Kenya Law: 29/07/2013

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Monday, 29th July

Issue 29/2013

CASE OF THE WEEK

The scope of the right to entry for non-citizens

Mohamed Ibrahim Naz v Cabinet secretary responsible for matters relating to citizenship and the management of foreign nationals & another
Petition No 333 of 2013
High Court at Nairobi
Mumbi Ngugi, J
Reported by Phoebe Ida Ayaya and Derrick Nzioka

Facts:
The petitioner, a Pakistani national who had been in Kenya on the basis of a work permit issued on 3rd November 2011, was arrested on 5th June 2013 and held in custody for a period of four days. On 9th June 2013, he was deported to Islamabad in Pakistan, his home country. On 23rd June 2013, the petitioner arrived at the Jomo Kenyatta International Airport and sought to enter the country but was denied entry into Kenya.

The petitioner alleged that he was arrested from his house without a warrant, then put on a plane and told to go to Islamabad, Pakistan; that at no time was he told the reasons for his removal from Kenya; he had never been served with a declaration by the Cabinet Secretary declaring him to be a prohibited immigrant, nor was he served with any order for his removal. As the decision by the Cabinet Secretary to declare the petitioner prohibited, and the reasons for the decision, were not communicated to him; and he was also not given an opportunity prior to his deportation to question the decision; due process as envisaged article 47 of the Constitution was not followed.

Issues:

i. Whether the refusal by the state to allow a deported person access back into Kenya amounted to a violation of the person’s freedom of movement and residence as provided for under article 39 of the Constitution of Kenya, 2010.

ii. Whether the court could interfere with the powers of the State and allow a deported person who had been disallowed access back into Kenya, by ordering for the person’s re-entry.

Constitutional Law – fundamental rights and freedoms – where the petitioner was denied access to Kenya after being declared a prohibited immigrant – where the petitioner averred that the denial of access to Kenya despite his having a valid work permit amounted to a violation of article 39 of the Constitution of Kenya, 2010 – whether the provisions of article 39 of the Constitution of Kenya, 2010 could apply to a non-citizen – whether the constitutional rights of a non-citizen were still enforceable after deportation – whether the court could interfere with the order for deportation – Constitution of Kenya, 2010 articles 27, 28, 29, 39, 40, 45 & 47 – Universal Declaration of Human Rights, article 13 – International Convention on Civil and Political Rights, articles 12 & 13 – African Charter on Human and People’s Rights, article 12

Immigration Law – deportation – where the petitioner was declared a prohibited immigrant and a removal order was issued – where the petitioner averred that due process was not observed in the deportation process – where the petitioner was deported and subsequently returned to Kenya but was denied access – where the petitioner averred that the denial of access to Kenya amounted to a violation of his freedom of movement and residence – whether the provisions of the Constitution applied to a non-citizen – whether the denial of access to Kenya amounted to a violation to the petitioners constitutional rights – Constitution of Kenya, articles 39 & 47 – Kenya Citizenship and Immigration Act, section 57.

Constitution of Kenya, 2010
Article 39

(1) Every person has the right to freedom of movement.
(2) Every person has the right to leave Kenya.
(3) Every citizen has the right to enter, remain in and reside anywhere in Kenya.

Universal Declaration of Human Rights
Article 13

1. Everyone has the right to freedom of movement and residence within the borders of each state.
2. Everyone has the right to leave any country, including his own, and to return to his country.

International Convention on Civil and Political Rights
Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

African Charter on Human and People’s Rights
Article 12

1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.
3. …
4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.

Held:

1. The petition before court being a constitutional one, meant that the petitioner had an obligation to show the provisions of the Constitution that had been violated and the manner of violation with regard to him as held by the cases of Anarita Karimi Njeru (1976-80) 1 KLR 1272 and Trusted Society of Human Rights Alliance v Attorney General & Others High Court Petition No 229 of 2012.

2. At the core of the petition was the assertion that the respondents allegedly violated the petitioner’s freedom of movement and residence under article 39 of the Constitution of Kenya, 2010, although there were also allegations of violation of the right to dignity and liberty under articles 28 and 29, the right to equality before the law under article 27, the right to property under article 40, the right to family under article 45 and fair administrative action under article 47. The constitutional provisions were also in accord with the provisions of the Universal Declaration of Human Rights (UDHR), the International Convention on Civil and Political Rights (ICCPR) and the African Charter on Human and People’s Rights (ACHPR).

3. The right to enter, remain in and reside in Kenya was restricted to citizens, both by the Constitution and under international law. While article 39(1) and (2) of the Constitution of Kenya, 2010 guaranteed to all persons the freedom of movement and right to leave Kenya, the right to enter, remain and reside anywhere in Kenya was the preserve of citizens. Thus, the petitioner, who had of his own volition come back from his country of origin, Pakistan, after being deported from Kenya, and been denied entry into Kenya at the airport, could not demand that he be allowed entry and, upon denial thereof, allege violation of his right under article 39 or the provisions of international conventions.

4. The requirement in removing an alien from a state’s territory, as provided under international conventions and in accordance with article 47 of the Constitution of Kenya, 2010 was that such removal had to be in accordance with the law, and that due process was to be followed.

5. Due process was followed in the deportation of the petitioner as evidenced by the annexation of a declaration issued under section 33 of the Kenya Citizenship and Immigration Act declaring the petitioner a prohibited immigrant and a removal order issued under section 43(1) of the same act for the removal of the petitioner to his country of origin.

6. The said declaration and removal orders were not challenged during the four days between the date of his arrest and his deportation as provided under section 57 of the Kenya Citizenship and Immigration Act, and as the provisions of international instruments indicated and the Constitution of Kenya, 2010 at article 47 required, the obligation on the state was to follow due process.

7. Where it appeared, that such process was followed and the petitioner removed from the country in accordance with the law, it would be an unwarranted interference with the sovereign power of the state were the court to make orders allowing the re-entry of the petitioner.

Petition dismissed.

View the Full Judicial Opinion

SELECTED NOTICES FROM THE KENYA GAZETTE

Gazette Vol CXV – No 109 Dated July 26, 2013
Contents

The Constituencies Development Fund Act— Appointment
The County Governments Act—Appointment.
The Medical Practitioners and Dentists Act—Approved Institutions.
The Media Act—Appointment.
The Trust Land Act—Setting Apart of Land.
The Registration of Titles Act—Issue of Provisional Certificates.
The Registered Land Act—Issue of New Land Title Deeds, etc.
Probate and Administration.
The Kenya Power and Lighting Company Limited — Foreign Exchange Rate Fluctuation Adjustment, etc.
The Kenya Information and Communications Act— Application of Licences.
The Water Act—New Water and Sewerage Tariffs.
The Companies Act—Intended Dissolution, etc.
The Advocates Act—Quarterly Report.
The Elections Act—Tallying Centres.
The Physical Planning Act — Completion of Part Development Plans.
The Environmental Management and Co-ordination Act— Environmental Impact Assessment Study Reports .
Closure of Roads.
Loss of Share Certificate.
Loss of Policies.
Change of Names.

SUPPLEMENT Nos. 105, 106, 107 and 108
Bills, 2013
The Kenya Information and Communications (Amendment) Bill, 2013.
The Media Council Bill, 2013 .
The Wildlife Conservation and Management Bill, 2013
The Truth, Justice and Reconciliation (Amendment) Bill, 2013.

Selected Gazette Notices

GAZETTE NOTICE NO. 10160
THE CONSTITUENCIES DEVELOPMENT FUND ACT
(No. 30 of 2013)

IN EXERCISE of powers conferred by section 24 (4) of the Constituencies Development Fund Act 2013, the Cabinet Secretary, Ministry of Devolution and Planning gazettes the following to be Members of Constituency Development Fund Committee for Kamukunji, Karachuoyo Baringo North and Tarbaj constituencies respectively as outlined below, for a period of three (3) years, with effect from 12th July, 2013.
KAMUKUNJI CONSTITUENCY
1. Abdia ziz Mohamed Hirsi - Chairman
2. Fund Account Manager, Kamukunji - Ex officio Member (Secretary)
3. Depu ty County Commissioner - National Government Official (Member)
4. Rapha el Maingi Kimilu - Member
5. Peter Kimani Wambui - Member
6. Naom i Mueni Muli - Member
7. Mario n Wambui Musyoki - Member
8. Theresa Wambui Thuo - Member
9. Judith Muthoni Ng’ang’a - Member
10. Viole t Lihemo Kivaya - Member

KARACHUONYO CONSTITUENCY
1. Pacifica Okiri Adero Kobe Chairperson
2. Fund Account Manager, Karachuonyo - Ex-officio Member (Secretary)
3. Deputy County Commissioner - National Government Official (Member)
4. Anna Atieno Mbayi Member
5. Floren ce Jepkosgei Korir Member
6. Richa rd Okoko Ogembo Member
7. Steve Biko Odidi Member
8. Samu el Okuta Lieta Member
9. Hanto ne Ayaga Olero Member
10. Josiah Nyangoya Opar Member

BARINGO NORTH CONSTITUENCY
1. Stanley Kimasar Chelimo Amdany - Chairman
2. Fund Account Manager, Baringo North - Ex-officio Member (Secretary)
3. Deputy County Commissioner - National Government Official (Member)
4. Kennedy Chebon Kiptalam Member
5. Musa C. Kipkoti Member
6. Florence Jerutich Kipsimtah Member
7. Jepch umba Grace Mengich Member
8. Rodah Jepkemei Toroitich Member
9. Josep h Kesa Kibet Member
10. Mose s Kipsang Kachumo Member

TARBAJ CONSTITUENCY
1. Noor Mohamed Hassan - Chairman
2. Fund Account Manager, Tarbaj - Ex-officio Member(Secretary)
3. Depu ty County Commissioner National Government Official - (Member)
4. Moha med Mohamud Ada - Member
5. Ali Je lle Abdille - Member
6. Abshi ra Said Daar - Member
7. Halim a Mohamed Subane - Member
8. Nimo Hirab Hassan - Member
9. Moha med Subow Abdille - Member
10. Sharu n Iman Dahir - Member

Dated the 12th July, 2013.

ANNE WAIGURU,
Cabinet Secretary,
Ministry of Devolution and Planning.

GAZETTE NOTICE NO. 10161
THE CONSTITUTION OF KENYA
THE COUNTY GOVERNMENTS ACT
(No. 17 of 2012)
LAMU COUNTY PUBLIC SERVICE BOARD
APPOINTMENT

IN EXERCISE of the powers conferred by Article 235 (1) of the Constitution as read with sections 57 and 58 (1) (b) (c), (2),(3) and (4) of the County Governments Act, 2012, and upon approval by the Lamu County Assembly in its session held on the 9th July, 2013, I, Issa Abdalla Timamy, Governor of Lamu County, appoint the following persons to be members of the Lamu County Public Service Board.
Ali Mahmud Mbwarali—(Chairman).
Fatuma Said Abdalla.
Abdalla Ahmed Ali.
Joyce Wanjiku Murimi.

Dated the 10th July, 2013.

ISSA ABDALLA TIMAMY,
Governor, Lamu County.

GAZETTE NOTICE NO. 10162
THE MEDICAL PRACTITIONERS AND DENTISTS ACT
(Cap. 253)
APPROVED INSTITUTIONS

IN EXERCISE of the powers conferred by section 22 (2) (b) of the Medical Practitioners and Dentists Act, the Director Medical of Services, declares the Institutions named in the schedule hereunder to be approved institutions for the purposes of that section.

County District Name of Facility/Proposed status
Kiambu Kiambu Lioki Dispensary
Ndenderu Dispensary
Githunguri Gathangari Dispensary
Kimathi Dispensary
Mbari-ya-Igi Dispensary
Thika Karibaribi Dispensary
Makongeni Dispensary
Gatundu North Gitwamba Dispensary
Gatundu South Mundoro Dispensary
Lari Karatina Health Centre
Kereita Forest Dispensary
Limuru Rwamburi Dispensary
Ruiru Langata Dispensary
Mugutha Dispensary
Mutonya Dispensary
Kajiado Loitokitok Enkong'u Narok Dispensary
Imbirikani Dispensary
Oldonyo Oibor Dispensary
Makueni Makindu Kalii Dispensary
Kaunguni Dispensary
Kiboko Dispensary
Syumile Dispensary
Kitui Kitui West Kilimu Dispensary
Kyaani Dispensary
Maseki Dispensary
Mithikwani Dispensary
Murang'a Murang'a South Mukurenju Dispensary

Dated the 10th July, 2013.

FRANCIS M. KIMANI,
Director of Medical Services.

GAZETTE NOTICE NO. 10163
THE MEDIA ACT
(No. 3 of 2007)

IN EXERCISE of powers conferred by section 6 (1) (i) of the Media Act, 2007, the Director of Information appoints —

MARY OMBARA
to be a member of the Media Council of Kenya, for a period of three (3) years, with effect from the 19th July, 2013 and revokes the appointment of Ezekiel Mutua.

Dated the 15th July, 2013.

OLEWE OWITI,
Director of Information.

GAZETTE NOTICE NO. 10164
THE TRUST LAND ACT
(Cap. 288)
SETTING APART OF LAND

NOTICE is given that the land described on the schedule hereto has been duly set apart in accordance with the provisions of Part IV of the Trust Land Act, for the purposes specified in the said schedule.

SCHEDULE

Place.—Mitangoni, Mariakani.
Purpose.—Business cum Residential.
Area.—80.94ha. approximately.
Description of Land:

This Land is situated approximately 8 kilometres to the North-west of Mariakani Township. The boundaries are demarcated on the ground and are described as follows:
Starting from a point D1. which is an I.P.C from which Spot Height 231 and Spot Height 235 are 1,950m and 1,400 m distant on bearing of 24°30'00" and 320°00'00" respectively.
Thence for 518.00 m on a bearing of 305°10’16" to point D2-1PC; thence for a distance of 107.50 m on a bearing of 315°45'11" to point D3-1PC; thence for a distance of 352.50 m on a bearing of 321°00'02" to point D4-1PC; thence for a distance of 620.00 m on a bearing of 24°10'30" to point D5-1PC; thence for a distance of 355.00 m on a bearing of 231°15'37" to point D6-1Pc ; thence for a distance of 310.00 m on a bearing of 133°30'16" to point D7- 1PC;thence for a distance of 295.00 m on a bearing of 326°30'35" to point D8-1PC; thence for a distance of 363.00 m on a bearing of 08°30'26" to point D9-1PC;thence for a distance of 640.00 m on a bearing of 12°00'02" to point KD1-PC.

All bearings given above are magnetic.

A plan of the area may be inspected at the Office of the District Commissioner, Kilifi.

Dated the 24th July, 2013.

MUHAMMAD SWAZURI,
Chairman,National Land Commission.
R/2836156

GAZETTE NOTICE NO. 10603
THE ADVOCATES ACT
THE COMPLAINTS COMMISSION
90TH QUARTERLY REPORT

PURSUANT to Section 53(9) of the Advocates Act and Rule 12(1) of the Advocates (Complaints Commission) Rules, 1991 it is notified for general information that from 1st April, 2013, to 31st June 2013, the Commission received a total of two hundred and eighty four (284) new complaints out of which twenty five (25) were classified and files opened. Two hundred and fifty nine (259) were submitted for further enquiry under Preliminary Enquiry Initiative.

The nature of new complaints is as shown below:

Nature of complaints No. of complaints

(a) Failure to account Nil
(b) Failure to keep client informed 1
(c) Failure to render professional services 9
(d) Withholding funds 12
(e) Issuing Dishonored Cheques Nil
(f) Delay Nil
(g) Withholding documents 1
(h) Others 2
TOTAL 25

Complaints filed against advocates/firms of advocates were disposed of in the following manner:

Classified Complaints No. of Complaints
(a) Abandoned 7
(b) Settled 4
(c) Closed: no misconduct disclosed 7
(d) Dismissed Nil
(e) Withdrawn 1
(f) Others Nil
TOTAL 19

Preliminary Enquiry (PE) complaints

Total number of complaints subjected to Preliminary Enquiry (PE) was two hundred and fifty nine (259).

Total number of complaints settled under the Preliminary Enquiry (PE) was two hundred and fifty eight (258).

The matters referred to the Disciplinary Committee (DC) during the same period for further action and in accordance with Section 57(1) of the Advocates Act were twenty (20).

During the same period a further twenty one (21) cases were disposed of as follows:

No. of Complaints
(a) Advocates Struck Off the Roll of Advocates Nil
(b) Advocates suspended Nil
(c) Advocates acquitted 1
(d) Settled (matters resolved) 6
(e) Withdrawn 4
(f) Dismissed 3
(g) Others Nil
TOTAL 14

In pursuant to Section 53(4) and in the spirit of Section 53(5) of the Advocates Act, fifteen (15) complaints were settled amicably at the Advocates’ Complaints Commission.

Dated the 1st July, 2013.

BEAUTTAH SIGANGA,
Chairman

GAZETTE NOTICE NO. 10604
THE CONSTITUTION OF KENYA
THE ELECTIONS ACT
(No. 24 of 2011)
THE ELECTION (GENERAL) REGULATIONS, 2012
TALLYING CENTRES FOR THE MAKUENI BY-ELECTION
TO BE HELD ON 26TH JULY, 2013

IN EXERCISE of the powers conferred by Article 86, 88 (4) the Constitution of Kenya and Regulations 84 (1) and (2) of the Elections (General) Regulations, 2012 the Independent Electoral and Boundaries Commission gives notice to the public that the places listed in the Third Column to the First and Second Schedules shall be the tallying centers for the Makueni Senate Seat By-Elections to be held on 26th July, 2013.

SCHEDULE I

COUNTY TALLYING CENTRE

County	Venue
Makueni	Wote Technical Training Institute, Wote

SCHEDULE 2
CONSTITUENCY TALLYING CENTRES

Constituency Code	Constituency Name	Venue
083	Mbooni	Tawa Social Hall, Tawa
084	Kilome	Nedlands Hotel, Malili
085	Kaiti	Mukuyuni Secondary School Mukuyuni
086	Makueni	Aic Church Hall, Wote
087	Kibwezi West	Kibwezi Technical Training Institute, Kibwezi
088	Kibwezi East	Kambu Catholic Social Hall, Kambu

Dated the 24th July, 2013.

A. I. HASSAN,
Chairperson,
Independent Electoral and Boundaries Commission,

GAZETTE NOTICE NO. 10131
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED RELOCATION OF PETROS FILLING
STATION
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of the Environmental Management and Co-ordination (Impact Assessment and Audit) Regulations, 2003, the National Environment Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Petros Petroleum Enterprises) intends to relocation and construction of a petrol station.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Makueni County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/9836436

GAZETTE NOTICE NO. 10607
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED WASTE OIL HANDLING YARD ON PLOT
L.R. NO. 118/3/MOMBASA SOUTH ALONG UKUNDA
HIGHWAY LIKONI AREA, MOMBASA COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of the Environmental Management and Co-ordination (Impact Assessment and Audit) Regulations, 2003, the National Environment Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Pwani Trading Ark) is proposing to:

• Set up overhead storage tanks.
• Construct additional interceptor channels to the already existing ones.
• Construct bund walls for storage tank.
• Construct a drainage channel for storm water.
• Set up an operational site office.
• Transport waste oil from the Port of Mombasa to the waste oil handling yard.
• Separate water from waste oil.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Mombasa County.

B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/2836807

GAZETTE NOTICE NO. 10608
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED PETROL SERVICE STATION FOR GULF
ENERGY LIMITED IN THIKA, PLOT L.R. NO. 12861/223 (14360),
KIAMBU COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of the Environmental Management and Co-ordination (Impact Assessment and Audit) Regulations, 2003, the National Environment Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the above proposed project.

The Proponent (Gulf Energy Limited) is proposing to construct a fully equipped service station with auxiliary facilities on Plot L.R. No. 12861/223 (14360) Thika, Kiambu County.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521, Nairobi.
(c) County Director of Environment, Kiambu County.

B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/2836305

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Milimani Commercial Courts Building,
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P.O Box 10443 - 00100, Nairobi Kenya.
Tel: (254 020) 2712767, 2719231
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Newsletter on 29/07/2013