[2015] KEHC 1235 (KLR)
The court found that the petitioner was unable to comply with the original order to regularize his stay within three months due to procedural delays in retrieving necessary documents, including his passport and surety documents. There was no objection from the respondents, and no strong public interest reasons were...
Source-derived case information.
- Citation
- [2015] KEHC 1235 (KLR)
- Parties
- Petitioner: Sievers Udo; Respondent: The Director of Public Prosecutions; Respondent: The Director of Immigration Services; Respondent: The Resident Magistrate Court at Nairobi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 91 of 2014
- Procedural Posture
- Constitutional Petition / Ruling on Application for Enlargement of Time
- Outcome
- Application for enlargement of time granted.
- Judges
- GO Shikwe
- Legal Topics
- Immigration Status, Enlargement of Time, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sievers Udo
Petitioner
The Director of Public Prosecutions
Respondent
The Director of Immigration Services
Respondent
The Resident Magistrate Court at Nairobi
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Enlargement of Time
Legal Issues
- 1 Whether the petitioner should be granted an enlargement of time to regularize his immigration status in Kenya.
- 2 Whether the status quo should be maintained to prevent the petitioner's arrest or deportation pending regularization.
Ratio Decidendi
The court found that the petitioner was unable to comply with the original order to regularize his stay within three months due to procedural delays in retrieving necessary documents, including his passport and surety documents. There was no objection from the respondents, and no strong public interest reasons were advanced to deny the application. The court exercised its discretion to enlarge the time for compliance, finding that the application had merit and that maintaining the status quo was appropriate to prevent prejudice to the petitioner.
Court Disposition
Application for enlargement of time granted.
Orders
- Time within which the petitioner is to regularize his stay in Kenya is enlarged for a period of 90 days from the date of this ruling.
- The status quo is to be maintained; the petitioner shall not be arrested or deported by the 1st and 2nd respondents or their agents on account of his current immigration status during this period.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL PETITION NO. 91 OF 2014
SIEVERS UDO ….................................................................................................. PETITIONER
VERSUS
1. THE DIRECTOR OF PUBLIC PROSECUTIONS
2. THE DIRECTOR OF IMMIGRATION SERVICES
3. THE RESIDENT MAGISTRATE COURT AT NAIROBI........................... RESPONDENTS
RULING
The Notice of Motion application dated 17th March, 2015 and which is expressed to be brought under article 159 of the Constitution and rules 3 and 19 of the Constitution of Kenya (Protection of rights and fundamental Freedoms) practice and procedure rules 2013) seeks the following orders
Spent
That the Court be pleased to enlarge the time within which the petitioner should regularize his stay in the Country by a period of 90 days from the date when the petitioner receives his passport.
That the status quo be maintained. That is the petitioner should not be arrested and or deported by the 1st and 2nd Respondents servants or agents on account of his current Immigration status in the Country.
The grounds are that on the 18th day of February, 2014, this Court delivered a Judgment whereby proceedings in Nairobi Chief magistrate's Court Criminal case No. 204 of 2014 were declared null and void and the petitioner was ordered to regularize his stay in the country within three months from 18th December, 2014.
That upon issuance of the said order the petitioner commenced the procedure of following up with the release of surety bond of Ksh. 400,000/= and cash bail of Ksh. 100,000/= which were deposited in Nairobi Chief Magistrate Criminal case No. 204 of 2014 and also the issue of the release of the passport.
The process was not completed within the stipulated time.
Counsels for the Respondents did seek instructions to contest this application but when none were forth coming they did not putt in any papers in opposition.
In my ruling dated the 18th day of December, 2014 I did order the petitioner to regularize his stay in the country within three months from the date of Judgment. This was after the Court found the proceedings in Nairobi Chief Magistrates criminal Case No 204 of 2014 to have been in violation of article 49(i) (f) of the Constitution and declared them to have been null and void.
Subsequent to my ruling the petitioner had to seek the release of surety documents, cash bail and the passport. Its quite apparent that the process of retrieval of the said items did take some substantial amount of time leading to the expiry of the stipulated period of 90 days.
The petitioner herein seeks for the enlargement of time so as to enable him comply with the orders of this Court.
A perusal of the proceedings shows that there have been numerous mentions at the behest of the petitioner and in which counsels for the Respondents participated in. There appears to be no serious objection to this application by dint of the Respondents lack of instructions to their counsels to oppose it.
In conclusion therefore, there being no objection to the application for enlargement of time, and there being no strong public interest reasons to expel the petitioner who is a non national parent I find the application has merit.
Time within which the petitioner is to regularize his stay in the Country is enlarged for a period of 90 days (ninety) from the date of this ruling. The status quo to be maintained as prayed in the application.
Ruling delivered, dated and signed this 20th day of November, 2015.
….................
M. MUYA
JUDGE
20TH NOVEMBER, 2015
In open Court in the presence of:
Counsel for the Petitioner Mr. Gikandi
Counsel for the Respondents absent
Court Assistant Musundi
M. MUYA – JUDGE
20/11/2015