https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7050

Okode v Edha alias Al-Hamoodi Naif Saleh Edha & 4 others (Constitutional Petition E221 of 2025) [2026] KEHC 7050 (KLR) (Constitutional and Human Rights) (13 May 2026) (Judgment) Neutral citation: [2026] KEHC 7050 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E221 of 2025 B Mwamuye, J May 13, 2026 Between George Omondi Okode Petitioner and Naif Swaleh Edha alias Al-Hamoodi Naif Saleh Edha 1st Respondent Ministry of Interior & National Administration State Department for Internal Security and National Administration 2nd Respondent Director of Imigration 3rd Respondent Director of Registration of Persons 4th Respondent Inspector General of Police 5th Respondent Judgment 1.This judgment arises from a constitutional Petition and Notice of Motion invoking Articles 10, 22, 23, 40, 159 and 165 of the Constitution of Kenya, 2010, together with the Civil Procedure Act and Rules. The dispute centres on allegations of unlawful issuance and possession of a Kenyan National Identity Card by the 1st Respondent, who is alleged by the Petitioner to be a foreign national, and the attendant claims of administrative failure by State agencies responsible for immigration, registration of persons, and internal security. 2.The Petitioner contends that discrepancies between the 1st Respondent’s passport particulars and national identity records raise doubts as to the legality of his documentation and lawful presence in Kenya, thereby implicating concerns of public and national security. The Petition is directed against the 2nd, 3rd, 4th and 5th Respondents for alleged failure to discharge their statutory and constitutional duties in verifying and regulating the 1st Respondent’s entry and identification status. 3.The 1st Respondent opposes the Petition, raising a Preliminary Objection on jurisdiction and asserting that the dispute falls within the statutory framework governing citizenship determination under the Kenyan Citizenship and Immigration Act, with limited judicial intervention. On the merits, he maintains that he is a Kenyan citizen by birth, duly documented under Article 14(1) of the Constitution, and denies all allegations of illegality, fraud, or involvement in any unlawful activity, terming the Petition speculative and malicious. 4.The Court is therefore called upon to determine issues of jurisdiction, the legality of the 1st Respondent’s citizenship status, and whether the Respondents have breached constitutional and statutory obligations in the issuance and administration of national identity documentation. The Petitioner’s Case 5.At the heart of the consolidated claim is an allegation of breach of constitutional and statutory duties by State agencies mandated with immigration, registration, and internal security functions, and an asserted threat to national security arising from the continued presence and identity documentation of the 1st Respondent. 6.The Petitioner avers that the 1st Respondent is a foreign national of Yemeni origin who is alleged to have been irregularly issued with a Kenyan National Identity Card in contravention of the governing legal framework. It is contended that there exist material inconsistencies between the particulars contained in the 1st Respondent’s passport and those reflected in the Kenyan identity records, particularly with regard to date and place of birth. These alleged discrepancies, it is argued, cast serious doubt on the legality, authenticity, and propriety of the identification process, thereby giving rise to a reasonable apprehension that the 1st Respondent may not be lawfully present within the Republic of Kenya. 7.It is further the Petitioner’s case that the 2nd, 3rd, 4th and 5th Respondents, being the Ministry of Interior and National Administration, the Directorate of Immigration Services, the Directorate of Registration of Persons, and the Inspector General of Police respectively, failed to discharge their constitutional and statutory obligations by issuing, facilitating, or failing to verify the propriety of the impugned identity documentation. This alleged omission is pleaded as a violation of the constitutional principles of accountability, legality, and security under Article 10 of the Constitution. 8.The Petitioner further contends that the circumstances surrounding the entry and continued presence of the 1st Respondent in Kenya remain unexplained, and raises an apprehension though not supported by adjudicated evidence that the 1st Respondent may be engaged in unlawful activities, including allegations of human trafficking. It is thus contended that the ambiguity surrounding the 1st Respondent’s identity and immigration status poses a threat not only to the Petitioner’s personal security but also to the safety and security of the public at large. 9.Arising from the foregoing, the Petitioner seeks the following reliefs:i.A declaration that the 1st Respondent was illegally issued with Kenya National Identity Card.ii.An Order directing the 2nd Respondent and 3rd Respondent to clarify the status of the 1st Respondent and how he entered Kenya.iii.An Order directing the 3rd Respondent and the 4th Respondent to clarify bow the 1st Respondent was issued with the Kenya National Identity Card.iv.An Order directing the 2nd Respondent and the 5th Respondent to investigate the activities of the 1st Respondent, how he entered Kenya and how he acquired Kenya National Identity Card.v.That the Honourable Court do grant any other order it deems fit to grant.vi.Cost of this Petition be provided. 10.In essence, the Petition constitutes a constitutional challenge premised on alleged irregular issuance of national identity documentation to a foreign national, asserted non-compliance by State agencies with statutory and constitutional obligations, and an alleged resultant threat to constitutional guarantees of security. 1st Respondent’s Case 11.The 1st Respondent opposes the Petition through a Replying Affidavit and written submissions, raising both a jurisdictional challenge and a substantive defence anchored on citizenship by birth, legality of documentation, and denial of evidential foundation for the allegations made. 12.As a preliminary issue, the 1st Respondent contends that the Petition is incompetent, misconceived, and an abuse of the court process. He asserts that disputes relating to citizenship determination and revocation fall within the statutory framework under Section 21 of the Kenyan Citizenship and Immigration Act, which vests decision-making authority in the Cabinet Secretary upon recommendation of the Citizenship Advisory Committee. On this basis, he argues that the High Court lacks original jurisdiction to entertain the Petition, reliance being placed on Khan (Trustee and Coordinator of the Blue International Organization) v Attorney General & 2 others (Constitutional Petition E488 of 2022) [2023] KEHC 18691 (KLR), for the principle that where statute provides an alternative dispute resolution mechanism, such process must first be exhausted. 13.On the merits, the 1st Respondent denies all allegations of illegality, fraud, or irregular acquisition of identity documentation. He avers that he is a Kenyan citizen by birth, having been born on 19th April 1981 in Mombasa District (as then known), and is the son of Kenyan parents, namely Swaleh Edha and Balkas Salam Abdall. He relies on his Kenyan National Identity Card No. 23334528 and birth certificate as conclusive proof of citizenship, asserting that his status is constitutionally anchored under Article 14(1) of the Constitution of Kenya, 2010. 14.He further states that he is lawfully engaged in business within the Republic of Kenya, operating a registered hotel known as WADI HARDRAMOUT HOTEL, duly licensed under the applicable legal framework, thereby demonstrating lawful residence and economic activity. 15.The 1st Respondent denies any involvement in unlawful conduct, including allegations of human trafficking, and places the Petitioner to strict proof. He further contends that the alleged discrepancies in identity documentation are speculative and incapable of displacing his constitutional citizenship status. He characterises the Petition as malicious, vexatious, and unsupported by evidence, and notes that the Petitioner is a stranger to him with no demonstrated interaction or factual nexus. 16.He further contests the evidential basis of the Petition, asserting that no proof has been tendered to demonstrate illegal entry into Kenya, fraudulent acquisition of documents, or any threat to national security attributable to him. He also pleads prejudice, stating that he is a family man and that the orders sought would adversely affect his dependants and disrupt his lawful business operations. 17.The 1st Respondent urges the Court to uphold the Preliminary Objection, find that the Petition is devoid of merit, speculative, and an abuse of the court process, and dismiss it with costs, reiterating that he is a Kenyan citizen by birth entitled to full constitutional protection under Article 14(1) of the Constitution. 18.The 2nd, 3rd, 4th and 5th Respondents, despite having been duly served and being integral parties to these proceedings, did not file any pleadings in response to the Petition or the Notice of Motion. The Court is therefore left with no articulated position from the said Respondents and is constrained to determine the issues arising as against them solely on the basis of the pleadings and material presented by the Petitioner and the 1st Respondent. Analysis And Determination 19.Having carefully considered the pleadings, affidavits, submissions, and the applicable constitutional and statutory framework, the Court is of the view that the following issues fall for determination:i.Whether this Honourable Court has jurisdiction to entertain and determine the Petition in light of the Preliminary Objection raised by the 1st Respondent.ii.Whether the Petitioner has established that the 1st Respondent was unlawfully issued with a Kenyan National Identity Card or is unlawfully present within the Republic of Kenya.iii.Whether the Petitioner is entitled to the reliefs sought in the Petition. Whether this Honourable Court has jurisdiction to entertain and determine the Petition in light of the Preliminary Objection raised by the 1st Respondent 20.Jurisdiction is the foundational authority upon which judicial power rests. Without it, a court acts in vain. The classical exposition on the centrality of jurisdiction remains the oft-cited decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where Nyarangi JA stated that jurisdiction is everything and that a court must down its tools the moment it forms the view that it lacks jurisdiction. 21.The 1st Respondent raises a Preliminary Objection founded upon Section 21 of the Kenyan Citizenship and Immigration Act, contending that matters touching on citizenship revocation fall within the exclusive mandate of the Cabinet Secretary acting upon the recommendation of the Citizenship Advisory Committee. It is therefore argued that this Court lacks original jurisdiction and may only exercise appellate oversight after exhaustion of the statutory process. 22.The Court has carefully considered that objection. While it is true that Section 21 of the Kenyan Citizenship and Immigration Act establishes a statutory mechanism for revocation of citizenship, the present proceedings are not, strictly speaking, initiated as revocation proceedings under the Act. The Petitioner approaches the Court alleging constitutional violations, failure by State organs to discharge constitutional obligations, and threats to public security arising from alleged irregular issuance of national identification documents. 23.Under Article 165(3)(b) and (d) of the Constitution, the High Court is vested with jurisdiction to determine questions concerning the violation of rights and freedoms, as well as the interpretation of the Constitution and the legality of actions undertaken by State organs. The jurisdiction donated by the Constitution cannot lightly be ousted except by express constitutional limitation. 24.However, while the Court retains jurisdiction to interrogate allegations of constitutional infractions and legality of administrative action, it must equally exercise restraint where Parliament has established specialised statutory mechanisms for determination of particular questions. Courts have consistently held that where a clear and efficacious dispute resolution framework exists, parties ought, in the first instance, to exhaust that mechanism before invoking the Court’s jurisdiction. This principle was restated in Speaker of the National Assembly v Karume [1992] KLR 21, the Court of Appeal held that where the Constitution or statute establishes a dispute-resolution procedure, that mechanism must be exhausted before a party approaches the Court. 25.In the present matter, the Petitioner seeks, inter alia, a declaration that the 1st Respondent was illegally issued with a Kenyan National Identity Card and orders compelling investigations into his citizenship and immigration status. Such questions are, by their very nature, matters falling substantially within the statutory and administrative mandate of the relevant State agencies established under the Kenyan Citizenship and Immigration Act and allied legislation. 26.Nevertheless, this Court is not persuaded that its jurisdiction is entirely ousted merely because the subject matter touches on citizenship. Constitutional jurisdiction remains intact where allegations are made that State organs have acted unlawfully, irrationally, or in violation of constitutional principles. The true question, therefore, is not whether the Court lacks jurisdiction altogether, but whether the Petitioner has demonstrated sufficient factual and legal basis to warrant the exercise of that jurisdiction. 27.Accordingly, while the Preliminary Objection does not succeed to the extent of completely divesting this Court of constitutional jurisdiction, the statutory framework governing citizenship and immigration remains highly relevant in assessing the propriety and evidential sufficiency of the Petition before Court. Whether the Petitioner has established that the 1st Respondent was unlawfully issued with a Kenyan National Identity Card or is unlawfully present within the Republic of Kenya 28.The burden of proof rests upon he who alleges. This principle is not merely a procedural technicality but a cardinal rule of evidence and adjudication underpinning the administration of justice. Sections 107 and 109 of the Evidence Act, Cap 80 Laws of Kenya, are unequivocal on this position. Section 107(1) provides that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 29.Section 107(2) further stipulates that:“When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 30.Similarly, Section 109 of the Act provides that:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 31.The import of these provisions is that a litigant who approaches the Court seeking declaratory, coercive, or constitutional relief bears the legal obligation of placing before the Court cogent, credible, and admissible evidence capable of proving the facts asserted. Allegations, however grave, cannot substitute proof. The legal burden remains constant throughout the proceedings save in circumstances recognised by law. 32.The foregoing principle has received consistent affirmation and unwavering judicial endorsement in the jurisprudence of the superior courts. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 or [1983] eKLR the Court of Appeal held that the burden of proof rests upon the party asserting a claim throughout the proceedings, and that a court can only find in favour of such party where credible and believable evidence has been adduced sufficient to establish the claim on a balance of probabilities. 33.The Court emphasized that courts are not permitted to act on mere suspicion, conjecture, or speculation. 34.Likewise, in Mumbi M'Nabea v David M Wachira [2016] eKLR, where the Court of Appeal stated:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 35.The Court thereby underscored that even in the absence of rebuttal evidence, a claimant must still discharge the burden imposed by law. 36.Further guidance may be drawn from the Supreme Court decision in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, where the Court stated:“A petitioner should be under obligation to discharge the initial burden of proof before the respondents are invited to bear the evidential burden.” 37.The Supreme Court affirmed that the evidential burden only shifts after a prima facie case has first been established by the party bearing the legal burden. 38.In the present matter, the Petitioner’s case is principally predicated upon alleged inconsistencies between the particulars appearing in the 1st Respondent’s passport and those reflected in his Kenyan National Identity Card, particularly with respect to date and place of birth. From those perceived discrepancies, the Petitioner invites this Court to infer that the 1st Respondent unlawfully procured Kenyan identification documents and is consequently unlawfully present within the Republic of Kenya. 39.The Court has carefully and considered the evidentiary material placed before it. Beyond the allegations and apprehensions expressed in the Petition and Supporting Affidavit, no independent investigative report, forensic analysis, official communication from the Directorate of Immigration Services, the Directorate of Registration of Persons, or any expert verification was tendered to establish fraud, forgery, impersonation, misrepresentation, or unlawful acquisition of citizenship documentation by the 1st Respondent. The allegations remain, in substance, unsubstantiated assertions. 40.Conversely, the 1st Respondent has placed before the Court documentary evidence including a Kenyan National Identity Card, a birth certificate indicating that he was born in Mombasa in 1981, and documents demonstrating lineage to Kenyan parents. He has further anchored his claim on Article 14(1) of the Constitution of Kenya, 2010, which expressly provides that:“A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.” 41.The constitutional presumption arising from documentary proof of citizenship cannot be displaced lightly, particularly in the absence of cogent and credible evidence demonstrating fraud, illegality, or procedural impropriety. 42.Importantly, citizenship is not a trivial or transitory status. It is a constitutionally guaranteed legal relationship between an individual and the State, carrying profound legal, civil, social, and political consequences. Courts must therefore exercise utmost circumspection where allegations are made seeking to impeach citizenship status or impugn the legality of identity documentation. Such allegations must be supported by cogent, credible, and verifiable evidence. Mere suspicion, conjecture, apprehension, or public anxiety, however strongly held, cannot constitute a sufficient evidentiary basis upon which a court of law may invalidate citizenship documentation or curtail constitutional rights. 43.The Petitioner further alluded to allegations of unlawful activities, including human trafficking. However, no evidence whatsoever was tendered linking the 1st Respondent to criminal conduct, investigations, arrests, prosecutions, intelligence findings, or determinations by any competent authority. The law is well settled that courts of law determine disputes on the basis of evidence and established legal principles, not speculation, suspicion, or unsubstantiated allegations. 44.The Court further observes that the Petitioner did not demonstrate that any formal complaint was lodged before the relevant administrative or investigative agencies prior to the institution of these proceedings. There is no evidence that the Petitioner invoked the statutory mechanisms available under the immigration, citizenship, or registration framework for purposes of verification or investigation. In effect, the Petition invites this Court to assume an investigative and fact-finding role reserved for specialised State agencies established under statute and vested with technical and investigative mandates. 45.In Anarita Karimi Njeru v Republic [1979] KLR 154, the Court underscored the principle that constitutional litigation must be pleaded with precision, and that a party alleging constitutional violation must set out with reasonable particularity the manner of infringement complained of. That principle has consistently been reaffirmed by superior courts, including in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, where the Court of Appeal held that constitutional petitions must disclose a clear factual and legal basis capable of sustaining the reliefs sought. 46.Applying the foregoing principles to the present matter, this Court is not satisfied that the Petitioner discharged the evidentiary burden imposed under Sections 107 and 109 of the Evidence Act. The material placed before Court falls short of establishing, on a balance of probabilities, that the 1st Respondent unlawfully acquired Kenyan citizenship documentation or is unlawfully present within the Republic of Kenya. The allegations made, though serious in nature, remain unsupported by probative evidence capable of warranting the intervention of this Court. 47.Consequently, the Court finds and holds that the Petitioner has failed to establish, to the requisite legal threshold, that the 1st Respondent was unlawfully issued with a Kenyan National Identity Card or is unlawfully present within the Republic of Kenya. Whether the Petitioner is entitled to the reliefs sought in the Petition 48.Having found that the Petitioner failed to discharge the evidentiary burden necessary to substantiate the allegations made against the 1st Respondent, it follows that the substantive reliefs sought cannot issue. 49.A declaration that the 1st Respondent was illegally issued with a Kenyan National Identity Card would require cogent proof of illegality, fraud, procedural impropriety, or constitutional violation. No such proof has been placed before the Court. 50.Equally, the coercive and investigatory orders sought against the State Respondents cannot issue merely on the basis of speculative apprehension absent demonstrable factual foundation. While State agencies undoubtedly bear constitutional and statutory obligations relating to immigration control, registration of persons, and national security, the Court cannot compel investigatory or enforcement action in the absence of prima facie evidence disclosing illegality or dereliction of duty. 51.The Court must also guard against transforming constitutional litigation into a vehicle for generalized suspicion unsupported by evidence. Constitutional remedies are extraordinary in nature and are granted upon demonstration of actual or threatened violation of rights or constitutional obligations through credible evidentiary material. 52.Accordingly, the Court finds that the Petition is devoid of merit and the reliefs sought are not available in the circumstances of this case. 53.As regards costs, while costs ordinarily follow the event, the Court is mindful that the Petition was presented as a matter touching on public interest and alleged constitutional concerns. In the exercise of judicial discretion, the Court finds it appropriate that each party shall bear its own costs. Conclusion 54.For the foregoing reasons, this Court is not persuaded that the Petitioner has discharged the requisite evidentiary and legal burden necessary to warrant the grant of the reliefs sought. The allegations advanced against the 1st Respondent remain largely speculative and unsupported by cogent, credible, and probative evidence capable of sustaining the serious constitutional and legal declarations sought. Equally, no sufficient basis has been established to justify the issuance of the coercive and investigatory orders sought against the Respondents. 55.Accordingly, the Court finds that both the Notice of Motion and the substantive Petition are devoid of merit and are for dismissal. The final orders of the Court are therefore as follows: -a.The Notice of Motion dated 23rd April 2025 is dismissed.b.The Petition dated 23rd April 2025 is dismissed.c.Each party shall bear its own costs.Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 13TH DAY OF MAY 2026.………………………………….BAHATI MWAMUYE MBSJUDGE.In the Presence of:Counsel for the Petitioner – Mr. OduorCounsel for the 1st Respondents – Mr. GithuiCounsel for the 2nd, 3rd, 4th, and 5th Respondents – No AppearanceCourt Assistant – Mr. Martin