[2023] KEHC 25029 (KLR)

Pengadiowo v Cabinet Secretary Ministry of Interior & Co-ordination of National Government & 2 others (Petition 21 of 2022) [2023] KEHC 25029 (KLR) (Constitutional and Human Rights) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25029 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 21 of 2022

LN Mugambi, J

November 9, 2023

Between

Placide Ndianga Pengadiowo

Petitioner

and

Cabinet Secretary Ministry of Interior & Co-ordination of National Government

1st Respondent

Director Immigration

2nd Respondent

Attorney General

3rd Respondent

Ruling

1. The petitioner, Placide Ndianga Pangadiowo is a Democratic Republic of Congo national who frequently visited Kenya either for vacation or on a mission to see his fiancée, one Sheila Mbabu, a Kenyan business lady who lives in Ruaka, Kiambu County with whom they had plans to marry.

2. On 20th November, 2020; the petitioner was flying out of the Country to Kinshasa through Jomo Kenyatta International Airport when an immigration officer at the exit desk made a remark that was directed at him as follows: -“…Unajua Wewe Hata Hufai Kuwa Kenya…”When he enquired why, the immigration officer told him it was by orders of the 1st Respondent.

3. The petitioner stated that prior to that incident, he had neither been questioned, investigated nor arrested by any security organ or given any reasons for the said prohibition.

4. On 22nd January, 2021 he attempted to enter the country through Moi International Airport Mombasa but he was denied entry and had to fly back to Kinshasa through Addis Ababa.

5. The petitioner thus instituted these proceedings alleging his rights to fair administrative action were violated.

6. The 1st, 2nd and 3rd Respondent’s did not respond to the main petition. They however filed a notice of preliminary objection dated 8th June, 2023 through State Counsel, Miss Ann Wanja Wanjiru.

7. M/s Wanjiru’s objection is premised on the fact that the petitioner did not exhaust all the internal dispute Resolution mechanisms. She relied on Section 9(2) of the Fair Administrative Action Act, 2015 as read with Section 57 (1) & (2) of the Kenya Citizen & Immigration Act, No. 12 of 2011. In the circumstances, it was her contention that the dispute is not ripe for determination before the Court.

8. In her brief submissions, M/s Wanjiru submitted that under Section 9(2) of the Fair Administrative Action Act, 2015; the High Court and subordinate court are precluded from entertaining review of an administrative action or decision under the Act unless the internal mechanisms for appeal or review under any other written law have been exhausted. She argued that pursuant to Section 9(3), the High Court and Subordinate court are required, when not satisfied that the remedies referred to in Section 9 (2) have been exhausted, to direct that the applicant to exhaust all such remedies first before instituting proceedings in Court.

9. M/s Wanjiru submitted the Petitioner approached the court directly before exhausting all other internal remedies and without the court’s permission under section 9 (4).

10. It was submitted on behalf of the Respondent that Section 57(1) & (2) of the Kenyan Citizen and Immigration Act, No. 12 of 2011provides the basis for a review or appeal by any person aggrieved by a decision of a public officer made under the Act or for review or appeal against the decision of the Cabinet Secretary or the service to the High Court.

11. M/s Wanjiru pointed out that Section 9(1) of the Fair Administrative Action Act, 2015 provides for the procedure of approaching the court should internal remedies fail which is by way of filing for judicial review and not through the means adopted by the petitioner in the instant proceedings. She cited the relevant provisions which read as follows:9. Procedure for judicial review(1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

12. M/s Wanjiru relied on the case of; - Republic Vs Kenya Revenue Authority ex parte Style Industries Ltd (2019) eKLR and Martin Kabubi Mwangi Vs County Government of Laikipia (2019) eKLR. Further, the case of William Odhiambo Ramogi & 3 Others Vs Attorney General and 4 others; Muslims for Human Rights & 2 others (Interested parties) 2020 eKLR, where it was held as thus: -“…The exhaustion doctrine serves the purpose of ensuring that there is postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in protection of his own interest within the mechanisms in place for resolution of disputes outside the courts…”

13. She also cited the case of Albert Chaurembo Mumbo and 7 Others Vs Maurice Munyao & 148 Others, SC. Petition No. 3 of 2016 (2019) eKLR where their Lordships stated thus: -“….. even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute. We emphasized that where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their Jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance."

14. In response to the preliminary objection; Ngari and Kaburu Advocates for Petitioner submitted that there is no known law that prohibits the High court of Kenya from deciding a Constitutional petition where fundamental rights have been trampled upon. Counsel argued vehemently as follows: -“The doctrine of exhaustion does not apply where a party approaches the superior court alleging his rights have been infringed by way of filing a petition, Article 159 (2) (d) of the Constitution states that ‘Justice shall be administered without undue regard to technicalities’”

15. Counsel for the petitioner further submitted that while the petition had a fair share of it founded on principles of Fair Administrative Action Act, the court needed to note that he remedies available under the Fair Administrative Actions Act were limited to certiorari, mandamus and prohibition which the petitioner was not seeking. He asserted: -“… this petition does not ask the Honourable Court to review any decision; it also not an appeal to(sic) any decision and petitioner’s concern is not just about the administrative process but rather the decision itself, it, therefore, follows that the preliminary objection as founded by Case law annexed to the preliminary objection does not apply to this petition but would apply to Judicial Review application or an appeal filed within time…”

16. The Petitioner’s advocate submitted that the petition should be heard because the petitioner could not comply with such internal remedies as contemplated by the law due to the fact that on 22nd January, 2021, being a foreigner, he was stranded at the Airport at the time, and did not have access to an Advocate or his fiancée hence would not have been expected to know that Judicial Review proceedings ought to have been filed within six (6) months.

17. Moreover, the petitioner’s counsel argued that it would not even make sense for anyone to apply for Judicial Review in the absence of certain details such as the formal written decision or notice, which the petitioner could not be provided with at the hostile immigration desk. He submitted thus: -“…The same being unavailable within six months of learning of the oral orders, it then followed that the proper forum to ventilate on the infringement of his rights to enter the country, visit his fiancée and even wed/marry is by way of filing this petition…”

Determination and Analysis 18. The preliminary objection is primarily based on the doctrine of exhaustion of remedies which simply means that where there is an alternative statutory procedure for dispute resolution, the procedure should be exhausted by a party first prior to instituting a dispute in court. Section 9 (2) of the Fair Administrative Action Act has incorporated this principle by providing thus:‘The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.’

19. Counsel for the petitioner in opposition submitted that this doctrine has no application whatsoever in matter where the question for determination touches on infringement of fundamental rights.

20. This submission by the Petitioner’s counsel lacks merit. The foundation of the doctrine is firmly rooted in the constitution itself. Article 159(2) (c) of the Constitution recognizes alternative forms of dispute resolution as part of principles that shall guide the court in exercising judicial authority.

21. Besides, courts have firmly pronounced themselves loud and clear in interpretation of the constitution by giving effect to this doctrine as illustrated in the following decisions. In Geoffrey Muthiga Kabiru & 2 Others Vs Samuel Munga Henry 1756 Others (2015) eKLR the Court of Appeal re-affirmed the doctrine by stating thus: -“… It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…”

22. Further, the fact that the High Court has unlimited jurisdiction under Article 165 does not mean it should run roughshod over the other bodies or persons with authority to resolve disputes and make them irrelevant.

23. Justice Mativo in Lugo Vs Director of Public Prosecution (Petition NO. 62 of 2020) 2022 KEHC 10574 elaborately clarified the position by stating thus: -“…The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance….. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system. ………In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause.”

24. The question then becomes, in filing this Constitutional Petition, did the Petitioner offend the doctrine of exhaustion of remedies?

25. The petitioner alleges that that his action was taken following what he underwent at the Airport where he was a verbally informed by immigration exit desk officer he was no longer permitted to be in the country pursuant to an order by the 1st Respondent.

26. Neither a written/formal order was showed to him nor were any reasons given to him at the time and even later on. No advance notice had been given him. He had not been subjected to any investigations or even ever arrested for anything.

27. In my view, going by the petitioner’s narration, his grievances seem to be directed to the processes (ambush or lack of prior notice) and the manner the decision was communicated (with no reasons being provided). Nevertheless, the submissions by his Advocate are quite paradoxical. He submitted:“…. The petitioner does not ask the court to review any decision, it’s also not an appeal to any decision and petitioner’s concerns is not about the administrative process but rather the decision itself….”

28. If the issue is not about reviewing any decision, what does the petitioner mean by the assertion ‘but rather the decision itself?’ What is this Court then required to act on?

29. Secondly, if the concern is not about the administrative process, why then bother to lament about the lack of advance notice being issued or that he was not given any reasons, or he was not under any investigation or arrest and so on. Are all these matters not about administrative processes?

30. If the issue is not about reviewing the decision and not about the administrative process, what is it about?

31. In my view, a careful reading of the petition shows that it is about the administrative processes and thus provisions of Fair Administrative Action Act do apply.

32. In John Harun Mwau VS Peter Gastrow & 3 Others (2014) eKLR the Court stated thus:“…courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to breach of other declaration of rights…it is established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so…”

33. Counsel for the petitioner further submitted that the remedies under the Fair Administrative Action Act are only certiorari, mandamus, and prohibition which the petitioner is not seeking hence consigning him to strictly complying with the provisions of that Act would constrain him. That submission is legally misconceived.

34. Section 11 of the Fair Administrative Action Act has ten (10) different reliefs that can be granted in proceedings commenced under the Fair Administrative Action Act. It does not restrict the remedies to the three traditional judicial review orders of certiorari, mandamus and prohibition as submitted by counsel for the petitioner.

35. Having, therefore, found that the provisions of the Fair administrative Action Act applied to the circumstances of the Petitioner, was this dispute ripe for institution in Court?

36. The petitioner claimed that verbal communication was made to him at the Airport as he exited and was not provided with any reasons. To date he has never received the formal written decision or the reasons thereof.

37. Under Section 4(2) of the Fair Administrative Action Act, every person has the right to be given written reasons for any administrative action that is taken against him. Section 6 of the Act then makes provision for ensuring that those affected are provided with the reasons, Section 6(1) provides: -(1)Every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary to facilitate his or her application for an appeal or review in accordance with Section 5. (2)The information referred to in subsection (1), may include–(a)the reasons for which the action was taken; and(b)any relevant documents relating to the matter.(3)The administrator to whom a request is made under subsection (1) shall, within thirty after receiving the request, furnish the applicant, in writing, the reasons for the administrative action.(4)Subject to subsection (5), if an administrator fails to furnish the applicant with the reasons for the administrative decision or action, the administrative action or decision shall, in any proceedings for review of such action or decision and in the absence of proof to the contrary, be presumed to have been taken without good reason.(5)An administrator may depart from the requirement to furnish adequate reasons if it is reasonable and justifiable in the circumstances, and shall inform the person making the request of such departure.

38. Although the Fair Administrative Action Act empowered the petitioner to demand for written reasons, which the 1st respondent was by law obligated to provide within 30 days, failing which the decision made would be deemed to have been made without any good reason; the petitioner did not bother, and to date has never bothered to write to the 1st Respondent asking for the written reasons. Yet in this petition, the petitioner lamented thus: -“… The petitioner having learnt of the prohibition and also subsequently failing to get any details as to reasons and date decisions was made was not able to apply for review/appeal as an internal remedy...”

39. There is no indication or evidence annexed to his affidavit in support of the petition or even to the petition itself that he sought for the said reasons in writing as provided for in Section 6(1) of Fair Administrative Action Act. Instead the petitioner attempts to justify his in-action by submitting thus: -“… the petitioner was fully unable to comply with such internal remedies as contemplated by the law, in fact, being a foreigner and also stranded in the airport at the time…”

40. The reasons given by the petitioner for non-compliance are un- convincing. The issue at hand is non-compliance with internal mechanisms prior to the institution of the petition, not when he was at the Airport.

41. This petition was filed on 14th October, 2021. The incident-giving rise to the petition allegedly occurred on 20th November, 2020 when he was given the verbal order and again on 20th January, 2021, when he was denied entry into Kenya.

42. Between the latest incident, 20th January, 2021 and 14th October, 2021 when he filed the petition, that is a period of almost 10 months. During the entire period, he did not write to 1st Respondent pursuant to section 6 (1) of the Fair Administrative Action seeking reasons for the decision even if only to gather enough grounds for challenging the decision.

43. To do that, he never even needed to be physically present in Kenya. Section 58(1) of the Kenyan Citizenship & Immigration Act provides that any application or inquiry or other action may be carried out through electronic means. In any case, he was able to instruct an advocate to file this petition whilst physically absent from Kenya hence his absence could not have incapacitated him from seeking written reasons for the decision under Section 6 (1) of the Fair Administrative Action Act.

44. It is my considered view that it was absolutely necessary for the petitioner to comply with Section 6(1) of the Fair Administrative Action Act prior to instituting these proceedings for review or appeal of the decision of 1st Respondent, if any.

45. As it stands, there is no decision before the court to be reviewed. Failing to take advantage of the provisions of Section 6 (1) of the Fair Administrative Action Act prior to filing these proceedings was fatal to the Petitioner’s case as presently, there is nothing placed before the court to challenge; there is no decision for review or appeal before the court, not even under Section 57 (1) and (2) of the Kenya Citizenship and Immigration Act.

46. Finally, having found that this is a matter that was an administrative decision where the provisions of the Fair Administrative Action Act applied; I must agree with the Respondent/Applicant Counsel that the proper manner of lodging the dispute in court was not by way of a constitutional petition but judicial review as provided for under Section 9 (1) of the Fair Administrative Action Act.

47. The upshot is that the preliminary objection is upheld. The petition is accordingly struck out with costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2023. …………………………L N MUGAMBIJUDGE