Mwau v Principal Immigration Officer

High Court, at Nairobi

December 8, 1983

Simpson CJ, Sachdeva & Gachuhi JJ

Miscellaneous Civil Case No 299 of 1983

Judicial Review – mandamus – order of – against executive officers of government – when order will not be issued – where officer is an inferior or ministerial officer bound by orders of a competent authority – where officer is not persona designata – whether such officer may be compelled to do something which is his duty in that capacity.

Immigration law – passport – definition of – issue and withdrawal of passport – whether a prerogative of the President – Principal Immigration Officer withdrawing passport without giving reasons-whether Officer under statutory or legal duty to issue and return passports – whether mandamus may issue to compel Officer to return passport – Immigration Act (cap 172) section 10(2).

President – prerogatives of – issue, withdrawal and return of passports – whether a prerogative of the President – whether mandamus may issue to compel Principal Immigration Officer to return withdrawn passport - Immigration Act (cap 172) section 10(2).

Passports - see Immigration law.

The applicant, a citizen of Kenya by birth and the bearer of a Kenyan passport, on February 25, 1983 had his passport withdrawn by the Assistant Immigration Officer who was acting on behalf of the respondent. When the applicant wrote to the respondent demanding the return of his passport in order for him to leave Kenya on a business trip, the respondent replied to him that the reasons for the withdrawal of his passport were well-known to him and that the passport would remain withdrawn until further notice.

The applicant, after obtaining leave to do so, filed an application for an order of mandamus to direct the respondent to return his passport.

Held:

1. In Kenya, a passport is a document issued in the name of the President on the responsibility of a Passport Officer to a named individual intended to be presented to the governments of foreign nations and to be used for the individual’s protection as a Kenyan citizen in foreign countries, and it depends for its validity upon the fact that the Government in an official document vouches the respectability of the person named, it is not a document issued for the purpose of enabling a citizen to leave or enter Kenya although in practice it coincidentally fulfils that function.  

2. In the absence of any statutory provision regulating the issue of passports, the issue and withdrawal of passports is the prerogative of the President. It is a matter entirely within the discretion of the Minister subject to the directions of the President and being purely in the exercise of the Presidential prerogative, it is not subject to judicial review.

3. The order of mandamus will not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority, to compel him to do something which is part of his duty in that capacity. The courts are reluctant to issue a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted.

4. There is no statutory or legal duty laid upon the Principal Immigration Officer as persona designate to issue or return passports and in the performance of such non-statutory functions, he acts in accordance with instructions of the Minister under section 10(2) of the Immigration Act (cap 172). An order of mandamus does not therefore lie to compel him to return the applicant’s passport.

Application for mandamus refused.

Cases

1. Shah v Attorney-General of Uganda (No 3) 1976 EA 543

2. Rex v Brailsford & Another (1905) 2 KBD 730

3. Republic v Director General of East African Railways Corporation ex parte Kaggwa 1977 KLR 194

Texts

1. De Smith, S.A. Constitutional and Administrative Law

2. De Smith, S.A. et al (1968) Judicial Review of Administrative Action 2nd Edn p 462

3. Hailsham, Lord et al. (Eds) (1975) Halsbury’s Laws of England London: Butterworths 4th Edn p 127

4. Pram’s Law of Writs in India, England and America 2nd Edn p 385

Statutes

1. Constitution of Kenya section 81(1), (3)

2. Immigration Act (cap 172)

Advocates

Mwau v Principal Immigration Officer

High Court, at Nairobi

December 8, 1983

Simpson CJ, Sachdeva & Gachuhi JJ

Miscellaneous Civil Case No 299 of 1983

Judicial Review – mandamus – order of – against executive officers of government – when order will not be issued – where officer is an inferior or ministerial officer bound by orders of a competent authority – where officer is not persona designata – whether such officer may be compelled to do something which is his duty in that capacity.

Immigration law – passport – definition of – issue and withdrawal of passport – whether a prerogative of the President – Principal Immigration Officer withdrawing passport without giving reasons-whether Officer under statutory or legal duty to issue and return passports – whether mandamus may issue to compel Officer to return passport – Immigration Act (cap 172) section 10(2).

President – prerogatives of – issue, withdrawal and return of passports – whether a prerogative of the President – whether mandamus may issue to compel Principal Immigration Officer to return withdrawn passport - Immigration Act (cap 172) section 10(2).

Passports - see Immigration law.

The applicant, a citizen of Kenya by birth and the bearer of a Kenyan passport, on February 25, 1983 had his passport withdrawn by the Assistant Immigration Officer who was acting on behalf of the respondent. When the applicant wrote to the respondent demanding the return of his passport in order for him to leave Kenya on a business trip, the respondent replied to him that the reasons for the withdrawal of his passport were well-known to him and that the passport would remain withdrawn until further notice.

The applicant, after obtaining leave to do so, filed an application for an order of mandamus to direct the respondent to return his passport.

Held:

1. In Kenya, a passport is a document issued in the name of the President on the responsibility of a Passport Officer to a named individual intended to be presented to the governments of foreign nations and to be used for the individual’s protection as a Kenyan citizen in foreign countries, and it depends for its validity upon the fact that the Government in an official document vouches the respectability of the person named, it is not a document issued for the purpose of enabling a citizen to leave or enter Kenya although in practice it coincidentally fulfils that function.  

2. In the absence of any statutory provision regulating the issue of passports, the issue and withdrawal of passports is the prerogative of the President. It is a matter entirely within the discretion of the Minister subject to the directions of the President and being purely in the exercise of the Presidential prerogative, it is not subject to judicial review.

3. The order of mandamus will not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority, to compel him to do something which is part of his duty in that capacity. The courts are reluctant to issue a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted.

4. There is no statutory or legal duty laid upon the Principal Immigration Officer as persona designate to issue or return passports and in the performance of such non-statutory functions, he acts in accordance with instructions of the Minister under section 10(2) of the Immigration Act (cap 172). An order of mandamus does not therefore lie to compel him to return the applicant’s passport.

Application for mandamus refused.

Cases

1. Shah v Attorney-General of Uganda (No 3) 1976 EA 543

2. Rex v Brailsford & Another (1905) 2 KBD 730

3. Republic v Director General of East African Railways Corporation ex parte Kaggwa 1977 KLR 194

Texts

1. De Smith, S.A. Constitutional and Administrative Law

2. De Smith, S.A. et al (1968) Judicial Review of Administrative Action 2nd Edn p 462

3. Hailsham, Lord et al. (Eds) (1975) Halsbury’s Laws of England London: Butterworths 4th Edn p 127

4. Pram’s Law of Writs in India, England and America 2nd Edn p 385

Statutes

1. Constitution of Kenya section 81(1), (3)

2. Immigration Act (cap 172)

Advocates

Mr. Kinyanjui, with Mr. Wambeu for the applicant

Griffin v Republic

High Court, at Nairobi March 26, 1981

Hancox & Gachuhi JJ

Criminal Appeal No 185 of 1981

Plea of guilty - deprivation of freedom of choice in pleading guilty - induced by a plea bargain for leniency – subsequent custodial sentence allegedly not sufficiently lenient.

Sentencing - appeal against sentence - sentence manifestly harsh and severe - factors to be considered when sentencing.

Criminal Law - assault occasioning actual bodily harm – blow by appellant not the ultimate cause of the injury – injury occasioned by hard object on which the complainant fell as a result of blow.

The appellant a first offender, pleaded guilty to a charge of assault, occasioning actual bodily harm and was sentenced to eighteen months imprisonment and ten strokes. He now appeals against the sentence only, on the grounds that: it is manifestly excessive, it took into account extraneous matters, the plea of guilty was induced upon him with a promise of leniency and corporal punishment was an inappropriate sentence.

Held :

1. The mere fact that the magistrate participated in the plea bargain discussions is not enough to prove that the appellant was deprived of his freedom of choice in pleading guilty. Participation by the magistrate although frowned upon cannot be completely avoided. The guiding factor would be the court records which in this case, has no evidence or suggestion that the appellant was deprived of his freedom of choice.

2. The court of appeal cannot interfere with the sentence solely on the ground that it was heavy, unless, it was also manifestly excessive. In sentencing the court must exercise its discretion depending on the circumstances of the case.

3. The custodial sentence is appropriate but 18 months is too severe and it is reduced to twelve months, but corporal punishment was in fact inappropriate.

Appeal succeeded to a limited extent.

Cases

1. Ogola Owuora v Republic [1954] 21 EACA 270

2. Nilson v Republic [1970] EA 599.

3. Lebiringin v Republic [1974] EA

4. Mohamedali v Republic 15 EACA 126

5. Wanjema v Republic [1971] EA at page 494D

6. Republic v Turner [1970] 2 All ER 281 at 285

7. Republic v Atkinson [1978] 2 All ER at page 462

8. Republic v Coward [1979] Law Gazette of November 14

9. Republic v Winterflood LG 29.11.78

Statutes

Penal Code (Cap 63) Section 251

Advocates

RO Kwach for Appellant

B Chunga for Respondent