1.The petitioner, Aisha Hassan Moalim Mohamed, claims that she is a Kenyan citizen and holder of national identity card number 37XXX and Kenyan passport number AKXXX. Her parents Hassan Moalim Gabey and Nuno Abikar, both now deceased, were also Kenyan citizens. Her mother lived in Wajir and died on January 1, 2010. The petitioner spent a good time of her study time in Mogadishu, Somalia, where her studies were sponsored by well wishers. She now resides in South C, Nairobi. She is a medical doctor and her practicing licence was issued to her by the Kenya Medical Practitioners and Dentists Council on October 20, 2021 and is valid up to December 31, 2022.
2.In her petition dated January 12, 2022 and amended on 10.6.2022, the petitioner claims that in March 2021, the 1st and 3rd respondents, without justifiable cause, confiscated her identity card and passport. Again on December 1, 2021, the 1st and 3rd Respondents took away the petitioner’s academic certificates, namely University of Somalia (UNISO) Bachelor of Medicine & Surgery (MBBS) certificate, Secondary School Leaving Certificate Roll No 46XXX, and Recognition and Equation of Qualification (CUE/10/91/Vol 465). To date, the documents are yet to be returned to her. The withholding of the Petitioner’s identification and academic documents is curtailing the enjoyment of her rights and fundamental freedoms. Further the withholding of the said documents without disclosing the reasons amounts to a breach of the constitutional provision of fair administrative action under article 47 of the Constitution of Kenya, 2010.
3.The petitioner thus prayed for the following reliefs:
4.The petition is opposed by the respondents vide a replying affidavit sworn on March 2, 2022 by Christine Kinyua, a Senior Immigration Officer with the 1st Respondent. She averred that the petitioner was arrested by the security agency at the Jomo Kenyatta International Airport (JKIA) on February 18, 2021 upon her return from Somalia on suspicion of using Kenyan passport No AKXXX (the passport) and Kenyan identity card No 37XXX (the ID card) which were fraudulently acquired. The passport and the ID card were confiscated and handed over to the 1st respondent and the Director of Criminal Investigations (DCI). Following investigations, it was established that the petitioner is not a Kenyan but a Somali national who first arrived in Kenya on January 20, 2018 using Somali passport no P00680241. She later came back to Kenya on the same passport on September 17, 2018 and initiated the process of acquiring the ID card.
5.Investigations further revealed that the petitioner applied for and obtained a birth certificate for herself and death certificates for her parents on 16.11.18 and 21.11.19 respectively. Thereafter the petitioner applied for and obtained internship license from the Medical Practitioners and Dentists Board (the Board) and later, permanent registration as a medical or dental practitioner. It was further averred that Wajir Girls Secondary School has denied authenticity of the Petitioner’s documents from the school. To get her registration as a medical practitioner, the petitioner used her school leaving certificate from Imam Shafie Secondary in Mogadishu which indicated her mother’s name as Halima Mohamud while the birth certificate she used to get the passport indicated her mother’s name as Gabey Nuno Abikar.
6.When the petitioner appeared before the 1st respondent on December 1, 2021, upon being summoned, she was represented by a Ugandan advocate who was found to be working without a valid work permit. She was given time to appoint another advocate but instead filed the petition herein in an attempt to circumvent the law and avoid facing the full force of the law for her illegal actions. The 1st respondent contended that it acted in accordance with sections 31, 48, 53 and 54 of the Kenya Citizenship and Immigration Act and the confiscated documents cannot be released during the pendency of the ongoing investigations. The 1st respondent stated that the petition was premature, deceptive, sensational mala fides< vexatious and unmerited and urged the court to dismiss the same with costs.
7.In a rejoinder vide a further affidavit sworn on March 21, 2022, the petitioner reiterated her averments that she is a Kenyan citizen. She went to Somalia in 2000 and upon her return to Kenya in 2018 and having attained the age of majority, she obtained an identity card and passport after the relevant officers did due diligence. She stated that she and Gabey Nuno Abikar who is her foster mother have lived in Kenya since birth save for the time she went to Somalia to advance her studies. In Somalia, Halima Mohamed took her in as a guardian and that is why she appears in some documents. She contended that article 47 and the Fair Administrative Actions Act were not followed and she has not been informed why her documents were confiscated and the withholding of her documents with no indication as to the timelines of the purported investigation is an infringement of her constitutional rights.
8.Abdi Mohamed Ahmed in an affidavit sworn on March 18, 2022 stated that he was born in Wanjir and is a member of Peace Eastleigh Community Association and Eastleigh Nyumba Kumi; that he has known the petitioner, her foster parents and other family members for over 20 years and that they are Kenysn citizens; that the petitioner was raised by Gaby Nuno Abikar for over 15 years; that as a Kenyan citizen, the petitioner ought to enjoy all rights and freedoms as a Kenyan citizen. Another affidavit in support of the petition was sworn by Abdihakim Salat Ali who was born in Mandera but resides and works in Eastleigh, Nairobi. He stated that he has known the petitioner for over 3 years and that to the best of his knowledge she is a truthful and honest person; that he allowed her to stay with his family when the Sheikh at their mosque told him about her story and that they were convinced that it was not safe for the Petitioner to stay alone; that she told him that her parents died a long time ago and she had been surviving on people’s goodwill; that as a Kenyan citizen, the Petitioner ought to enjoy all rights and freedoms as a Kenyan citizen.
9.Parties filed their written submissions which I have duly considered together with the authorities cited. The issues that arise for determination are as follows:i.Whether the respondent violated the rights of the petitioner.ii.Whether the court can make a declaration that the petitioner is a Kenya Citizen.iii.Whether the respondents should be compelled to give information and/or forthwith return the petitioner’s documents.
Whether the Respondent violated the Petitioner’s rights
10.For the petitioner, it was submitted that the respondents have violated articles 10, 33 and 35 of the Constitution of Kenya, 2010 and sections 4, 9 and 21 of the Access to Information Act (AIA). She contended that her letter dated January 7, 2022 seeking information from the respondents, elicited no response no response thereby forcing her to file the present petition.
12.In any event, the AIA has very specific provisions for the procedure to be followed by a party seeking information held by a public officer. The AIA outlines the steps to be followed by such party should the application for information be rejected. The petitioner has not demonstrated that she has complied with the said provisions.
13.On the other violations, the petitioner submitted that the respondents’ actions of indefinitely withholding her vital documents are contrary to article 47 of the Constitution as read with the Fair Administrative Action Act, 2015 (FAAA). Further that the respondents’ actions are contrary to the national values and principles of governance in article 10(2) of the Constitution.
14.The respondents submitted that the petitioner has not adduced any evidence in support of the allegations of the violation of the right to fair administrative action. The respondents maintain that the petitioner obtained the documents in question fraudulently. The documents are being held following the Petitioner’s failure to honour summons to shed light on the matter of the documents. She has not demonstrated any steps to clear the discrepancy in the documents. Further that what she seeks is not a legal remedy as the same arises from an illegality.
15.Article 47 of the Constitution guarantees to every person fair administrative action as follows:
16.Parliament did enact the FAAA to give effect to article 47. Section 4 of the Act provides:
17.The right to fair administrative action cannot be gainsaid. This right encompasses action that is expeditious, efficient, lawful, reasonable and procedurally fair. Further, where a person’s right or fundamental freedom has been or is likely to be adversely affected by administrative action, such person must be given reason in writing for such action. This requirement ensures that administrative bodies discharge their mandate within constitutional and statutory confines.
20.The learned judgewent on to state:
21.In the present case, the citizenship of the petitioner is in question. The respondents contended that the petitioner initially came into the country using a Somali passport in 2018 and shortly thereafter, obtained the documents in question. Their summons to the petitioner to shed light on the matter has not been complied with. Instead, the petitioner has moved to this court seeking reliefs against the respondents.
22.Sections 31 of the Kenya Citizenship and Immigration Act stipulates the circumstances under which the 1st respondent may confiscate or suspend a passport or travel document. These include inter alia where the holder is involved in passport or document fraud, passport or document forgery or transnational crimes. The powers of the 1st respondent are set out in section 48 of the Act, which include inter alia the power to require any person seeking to enter Kenya to answer any question or to produce any document in his possession for the purpose of ascertaining whether that person is or is not a citizen of Kenya and, in the case of any person who is not a citizen of Kenya, for the purpose of determining whether that person should be permitted to enter Kenya under this Act.
23.Section 54 of the Act makes provision for offences relating to documents. The section provides in part as follows:
24.it is clear from their averments, that the respondents suspect that an offence may have been committed by the petitioner in obtaining the documents now in the respondents’ possession and are investigating the matter. To this end, they have summoned the petitioner to shed light on the matter of her documents for the purpose of their investigations but she has failed to honour the summons. This contention has not been rebutted by the petitioner and remains uncontroverted.
25.The question this court must ask is, whether a party can seek the protection of the law having disregarded and failed to comply with lawful summons.
27.I fully concur with the learned Judge. Having disregarded the lawful summons issued by the respondents, the petitioner cannot come to court seeking protection by the law.
28.The learned Judge went on to say:
29.I am in full agreement with the learned Judge and find that contrary to the allegations by the petitioner that her rights have been violated, it is the petitioner who has violated the Kenyan immigration laws by failing to present herself pursuant toi summons issued under the law. There is therefore no doubt in my mind, that acting as they did, the respondents have not violated the petitioners right to fair administrative action guaranteed under article 47 of the Constitution and their actions were warranted.
Whether the Court can make a Declaration that the Petitioner is a Kenya Citizen
30.It is the petitioner’s prayer that the court makes a finding and declaration that the petitioner is a Kenyan Citizen. The respondents contest the citizenship of the petitioner and insist that she is Somali. Their case is that the petitioner used her school leaving certificate from Imam Shafie Secondary in Mogadishu to get registration as a medical practitioner. That certificate indicated her mother’s name as Halima Mohamud. The birth certificate the petitioner used to get the passport, indicates her mother’s name as Gabey Nuno Abikar. This was not controverted by the petitioner. She however stated that Gabey Nuno Abikar is her foster mother with whom she lived in Kenya since birth, save for the time she went to Somalia to advance her studies. She further stated that when she went to Somalia, Halima Mohamed took her in as a guardian and that is why she appears in some documents.
31.Article 14 of the Constitution stipulates who a Kenyan citizen by birth is, as follows:
32.The petitioner does not state who her parents are nor did she place before the court any documents relating to her parents, including their identity cards and death certificates. Further, she has stated that the persons indicated in her documents as her mothers, are in fact her guardians. The scanty material placed before the court is inadequate to support her assertions. As such, this court is unable to make any finding or declaration in her favour. In any event the Petitioner must first present herself before the respondents for the purpose of furnishing such information, documents and other particulars as are necessary for the purposes of the required investigations and for a determination as to her citizenship and whether the documents in question were obtained lawfully.
Whether the Respondents should be compelled to forthwith return the Petitioner’s documents
DATED and DELIVERED in NAIROBI this 25th day of November 2022M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Petitioner…………………………………………………………… for the Respondents………………………………………………………..……Court Assistant
33.It is the respondents’ case that in confiscating and withholding the petitioner’s documents, they acted within the law. They hold the documents in question which upon preliminary investigations disclose the possibility of having been obtained fraudulently. The petitioner’s refusal to honour summons to shed light on the matter have resulted in delay in the respondents making a final determination in relation to the documents. They further submitted that the Petition is intended to stop the respondents from executing their constitutional and statutory mandate and is an abuse of the court process.
34.Under section 49(8) of the Act, the 1st respondent has power to summon a person of interest as follows:
35.The court notes that in her affidavit sworn on January 12, 2021, the petitioner claimed that her mother Gabey Nuno Abikar died on 1.1.10 and annexed a copy of her death certificate. Also exhibited is a copy of the petitioner’s birth certificate indicating that Gabey Nuno Abikar and Hassan Moalim Mohamed as her mother and father respectively. However, in her further affidavit sworn on March 18, 2022, the petitioner stated that Gabey Nuno Abikar is her foster mother.
36.The foregoing places questions in the mind of the court, as to the legitimacy of the documents in question. How was the petitioner issued with a birth certificate indicating that her foster mother is her biological mother? Further, how did she travel to Kenya in 2018 using a Somali passport and shortly after in 2019 and 2020 obtain a Kenyan identity card and passport respectively. These no doubt are the answers the respondents seek from the petitioner.
37.As indicated herein, the respondents acted within the confines of the law in confiscating and withholding the petitioner’s documents, pending investigations. The petitioner has not told the court why she has failed to comply with the respondents’ lawful summons or indeed any difficulties she may have had in doing so. Rather than coming to court, the petitioner ought to comply with the summons by the respondents to explain the discrepancies in her documents and for a determination to be made as to whether the said documents are genuine and ought to be returned to her. Without her presenting herself to the respondents to shed light on the acquisition of the documents as required, the court is unable to grant the orders sought herein.
38.The upshot is that after considering the facts and the law herein, I find no merit in the petition dated January 12, 2022 and amended on June 10, 2022 and the same is hereby dismissed with costs.