[2006] KEHC 43 (KLR)
The court found that the applicant had established a prima facie case that the Principal Immigration Officer had unreasonably and inordinately withheld a decision on his application to renew his entry permit, contrary to the requirements of Section 5 of the Immigration Act. The court further held that, in the...
Source-derived case information.
- Citation
- [2006] KEHC 43 (KLR)
- Parties
- Applicant: Rehan Riaz Malik; Respondent: Principal Immigration Officer
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 1046 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave and Stay
- Outcome
- Leave granted to apply for judicial review; leave to operate as a stay against deportation.
- Legal Topics
- Judicial Review, Immigration Permits, Leave to Apply, Stay of Deportation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rehan Riaz Malik
Applicant
Principal Immigration Officer
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave and Stay
Legal Issues
- 1 Whether the applicant has established a prima facie case for leave to apply for judicial review orders against the Principal Immigration Officer.
- 2 Whether leave should operate as a stay to prevent the applicant's deportation pending determination of the substantive application.
Ratio Decidendi
The court found that the applicant had established a prima facie case that the Principal Immigration Officer had unreasonably and inordinately withheld a decision on his application to renew his entry permit, contrary to the requirements of Section 5 of the Immigration Act. The court further held that, in the circumstances, it was necessary to preserve the status quo by granting leave to apply for judicial review and directing that such leave operate as a stay, thereby preventing the applicant's removal or deportation from Kenya pending the hearing and determination of the substantive application. This approach ensures that the applicant is not prejudiced by executive action before the...
Court Disposition
Leave granted to apply for judicial review; leave to operate as a stay against deportation.
Orders
- The applicant is granted leave of 21 days to file the substantive application for judicial review orders.
- Leave shall operate as a stay to the extent that the applicant should not be removed or deported from Kenya pending the hearing and determination of the substantive application.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc. Appli. 1046 of 2006
REPUBLIC
VERSUS
THE PRINCIPAL IMMIGRATION OFFICER………….….RESPONDENT
EX-PARTE
REHAN RIAZ MALIK ………………………….…..…………...APPLICANT
RULING
Pursuant to the provisions of Order LIII Rule 1 of the Civil Procedure Rules, Rehan Riaz Malik applied for leave to apply for judicial review orders in the nature of Certiorari, prohibition and mandamus to be directed at the Principal Immigration Officer for interalia failing to renew the applicant’s entry permit. The applicant also sought for an order directing leave to operate as a stay.
When the exparte application came up for hearing Mr. Ambwere who appeared for the applicant informed this court that he was entirely relying on the pleadings and dispositions filed in support of the application. I have considered the grounds set out in the Chamber summons and the facts set out in the statutory statement. I have also perused the verifying and supporting affidavits sworn by Rehan Riaz Malik
The facts leading to the filing of this application appear to be short and straightforward. It is evident that the applicant is a director and shareholder to Bolpak Motors Limited, a Limited Liability incorporated in Kenya dealing with reconditioned Japanese Motor Vehicles in Kenya. The applicant is a Pakistan Citizen doing such business in Kenya. The pleadings shows that he was issued with class H Entry Permit for a period of 2 years on 1st March 2001. It is the submission of the applicant that upon the lapse of the aforesaid entry permit he has made several applications for renewal of the same but the Respondent has not made any decision on his application. The last application he presented to the Principal Immigration Officer is dated 29. 4.2006. The Respondent has yet to respond to that. The applicant now complains that Police Officers and Officers from the Immigration Department have made several visits to his business premises with threats to deport him. It is his argument that he would be able to convince this court that the Respondent has unreasonably withheld his decision on the matter. The applicant now seeks for a preservative order of stay of any deportation decision pending the hearing and determination of the intended application.
I have considered the application and I am satisfied that the applicant has shown he has a prima facie case in that he is likely to prove in the main application that the Respondent has inordinately and unreasonably withheld his decision on the application to renew the Entry permit as required under Section 5 of the Immigration Act chapter 172 Laws of Kenya. I am further satisfied that an order Preserving the Status Quo pending the hearing and determination of the intended substantive application is necessary.
In the end the applicant is given leave of 21 days to file the substantive application for judicial review orders as proposed in the exparte chamber summons. I also direct that leave do operate as a stay to the extent that the applicant should not be removed or deported from Kenya pending the hearing and determination of the substantive application.
Dated and delivered at Mombasa this 11th day of December 2006.
J.K. SERGON
J U D G E