Bureau (Judicial Review E053 of 2022) [2022] KEHC 12196 (KLR) (Judicial Review) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12196 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E053 of 2022

AK Ndung'u, J

June 9, 2022

Between

Ruth Auma Owuor Odondi

Applicant

and

Principal Registrar National Registration Bureau

Respondent

Judgment

1. Pursuant to leave of court granted on the April 7, 2022, Ruth Auma Owour Owuor Odondi (hereinafter, the applicant) moved this court vide the notice of motion dated April 11, 2022 seeking orders:1)That an order of mandamus to remove (sic) from this honourable court, compelling the Principal Registrar, National Registration Bureau to correct the erroneous applicant’s date of birth in her national identity card form December 20, 1976 to December 23, 1961. 2)That an order of mandamus to remove(sic) from this honourable court, compelling the Principal Registrar, National Registration Bureau produces the applicant’s old generation identification report with the National Registration Bureau.3)That the costs of the application be provided for.

2. The application is based on 15 grounds as set out on the face thereof viz:1)That the applicant previously held an old generation national identity card which she used to apply for her first Kenyan passport in the year 1995 and which bore her date of birth as December 23, 1961. 2)That the applicant hold a Kenyan birth certificate and Kenyan passport both bearing her date of birth as December 23, 1961 and which is her correct date of birth.3)That applicant concomitantly initiated changes to her name together with that of having her date of birth amended but the respondent only effected one and refused to effect the other without advancing any reasonable explanation.4)That the error in the applicant's date of birth on her national identity card is a misdoing of the respondent as the applicant at no point has she ever made any application to have her date of birth changed to December 20, 1976, the erroneous date.5)That the applicant through her advocates wrote to the respondent demanding that her date of birth be corrected or be given an explanation how the same was changed but the respondent did not consider it worthy to respondent or tender an explanation.6)That section 9A (2) (i) of the Registration of Persons Act cap 107 laws of Kenya provides that the National Integrated Identity Management System which the respondent heads shall correct errors in registration details, if so required by a person or on its own initiative to ensure that the information is accurate, complete, up to date and not misleading. that despite the applicant initiating such changes to have her date of birth corrected properly, the respondent has deliberately refused to do the same without any reasonable explanation.7)That the applicant's passport expired on September 21, 2021 and efforts to have the same renewed have been frustrated due to discrepancies on the date of birth in her national identity card.8)That the applicant is an international civil servant based in the United States of America working for the United Nations and her travels have been restricted as a result of being unable to have her passport renewed.9)That the refusal by the respondent to effect change of date of birth is unreasonable, unjustified and unfair in the circumstances.10)That the refusal to effect change on date of birth is in breach of the rules of natural justice.11)That such refusal is against the legitimate expectations of the applicant.12)That the refusal by the respondent to change the date of birth on the applicant's national identity card is manifestly in bad faith.13)That the respondent is subject to the supervisory jurisdiction of this honorable court.14)That the applicant's case is substantively meritorious to justify leave.15)That unless the orders sought are granted the respondent will continue undermining the rule of law therefore violating the rights of the applicant.

3. It is further based on the statutory statement by the applicant dated 11th April and the verifying affidavit sworn on even date.

4. Despite clear evidence of service, the respondent has not appeared in the matter and neither filed a response.

5. The gist of the applicant’s case is that she is a Kenya citizen based in the United States of America working for the United Nations. She previously held an old generation national identity card which she used to apply for her first Kenyan passport in 1995 and which bore her date of birth as December 23, 1961.

6. It is added that she holds a Kenyan birth certificate and Kenyan passport both bearing her date of birth, December 23, 1961 which is her correct date of birth.

7. It is averred that there is an error in the date of birth indicated in the applicant’s National Identity card which reads December 20, 1976 as her date of birth.

8. The applicant’s request to initiate the changes on the strength of her affidavit dated August 30, 2021 was acceded to only to the extent of the change in her name but not on the date of birth.

9. It is the applicant’s case that the said refusal is a breach of her legitimate expectation and is in bad faith. The same is unreasonable, unjustified and unfair in the circumstances.

10. The application was canvassed through written submissions and the applicant’s submissions are on record.

11. I have considered the application, the grounds in support, the statutory statement and the verifying affidavit. Of determination is whether the applicant has made out a case for the grant of the judicial review orders sought.

12. Article 47(1) of the Constitution provides that;“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” Under sub article 2 thereof, it is provided that “if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

13. The above rights find further expression in the Fair Administrative Action Act (FAAA) under section 4.

14. This court has jurisdiction to supervise the administrative action or omission of the respondent. In performance of its duties, the respondent exercises administrative authority and its actions, omissions or decisions affects the legal rights or interests of citizens (see section 3 of the FAA).

15. The purpose of the remedy of judicial review is to ensure that an individual is given fair treatment by the authority to which he or she has been subjected and it is not part of that purpose to substitute the opinion of an individual judge for that of the authority constituted by law to decide the matter in question. As was held in Republic v Kenya Revenue Authorityex parteYaya Towers Limited [2008] eKLR, the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself.

16. In our case, the court’s duty is to review whether, upon application by the ex parte applicant herein to the respondent to amend the alleged erroneous date in the identity card, the respondent has failed to act. The court cannot usurp the statutory mandate of the respondent and prescribe the manner or requirements that the ex parte applicant must meet. That is better left to the respondent but that mandate must be exercised reasonably and in observance of the tenets of natural justice including but not limited to affording the ex parte applicant the chance to put across her case.

17. There is evidence of a letter by the applicant’s advocates to the respondent seeking the desired changes. There has not been much clarity though on when and under which circumstances (if at all) the erroneous date was put in the applicant’s identity card.

18. What is obvious however is that by dint of S9A (2) of the Registration of Persons Act cap 107 laws of Kenya the National Integrated Identity Management System which the respondent heads shall correct errors in registration details, if so required by a person or on its own initiative to ensure that the information is accurate, complete, up to date and not misleading.

19. Thus in the absence of any cogent reasons to the contrary, the respondent is obligated to make any corrections requested. A word of caution though; such corrections must be within the legal limits within which the respondent operates in terms of verification of the information presented in a particular case. The respondent, for example, would not be expected to effect corrections which border on perpetration of a fraud or illegality.

20. The applicant has shown that she has applied to have her details in the Identity card corrected. The respondent has not acted on her application. The applicant now seeks that the respondent be compelled by an order of mandamus to act.

21. So, when is an order of mandamus available to an applicant? The Court of Appeal in the locus classicus Kenya National Examination Council v Republic,exparteGeoffrey Gathenji & 9 others, Nairobi Civil Appeal No 266 of 1996 expounded on the when and the reach of an order of Mandamus, the court stated:“The next issue we must deal with is this: what is the scope and efficacy of an order of mandamus? Once again we turn to Halsbury’s Law of England, 4th Edition Volume 1 and page 111 from paragraph 89. That learned treatise says:-‘The order of mandamus is of a most extensive remedial nature, and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justices may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual’At paragraph 90 headed ‘the mandate’, it stated:‘The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.’What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed …”

22. In view of the above analysis, I find and hold that the respondent is under a duty to act on the applicant’s application for amendment of date of birth details in her identity card. This court cannot, however prescribe the criteria that the respondent should apply as that must be left to its statutory mandate.

23. With the result that the notice of motion dated April 11, 2022 is successful to the extent of the following orders:1. That an order of mandamus be and is hereby issued compelling the Principal Registrar, National Registration Bureau to consider the applicant’s application for correction of the date of birth appearing on her identity card from December 20, 1976 to December 23, 1961. 2.An order of mandamus do and is hereby issued compelling the Principal Registrar to correct the details aforesaid and in the alternative based on his finding upon consideration of the application, give the applicant written reasons should the application be rejected.3. Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JUNE 2022. …………………………………AK NDUNGUJUDGE