Republic v Director General, Directorate of Immigration Services & 4 others; Vithalbhai (Ex parte) (Judicial Review Application E036 of 2024) [2026] KEHC 11271 (KLR) (24 July 2026) (Judgment)

Republic v Director General, Directorate of Immigration Services & 4 others; Vithalbhai (Ex parte) (Judicial Review Application E036 of 2024) [2026] KEHC 11271 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11271 (KLR) Republic of Kenya In the High Court at Mombasa Judicial Review Application E036 of 2024 J Ngaah, J July 24, 2026 Between Republic Applicant and The Director General, Directorate of Immigration Services 1st Respondent Cabinet Secretary, Ministry of Interior and Coordination of National Government 2nd Respondent and Ratilal Shah 1st Interested Party Dinesh Parmar 2nd Interested Party Hindu Union, Mombasa 3rd Interested Party and Dave Babulal Vithalbhai Ex parte Judgment 1.By a notice of motion dated 15 November 2024, filed pursuant to leave granted on 11 November 2024, the ex parte applicant has moved this Honourable Court under Articles 10, 22, 23, 25(c), 39(3), 47 and 50(1) of the Constitution; sections 8 and 9 of the Law Reform Act, chapter 26 of the Laws of Kenya; sections 3, 4, 7, 8, 9, 10, 11 and 12 of the Fair Administrative Action Act, No. 4 of 2015; section 57 of the Kenya Citizenship and Immigration Act, No. 12 of 2011; section 22 of the Kenya Citizens and Foreign Nationals Management Service Act, 2011; and Order 53 of the Civil Procedure Rules, for the following orders:(a)The Court be pleased to grant an order of certiorari under Articles 23(3)(f) and 47(3) of the Constitution and section 11 of the Fair Administrative Action Act to bring to this Court and quash the decision purportedly made by the 1st Respondent on 24.10.2023 and communicated to the Exparte Applicant's advocates by letter dated 8.11.2024.(b)The 2nd Respondent be prohibited from removing the Exparte Applicant from Kenya.(c)The Court be pleased to exercise jurisdiction under Article 23(3)(a) of the Constitution to declare that the 2nd Interested Party was not a trustee of the 3rd Interested Party in October, 2023 and that he and the 1st Interested Party had no capacity to purport to terminate the services of the Exparte Applicant.(d)The Court be pleased to make a declaration under Article 23(3)(a) of the Constitution that the letter by the 1st and 2nd Interested Parties dated 9.10.2023 was malicious, fraudulent and null and void.(e)The Court be pleased to declare that the 1st Respondent should have reversed the decision allegedly made on 24.10.2023 after the 3rd Interested Party disowned the letter written by the 1st and 2nd Interested Parties dated 9.10.2023.(f)The costs of this application and of the proceedings for leave be provided for. 2.The motion is supported by the statutory statement dated 9 November 2024 and the verifying affidavit sworn by the applicant on the same date, both filed with the chamber summons for leave, and by a supplementary affidavit sworn on 11 November 2024 by learned counsel for the applicant, Mr. F. Kinyua Kamundi, by which legible copies of the annexures to the verifying affidavit, together with two letters dated 8 November 2024 and 9 November 2024 omitted from the initial filing, were placed on the record. The applicant's case 3.The applicant is a citizen of India. He is employed by the Hindu Union, Mombasa, the 3rd interested party, as a priest at the Union's Shivaalay (Lord Shiva) Temple, Mombasa. He is the holder of a Class I work permit, No. 133215, endorsed for approved religious or charitable activities which, according to the e-permit exhibited, took effect on 7 March 2022 and was to run until 7 March 2025. He also holds Foreigner Certificate No. 10173907. 4.On 9 October 2023 the 1st and 2nd interested parties addressed a letter to the applicant, headed “without prejudice”, purporting to terminate his services with immediate effect for what was described as gross misconduct and failure to follow the rules and regulations of the Hindu Union. The letter required the applicant to vacate the Union's premises forthwith and to surrender his work permit, and it was copied to, among others, the Department of Immigration at Nairobi and at Mombasa. The applicant's case is that the authors of that letter had no authority to speak for his employer: the power to engage and terminate the Union's priests is vested by Article 15 of the Union's Constitution, Rules and Regulations of 1928 in its Management Committee, and the 2nd interested party had, on the applicant's account, resigned as a trustee of the Union on 21 September 2022 with immediate effect. The 1st interested party has, in an affidavit filed late in these proceedings, sworn to a contrary account of the Union's affairs, to which I shall return in due course. 5.On 30 October 2023 officers of the Directorate of Immigration Services at Mombasa, acting on the letter of 9 October 2023, seized the applicant's Indian passport, No. U8215045, and directed him to procure an air ticket to India within one week. On 8 November 2023 two trustees of the Union, Dr. Madhusudan Patel and Mr. Kamal Anantroy Bhatt, wrote to the Director of Immigration Services disowning the letter of 9 October 2023 as a forgery written without the Union's authority and asking that the applicant's work permit be restored. On 20 November 2023 the applicant's advocates demanded the release of the passport, and on 24 November 2023 it was released to the applicant's advocate with the work permit still endorsed on it, bearing no endorsement of cancellation. On the same date the trustees wrote to the applicant re-affirming his employment and copied the letter to the Director General with a request that he confirm in writing that the work permit remained valid. No response was received. 6.Matters rested there for close to ten months. On 11 September 2024 the 1st respondent issued a summons under section 49(8) of the Kenya Citizenship and Immigration Act, cap.170, requiring the applicant to report to Nyayo House, Nairobi, on 13 September 2024 with his original passport, work permit and foreigner certificate. His advocates responded by a letter dated 20 September 2024 recounting the events of 2023 and asking that the matter be confirmed closed or referred to the regional office at Mombasa. The reply came by a letter dated 8 November 2024, written for the Director General, informing the advocates that the applicant's work permit “was cancelled on 24th October 2023 upon instructions issued to us by his employer; the Hindu Union Mombasa” and advising that the applicant avail his passport to the immigration office in Mombasa “for purposes of regularizing his immigration status.” 7.What the applicant then did lies at the heart of this judgment, and it is best captured in his own words. In paragraph 13 of his verifying affidavit sworn on 9 November 2024 he deposed:“I appealed to the 2nd Respondent on 9.11.2024 against the decision purportedly made by the 1st Respondent on 24.10.2023 and communicated on 8.11.2024. The 3rd Interested Party supports the appeal. There is no necessity under Section 57 of the Citizenship and Immigration Act to first appeal to the Cabinet Secretary before seeking redress from the High Court." 8.The appeal referred to is on the record: it is a letter of 9 November 2024 by the applicant's advocates addressed to the Cabinet Secretary, expressed to be made under section 22(1) of the Kenya Citizens and Foreign Nationals Management Service Act, setting out eleven grounds on which the decision of the Director General was said to be unlawful and asking the Cabinet Secretary to review it and to withhold any action under section 43 of the Kenya Citizenship and Immigration Act pending its determination. It was supported by a letter of even date from the Union signed by its trustee, Mr. Kamal Bhatt, confirming that the applicant remained in the Union's employment and asking that the decision be reversed. On the following day, 10 November 2024, the applicant filed the chamber summons by which he sought leave to institute these proceedings, together with, among other prayers, a prayer that the court “be pleased to exercise jurisdiction under Section 9(4) of the Fair Administrative Actions Act to exempt the Exparte Applicant from the obligation to exhaust any remedy under Section 22(1) and 23(4) of the Kenya Citizens and Foreign Nationals Management Service Act.” Leave was granted on 11 November 2024 and the present motion followed. 9.The grounds on which the motion is prosecuted may be shortly stated: that the decision to cancel the work permit was made without notice, hearing or reasons, contrary to Article 47 of the Constitution and section 4 of the Fair Administrative Action Act; that it was procured by a letter written without the employer's authority and disowned by the employer; that it was not in truth made on 24 October 2023 but on or about 8 November 2024 and backdated; and that the 1st respondent wrongfully failed to revisit it after the Union disowned the letter on which it was founded. On the question of exhaustion, the applicant contends that the Appeals Tribunal contemplated by section 23 of the Kenya Citizens and Foreign Nationals Management Service Act has never been established; that it would take time before the 2nd respondent heard and determined the appeal, if he has power to do so; that section 57(1) of the Kenya Citizenship and Immigration Act grants him direct access to the High Court; and that unless the orders sought are granted he would be removed from Kenya under section 43 of that Act. Responses to the application 10.The respondents opposed the motion by a replying affidavit sworn on 25 January 2025 by Mr. Ronnie Akedi, an Assistant Director of Immigration Services within the Compliance and Enforcement Division of the Directorate. He deposes, in summary, that the applicant's work permit was cancelled on 24 October 2023 upon the letter of 9 October 2023, before the Directorate received the Union's contradictory letter; that termination of employment by an employer automatically leads to cancellation of a work permit; that the cancellation was digitally updated and available to the applicant in his electronic foreign nationals' management portal; that investigations into the giving of false information to an immigration officer, contrary to section 53 of the Kenya Citizenship and Immigration Act, remain ongoing; that no deportation order has ever been made, so that the applicant's fear of removal is subjective, unfounded and premature; that no appeal has been received by either respondent, and that all letters addressed to the 2nd respondent are duly received and acknowledged through execution; that the matter is at bottom an internal leadership wrangle within the Union; and that the application is premature, ill-advised and bad in law since it pre-empts administrative action without any formal or final decision. He prays that the application be dismissed with costs. 11.In their written submissions dated 1 December 2025, drawn by Penda P.M., learned Senior State Counsel, for the Honourable Attorney General, the respondents submit, among other things, that the applicant did not adhere to the doctrine of exhaustion: that the cancellation was appealable to the Cabinet Secretary, whose decision is in turn subject to recourse to the High Court under section 57(2) of the Kenya Citizenship and Immigration Act; that the applicant could have appeared before the permit determination committee or at the least appealed to the Cabinet Secretary before filing the judicial review application; and that he moved this court prematurely. They rely on Geoffrey Muthinja & Another v Sammy Muguna Henry & 1756 Others [2015] eKLR and William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR. 12.The 1st interested party opposed the motion by a replying affidavit sworn by Mr. Ratilal Shah on 13 January 2026 and filed on 17 February 2026, supported by written submissions dated 12 March 2026. He contests the applicant's account of the Union's affairs root and branch, deposing that the 2nd interested party's resignation was never ratified and so never took effect, that he and the 2nd interested party are the Union's only duly elected trustees, and that the termination of the applicant's services was a considered and lawful decision of the Union, and he raises, in addition, objections that the application is time-barred, that it has been overtaken by the expiry of the permit on 7 March 2025 and is moot, and that the declarations sought in prayers (c) and (d) raise materially disputed facts which, on the authority of Saisi & 7 Others v Director of Public Prosecutions & 2 Others [2023] KESC 6 (KLR), a judicial review court is ill-placed to resolve. The 2nd interested party filed no response and took no part in the proceedings. The 3rd interested party filed nothing; its letters on the record support the applicant. The applicant's own written submissions are dated 8 November 2025 and therefore preceded the 1st interested party's papers. Issues for determination 13.The pleadings, affidavits and submissions raise a number of issues: whether the application offends the doctrine of exhaustion of remedies; whether it was brought in time; whether there exists administrative action amenable to review; whether the grounds of review are established; whether the declarations in prayers (c) and (d) are maintainable in judicial review proceedings; and whether the application has been overtaken by events. The first of these is, however, logically anterior to all the others, because the doctrine of exhaustion, as codified in section 9 of the Fair Administrative Action Act, conditions the very competence of the proceedings. If it is answered against the applicant, the remaining issues do not fall for determination. For the reasons that follow, I have come to the conclusion that it must be answered against the applicant, and I shall therefore confine this judgment to that issue. The statutory scheme and the doctrine of exhaustion 14.The starting point is the architecture of the statutes under which the impugned decision was made. The power over work permits is exercised by the Director General under the Kenya Citizenship and Immigration Act. A person aggrieved by a decision of the Director General made pursuant to that Act is given a remedy by section 22(1) of the Kenya Citizens and Foreign Nationals Management Service Act, namely, an application to the Cabinet Secretary for review of the decision; section 23 of the same Act contemplates a further avenue of appeal to the Kenya Citizenship and Immigration Service Appeals Tribunal, and the respondents point, in the same vein, to the appellate recourse to the Cabinet Secretary under section 40 of the Kenya Citizenship and Immigration Act. At the apex sits this court: section 57(2) of the Kenya Citizenship and Immigration Act provides that –"An appeal against the decisions of the Cabinet Secretary or of the Service under this Act may be made to the High Court." 15.The scheme is thus deliberate and hierarchical: the Director General decides; the Cabinet Secretary reviews; and this court is reached, at the end of that process, in the manner the statute itself prescribes, by way of an appeal. It is upon that scheme that section 9 of the Fair Administrative Action Act operates. The section provides:"(1)Subject to subsection (2), a person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to— (a) a court in accordance with section 8; or (b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.(2)The High Court or a subordinate court under subsection (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.(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice." 16.The language of subsections (2) and (3) is peremptory. The court “shall not review” an administrative action unless the available mechanisms of appeal or review are first exhausted, and where it is not satisfied that they have been, it “shall” direct the applicant first to exhaust them. The only gateway out of that command is subsection (4), and it is a narrow one: the court “may”, “in exceptional circumstances”, and “on application by the applicant”, grant an exemption where the interest of justice so requires. Each of those elements matters, and I shall return to them. 17.The doctrine which section 9 codifies is of long standing. In Speaker of the National Assembly v James Njenga Karume [1992] eKLR the Court of Appeal stated:“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed." 18.In Geoffrey Muthinja (supra) the Court of Appeal restated the principle in terms that have since become canonical:“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... The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts." 19.And in William Odhiambo Ramogi (supra), the five-judge bench of this court, sitting at Mombasa, explained:“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts." 20.Finally, because the objection goes to the competence of the proceedings, the consequence of upholding it is that prescribed by the Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, in the celebrated words of Nyarangi, JA:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." Whether the doctrine bars this application 21.Against that background, the decisive fact in this application is one to which the applicant himself has sworn. By paragraph 13 of his verifying affidavit, reproduced earlier in this judgment, the applicant deposed that on 9 November 2024, the day after the cancellation of his permit was communicated to his advocates, and the day before he filed the chamber summons for leave, he appealed to the 2nd respondent, the Cabinet Secretary, against the very decision he asks this court to quash. 22.The appeal is on the record; it invokes section 22(1) of the Kenya Citizens and Foreign Nationals Management Service Act; it sets out, over eleven grounds, substantially the same complaints now urged before me which are the want of a hearing, the backdating, the forged provenance of the instructions, the disregard of the Union's letters; it asks the Cabinet Secretary to review and reverse the decision and to withhold any action under section 43 in the meantime; and it enjoyed, then as now, the support of the applicant's employer. The applicant, in other words, did not merely have an alternative remedy available to him. He invoked it. He set the statutory machinery of review in motion, placed before the appointed reviewer the whole of his case, and then, the very next day, came to this court asking it to decide that selfsame case. 23.Two consequences follow, and each is fatal to the motion. The first concerns the subject matter of judicial review. Once the applicant applied to the Cabinet Secretary for review of the Director General's decision, that decision stood referred to the Cabinet Secretary; the administrative process was no longer complete, and the decision of the Director General ceased to be the terminus of that process. If the applicant appealed, as he has sworn, then the decision that ought to be the subject of judicial review proceedings is the decision of the Cabinet Secretary upon that appeal, not the decision of the 1st respondent. And if, as has turned out to be the case, the Cabinet Secretary did not respond to the appeal at all, that too is no warrant for bypassing him: a failure or refusal by a public officer to make a decision he is bound to make is itself amenable to judicial review, and the officer can be compelled, by an order of mandamus, to make a decision one way or the other. The nature and office of that remedy were described by the Court of Appeal in Republic v Kenya National Examinations Council ex parte Geoffrey Gathenji Njoroge & 9 Others, Civil Appeal No. 266 of 1996 [1997] eKLR:“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... The order must command no more than the party against whom the application is made is legally bound to perform." 24.The applicant's remedy for the Cabinet Secretary's inaction, in other words, lay in compelling the Cabinet Secretary to determine the appeal, not in inviting this court to determine it for him. Yet no such order is sought in the motion before me; the Cabinet Secretary, though joined as the 2nd respondent, is asked to do nothing except suffer an order of prohibition. To grant the orders of certiorari and prohibition now sought would be to pre-empt, and to render entirely nugatory, the very process of review which the applicant himself set in motion; it would have this court and the Cabinet Secretary seized, simultaneously, of one and the same complaint, with the attendant risk of conflicting outcomes that the exhaustion doctrine exists to prevent. A litigant cannot ride both horses. Having elected to pursue the statutory review, an election made deliberately, on legal advice, and with his employer's support, the applicant was bound to see it through, or to procure its determination by lawful compulsion, before invoking the supervisory jurisdiction of this court. 25.There is a further dimension to this first consequence, and it defines what may lawfully happen even after the statutory remedy is exhausted. Section 57(2) of the Kenya Citizenship and Immigration Act does not merely identify this court as the ultimate destination of a grievance arising under the Act; it prescribes the mode by which the court is to be approached. According to the Act, a person dissatisfied with the decision of the Cabinet Secretary – or with the decision of the Appeals Tribunal contemplated by section 23 of the Kenya Citizens and Foreign Nationals Management Service Act, assuming that tribunal were in place – can approach this court only by way of an appeal. An appeal is a different creature from judicial review. On an appeal the court is seized of the merits of the decision, which it re-examines and may reverse or vary; on judicial review the court is confined to the process by which the decision was reached – the very distinction drawn by the Court of Appeal in Municipal Council of Mombasa v Republic & Umoja Consultants Ltd, Civil Appeal No. 185 of 2001 [2002] eKLR, where it was emphasised that judicial review is concerned with the decision-making process and not with the merits of the decision itself, and re-affirmed by the Supreme Court in Saisi & 7 Others v Director of Public Prosecutions & 2 Others, Petition 39 & 40 of 2019 (Consolidated) [2023] KESC 6 (KLR), in these terms:“...it is the court's firm view that the intention was never to transform judicial review into a full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say so for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case... the merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced." 26.The design of the statute is therefore complete in itself: a decision by the Director General; review of that decision by the Cabinet Secretary; and thereafter an appeal, not judicial review, to this court. A litigant cannot, by recasting his dissatisfaction with the outcome as a complaint about process, convert into judicial review what Parliament has ordained shall come to this court as an appeal; to permit it would be to circumvent both the sequence and the mode of redress that the legislature designed, which is the very vice against which the Karume case (supra) warns. 27.I am alive to the gravity of the applicant's complaints. A permit holder who first learns, a year after the fact, that his permit was cancelled; who was neither notified nor heard; whose employer disowned the instructions on which the decision was said to rest; and who was met with silence when he asked, through his employer and his advocates, for written confirmation of his status, has grievances of real substance. Nothing in this judgment belittles them, and nothing in this judgment determines them, in either direction. But grievances of substance must still be pressed in the forum the statute appoints, in the sequence the statute commands. As the Court of Appeal said in Geoffrey Muthinja (supra), the courts are fora of last resort; and as section 9(3) directs, where the statutory remedy is unexhausted the duty of this court is not to plunge into the merits but to send the parties back to that remedy. The applicant placed his case before the Cabinet Secretary on 9 November 2024. It is there that it must, in the first instance, be decided; and if the Cabinet Secretary will not decide it, the coercive powers of this court remain available, in properly constituted proceedings, to compel him to do so, one way or the other. Once he has decided, the recourse of a person dissatisfied with that decision is the one the statute prescribes: an appeal to this court under section 57(2) of the Kenya Citizenship and Immigration Act. 28.In the result, and guided by Lillian S (supra), the point at which this court must down its tools has been reached. The applicant’s application is hereby struck out on grounds that it is misconceived and an abuse of the due process. 29.On costs, the discretion under section 27 of the Civil Procedure Act falls to be exercised with the whole of the record in view. The application has failed, but on a threshold ground; the merits remain undetermined; and the scramble to this court was, in no small measure, precipitated by the manner in which the impugned decision was communicated – a year and more after the date it bears, in the face of unanswered correspondence – and by the 2nd respondent's failure, to date, to acknowledge or determine the appeal placed before him. In those circumstances it would not be just to condemn the applicant in costs, nor has he earned them. The fair order, and the one I make, is that each party shall bear its own costs of the application and of the proceedings for leave. 30.It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA ON 24 JULY 2026NGAAH JAIRUSJUDGE