1.In his Petition dated April 13, 2022, the Petitioner, states that he is a Tanzanian national who is resident in Kenya. He is married with 5 children, 2 of whom live and study in Canada. His family resides on LR No xxxx/xx in South C, Nairobi County, which he purchased. He is involved in the business of facilitating travel and acquisition of employment and business opportunities around the world. He renewed his work permit on July 31, 2020 which was valid until July 31, 2022. In the years he has been in business he has remained compliant by ensuring that all licences are renewed and that collected revenues are submitted to the Kenya Revenue authority. In the course of his business he has acquired recognition and accolades from Kenya Airways and other airlines. The Petitioner has been operating his business from Uganda House since July 1, 2011. He is also a respected elder within the Muslim and business community in Nairobi.
2.The Petitioner claims that on April 12, 2022, at about 2.30 pm, as he was preparing for prayer during the Ramadhan season, he was inhumanely whisked away by officers of the 1st Respondent, into a waiting vehicle. He was taken to Jomo Kenyatta International Airport and shuffled into a waiting flight to Tanzania. He was informed that orders had been issued for him to be taken to Tanzania as he had been listed as a prohibited immigrant for being involved in organized crime. The Petitioner laments that he has neither been charged in any court nor summoned by the Respondents. He claims that as a result of his illegal removal from Kenya without due process, his rights have been violated by the Respondents, and his wife and 3 children have been left destitute.
3.The Petitioner thus seeks the following reliefs:
4.It is noted that the Petitioner is in the prayers above variously described as the Interested Party/Petitioner, Interested Party and Petitioner. This however is a matter of poor drafting and perhaps copy pasting.
5.The Petition is supported by the grounds therein and the affidavit sworn on even date.
6.The Respondents though served and in spite of being given ample opportunity to do so, did not file any response. The Petition thus proceeded as undefended and the claims by the Petitioner remain uncontroverted.
7.In his submissions, the Petitioner listed the following issues for determination which the Court hereby adopts:i.Whether declaration of the Petitioner as a prohibited immigrant contravened Articles 27(1), 39(1), 45(1), 47(1) and (2) and 53(1)(e) of the Constitution.ii.Whether the Petitioner is entitled to the reliefs sought.Whether declaration of the Petitioner as a prohibited immigrant contravened Articles 27(1), 39(1), 45(1), 47(1) and (2) and 53(1)(e) of the Constitution.
8.The Petitioner’s complaint is that he was declared a prohibited immigrant, yet he does not fall under any of the categories listed in Section 33(1) of the Kenya Citizenship and Immigration Act. As such, his removal from Kenya without due process contravened his constitutional rights and fundamental freedoms. The Petitioner further contended that he was not made aware of any illegal activity that would have caused him to be listed as a prohibited immigrant. Relying on Article 47(1) and (2) of the Constitution and Section 4 of the Fair Administrative Actions Act FAAA, the Petitioner contended that he is entitled to equal protection under the law and to be informed in writing, the reasons for adversely affecting his rights and fundamental freedoms and opportunity to defend himself. Additionally, the Petitioner submitted that the Respondents’ actions adversely affected him as he left behind his family who now depended on well-wishers for upkeep. Further that his business is on the verge of collapse as he is unable to attend to his clients due to his absence from Kenya.
10.The Petitioner states that he is a law-abiding individual. The exhibited work/resident permits show that he has been obtaining work permits consistently over the years. The latest resident/work permit was issued on July 31, 2020 which authorized the Petitioner to enter and remain in Kenya for a period of 2 years for the purpose of employment/business/profession or residence. The permit is expressed to be in accordance with the provisions of Section 40 of the Act. It is noted that Section 40(3) provides as follows:
11.At the time the Petitioner was issued with his permit, he was clearly not a prohibited immigrant or inadmissible person as Section 40(3) is clear that a permit may not be issued to such persons. As indicated herein, the Respondents did not file any response to the Petition. There is therefore nothing herein to persuade the Court that subsequent to the issuance of the permit to the Petitioner on July 31, 2020, he became a prohibited immigrant.
13.Upon issuance of an order under the foregoing provision, the person in respect of whom such order has been issued shall be returned to the place he originated from or with the approval of the Cabinet Secretary, to his country of residence or citizenship or place of his choice with approval of the authorities of such place. The law requires that the order of the Director for the removal of a person from Kenya must be in writing. The law further requires that the order shall be executed as the Cabinet Secretary shall direct but subject to the Constitution and related laws.
14.In the present case, the Petitioner has stated that he was not served with any order for his removal from Kenya. Further that he was bundled out of his office by officers of the 1st Respondent as he was preparing to go for prayers. This was done in the presence of his employees and customers. He was ferried to Jomo Kenyatta International Airport and shuffled into a waiting flight to Tanzania. All he was told is that orders have been issued for his deportation to Tanzania.
15.Article 47 of the Constitution provides for Fair administrative action as follows:
16.In compliance with Article 47(3) Parliament did enact the FAAA to give effect to the rights stipulated in Article 47(1). Section 4 of the Act provides:1.The administrator shall accord the person against whom administrative action is taken an opportunity to–a.attend proceedings, in person or in the company of an expert of his choice;b.be heard;c.cross-examine persons who give adverse evidence against him; andd.request for an adjournment of the proceedings, where necessary to ensure a fair hearing.
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 limits. The actions of such bodies must conform to the statutory provisions and must pass the Constitutional muster.
20.The learned Judge went on to state:
21.In the case of Republic v Fazul Mahamed & 3 others Ex-Parte Okiya Omtatah Okoiti  eKLR, cited by the Petitioner, Mativo, J (as he then was) stated:In John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others v The County Government of Nyeri & Ano  the court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature. These are:-
22.And in the case of Republic v Commission For Higher Education Ex-Parte Peter Shoita Shitanda  eKLR, Odunga, J. (as he then was) considered an application for judicial review orders and had this to say:As already stated hereinabove judicial review jurisdiction is merely concerned with the decision making process and not the merits thereof. In Uganda case of Pastoli v Kabale District Local Government Council and Others  2 EA 300, the Court citing Council of Civil Unions v Minister for the Civil Service  AC 2 and An Application by Bukoba Gymkhana Club  EA 478 at 479 held:
23.In the present case, when the actions of the Respondents are considered in light of the provisions of Article 47 of the Constitution, Section 43 of the Act and Section 4 of the FAAA, it is quite clear that the same are tainted with illegality as they are contrary to the provisions of the cited law. Further, by hounding the Petitioner out of his office in the presence of his employees and customers and further ferrying him to the airport and shuffled into a waiting flight to Tanzania, the Respondents actions were clearly unreasonable. No reasonable authority addressing itself to the facts and the law before it, would have made such a decision or acted in such a manner. The actions of the Respondents lacked procedural propriety and fairness as there was failure to observe the rules of natural justice. The Petitioner was not served with any deportation order nor informed of the reasons for his deportation in writing. Clearly, he was not accorded any fairness by the Respondents.
24.Further, the Petitioner has stated that he is a family man, married with 5 young children 3 of whom are minors. He is the breadwinner of the family and they all depended on him for upkeep. He has been away from his family since April 12, 2022 when he was forcefully removed from Kenya. By being deported, he has been denied his right to family as guaranteed under Article 45 of the Constitution.
25.Although the Petitioner is a foreigner, he is entitled to equal protection of the law. The rights to fair administrative action under Article 47, to family under Article 45(1) and of equality before the law and to equal protection and equal benefit of the law under Article 27(1) are available to every person, regardless of citizenship. By being hounded out of Kenya by the Respondents, as he was, without a written order or written reason, the Petitioner though a foreigner, was denied due process of the law. I do therefore find and hold that the Petitioner’s rights as set out herein were violated by the Respondents through their actions.Whether the Petitioner is entitled to the reliefs sought
26.The Petitioner seeks declarations that his rights have been violated by the Respondents. These are prayers that this Court has no difficulty granting given the findings herein.
27.I now turn to the remaining prayers. The Petitioner seeks an order prohibiting the 1st, 2nd and 3rd Respondents, jointly and severally and through their agents or officers claiming authority under them from prohibiting him from re-entering Kenya upon exit therefrom using his Tanzanian Passport No. ABxxxxx. Although the deportation of the Petitioner has been found to be unlawful, the Court cannot dictate to the 3rd Respondent the travel documents to accept. This falls within the realm of the 3rd Respondent’s mandate. Under Section 48 of the Act, it is the officers of the 3rd Respondent who determine whether a person may enter Kenya on the strength of the travel documents presented. An order specifying the travel document to be used by the Petitioner in re-entering Kenya would be tantamount to interfering with the 3rd Respondent’s constitutional and statutory mandate. In this regard, I am guided by the holding in the case of Tom Dola & 2 others v Chairman, National Land Commission & 5 others  eKLR where the Court of Appeal stated:
28.The Petitioner has also prayed that an order for exemplary and punitive damages issued against the 1st -5th Respondents jointly and severally, on account of their gross violation of his fundamental freedoms and rights as enshrined in the petition.
29.Article 23 (3) of the Constitution provides the following remedies:
30.This is a case of constitutional violation, which does not call for an award of compensatory damages in the traditional sense. Further, the award of damages is a secondary remedy, as was stated by the Constitutional Court of South Africa in the case ofDendy v University of Witwatersrand, Johannesburg & Others -  1 LRC 291 as follows:
31.I also derive guidance in the case of Gitobu Imanyara & 2 others v Attorney General  eKLR in which the Court of Appeal addressed the issue of award of damages for infringement of constitutional rights and stated:Per Lord Nicholls at Paragraphs 18 & 19:When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches.(emphasisours). All these elements have a place in this additional award. “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award. (emphasis ours).
32.The Court of Appeal went on to state:
33.Duly guided by the dictum in the cited cases and having regard to the circumstances herein, I find that the justice of this case does not favour the grant of an award of damages for the breach of the Petitioner’s constitutional rights. My view is that a declaration of violation of rights would be the appropriate remedy. In any event, no submissions were made to support the claim for damages.
37.As demonstrate herein, the Respondents did not follow due process in dealing with the Petitioner. Worse still, they did not even bother to respond to the Petition. As stated by Lenaola, J. (as he then was) the constitutional requirement for due process is not illusory but obligatory. The Court abhors the practice of State agencies of treating suits against them casually. Due to default on the part of the Respondents, the Court did not have the benefit of the hearing the State’s side of the story and may have arrived at a decision that may in the end compromise national security.
38.The upshot is that after considering the facts and the law herein, I find that the Petition dated April 13, 2022 is merited and I make the following orders:i.A declaration be and is hereby made that the decision to tag the Petitioner as a prohibited immigrant without any lawful cause and due process is unconstitutional/unlawful.ii.A declaration be and is hereby made that the Petitioner is by law entitled to due process if a decision is to be made declaring him a prohibited immigrant.iii.A declaration be and is hereby made that the Petitioner is by law entitled to due process if a decision is to be made removing him from the jurisdiction of the Court.iv.A declaration be and is hereby made that the failure by the 1st, 2nd and 3rd Respondents to issue the Petitioner with a written explanation for removing him from the jurisdiction of the Court is illegal, unlawful and amounts to a denial, breach and violation of the Petitioner’s fundamental rights and freedom under Article 47(1) and (2) of the Constitution of Kenya.v.A declaration be and is hereby made that under and by virtue of the provisions of Article 27(1) of the Constitution of Kenya the Petitioner is entitled to equal protection of the law.vi.A declaration be and is hereby made that the absence of the Petitioner from his family in Kenya by virtue of the actions/decision of the Respondents, is in breach and violation of his fundamental rights and freedoms under Article 45(1) and 53(1)(e) of the Constitution of Kenya.vii.A declaration be and is hereby made that the Respondents are in breach of the Petitioner’s fundamental rights and freedoms under Article 39(1) of the Constitution of Kenya.viii.An order is hereby issued to the 1st Respondent to permit the Petitioner to enter into and remain in Kenya and should a decision be made to remove him from Kenya, then due process shall be followed.ix.The Petitioner shall have costs.