A judge has ordered the government to permit a Muslim elder and businessman who was termed a prohibited Immigrant to continue with his work in the Country.
High Court Judge Mugure Thande in her Judgment said DCI, IG, Director of Immigration Services, CS Ministry of Interior and AG are in breach of Mueiz Ahmed Osman Bilal's, a Tanzanian National, Fundamental Rights and freedoms under Article (39)1 of the constitution.
"After considering the facts and the law, I find that the petition dated April 13, 2022, is merited and I make the following orders that the decision to tag the petitioner as a prohibited immigrant without any lawful cause and due process is unconstitutional and unlawful," said the judge.
The petitioner through lawyer John Swaka had sued DCI, The Inspector General of Police, the Director of Immigration Services, the CS Ministry of Interior and Coordination National Government and The Attorney General for tagging him as a prohibited immigrant.
“A declaration is hereby issued that the Government Officials involved in this case are in breach of the petitioner's fundamental rights and freedoms under Article 39(1)of the constitution," added Thande.
Thande ruled that the absence of Ahmed and his family in Kenya because of the actions of the said officials is in breach and a violation of his rights.
She added that Ahmed who has a residence in Kenya is entitled to equal protection under the law.
The judge said that failure by Immigration officials to write an explanation for removing him from the country is illegal and amounts to a denial of his fundamental rights.
“Declaring him a prohibited immigrant without following due process was illegal, “ruled Justice Thande.
Swaka said that his client is married with 5 children who reside in South c, Nairobi, a house he purchased.
He adds that he runs businesses and pays Taxes to KRA in Kenya.
“On December 4, 2022, my client was preparing for prayers during the Ramadan season, and he was inhumanly whisked away by officers from the DCI into a waiting vehicle," said Swaka in court documents.
In court documents lawyer Swaka says that 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 an organized crime.
“My client has never been charged in court nor summoned by the DCI and Immigration officials and he claims that his illegal removal from Kenya without due process, his rights have been violated and his wife and his 3 children have been left destitute," added Swaka.
He then sought orders declaring that the decision to tag him as a prohibited immigrant without due process is unlawful.
Ahmed also sought orders from the court declaring that he is by law entitled to due process if a decision is to be made to remove him from the jurisdiction of the court.
He wanted the Government to issue him with a written explanation for removing him from the country saying that under the new constitution, he was entitled to equal protection of the law.
The respondents even after they were granted ample time, never filed any response.
In his petition, Osman Bilal claimed that on April 12, 2022, at about 2.30 pm, as he was preparing for prayer during the Ramadan season, he was inhumanely whisked away by officers from DCI's office into a waiting vehicle.
"I was taken to Jomo Kenyatta International Airport (JKIA) and shuffled into a waiting flight to Tanzania," said the petitioner.
He said that 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.
While delivering judgment the judge pointed out that the petitioner has demonstrated that the respondents did not follow due process in dealing with him.
"Worse still, they did not even bother to respond to the petition. As stated by Justice Lenaola, as he then was, the constitutional requirement for due process is not illusory but obligatory." She said,
"This judgment should serve as a wake-up to all security agencies and those charged with issues of immigration.
"Due process under the Constitution 2010 is not illusory. It lives and thrives whatever the status of the person who demands it. The casual response to the present petition is worrying and the trend, if it continues, may lead to decisions that would in the end compromise national security,"said justice Thande.
