Hearing an employee before suspension for investigations is not a mandatory requirement under the Employment Act

Headnote:      The respondent was employed as Clerk of the Kwale County Assembly and suspended on March 2, 2020, pending investigations under section 22 of the County Assembly Service Act. He challenged the suspension, claiming it violated his constitutional rights and amounted to removal without due process under section 23. The trial court ruled in his favor, finding the suspension unlawful and awarding partial costs. On appeal, the Court of Appeal overturned the finding equating suspension to removal. The word “suspend”, as used in section 22 of the County Assembly Service Act, meant to remove one from office and was an interlocutory administrative measure that may be imposed pending investigations.

Kwale County Assembly Service Board & 6 others v Dzila (Civil Appeal E102 of 2022) [2024] KECA 945 (KLR) (26 July 2024) (Judgment)

Neutral Citation: [2024] KECA 945 (KLR)

Court of Appeal at Mombasa

AK Murgor, KI Laibuta, and GV Odunga, JJA

July 26, 2024

Reported by John Ribia

Statutes – interpretation of statutory provisions - sections 22 and 23 of the County Assembly Service Act - what was the meaning of “suspend”, and “remove” as used in section 22 and 23 of the County Assembly Service Act - whether the word “suspend”, as used in section 22 of the County Assembly Service Act, meant to remove one from office and was not an interlocutory administrative measure that may be imposed pending investigations – County Assembly Service Act, 2017 (cap 265D) sections 22 and 23.

Employment Law – suspension – nature of suspension – types of suspension – holding suspension vis-à-vis a punitive suspension – legal implications and differences between a holding suspension vis-à-vis a punitive suspension - what was the difference between a holding suspension and punitive suspension; and what legal implications did each carry - whether hearing an employee was necessary before suspending them to allow for investigations into allegations against the employee (holding suspension) was a mandatory requirement under the Employment Act - whether the suspension issued by the appellants to the respondent constituted a holding suspension (temporary administrative measure) or a punitive suspension (disciplinary action with penal consequences) - County Assembly Service Act, 2017 (cap 265D) sections 22 and 23; Constitution of Kenya articles 30(2), 41, 232, and 236; County Governments Act (cap 265) section 12(4); Employment And Labour Relations Court Act (cap 8E) section 12(3)

Words and Phrases – suspend – definition - to temporarily keep a person from performing a function, occupying an office, holding a job, or exercising a right or Privilege - Black’s Law Dictionary, 7th Edition

Words and Phrases – removal – definition – the immediate termination of an office holder’s privilege to serve in that office, usually after a vote. - Black’s Law Dictionary, 11th Edition 

Brief facts

The respondent was employed as the Clerk of the County Assembly of Kwale in August 2019 and also served as Secretary to the Kwale County Assembly Service Board (the 1st appellant). Following allegations of gross misconduct, the respondent was issued a suspension letter on March 2, 2020, pursuant to section 22 of the County Assembly Service Act. The suspension was framed as an administrative measure, pending investigations.

The respondent contended that the suspension was unlawful and violated the principles of natural justice. He further alleged bias on the part of the appellants, claiming that they had prejudged the disciplinary process and initiated proceedings against him in bad faith. Additionally, he argued that the suspension amounted to removal from office without adherence to the procedural safeguards outlined in section 23 of the County Assembly Service Act.

The Employment and Labor Relations Court (trial court) at Mombasa issued a ruling in favor of the respondent, holding that "suspend" under section 22 equated to "remove" and that the suspension violated due process requirements. The trial court directed that the respondent's suspension and disciplinary proceedings be stayed and awarded him part of his outstanding salary and costs.

The appellants appealed the decision, arguing that the trial court misconstrued sections 22 and 23 of the County Assembly Service Act and failed to recognize the distinction between suspension (a temporary administrative action) and removal (a punitive measure requiring due process). The respondent cross-appealed, asserting that the appellants had violated his rights and that the trial court erred in apportioning costs.

Issues

  1. Whether the word “suspend”, as used in section 22 of the County Assembly Service Act, meant to remove one from office and was not an interlocutory administrative measure that may be imposed pending investigations.
  2. What was the difference between a holding suspension and punitive suspension; and what legal implications did each carry?
  3. Whether hearing an employee was necessary before suspending them to allow for investigations into allegations against the employee (holding suspension) was a mandatory requirement under the Employment Act.
  4. Whether the suspension issued by the appellants to the respondent constituted a holding suspension (temporary administrative measure) or a punitive suspension (disciplinary action with penal consequences).

Held

  1. Being a first appeal, it was the courts duty to re-evaluate, re-assess and re-analyze the evidence on record and determine whether the conclusions reached by the trial court should be upheld. The court should only interfere with the findings of the trial court where the decision was based on no evidence or on a misapprehension of the evidence, or where the trial court was demonstrably shown to have acted on wrong principles in reaching its findings.
  2. In interpretation of statutes, the starting point was to construe the text and context behind the impugned statutory provisions. Interpretation must depend on the text and the context. They were the bases of interpretation. When construing statutes, it was also necessary for the purpose and intent of the statute to be identified.
  3. When the text and context of the phrase “to suspend or remove” in section 22 as read with section 23 of the County Assembly Service Act (the Act) were construed, the wording of the provisions were clear and unambiguous. Suspend meant to temporarily keep a person from performing a function, occupying an office, holding a job, or exercising a right or Privilege. Removal meant the immediate termination of an office holder’s privilege to serve in that office, usually after a vote. To suspend was therefore with reference to a temporary deprivation of a person’s powers or privileges, especially of office or profession; it also included temporary withdrawal from employment, as distinguished from permanent severance as in the case of removal.
  4. The intention of the impugned provision was to provide for disciplinary action that could be taken against the Clerk of the Assembly. Although section 22 of the Act specified two forms of disciplinary action, that was, suspension on the one hand or removal on the other, no procedure was laid down for imposition of a suspension, unlike removal, where section 23 of the Act prescribed an elaborate procedure for removal of the Clerk. The Act having set out a specific procedure for removal, but none for suspension, would lead us to conclude that the two disciplinary processes were separate and distinct, and not one and the same.
  5. Reference in section 22 of the Act was made to suspend ‘or’ remove. In its plain form, the word ‘or’ was a disjunctive article that created an alternative option. The drafters intent was to make available two different forms of disciplinary action that could be instituted by the employer in addressing disciplinary infractions.
  6. The trial court misconstrued the meaning of section 22 as read with section 23 and came to the wrong conclusion that suspend in section 22 of the County Assembly Service Act meant to remove and, by so finding, wrongly held that the respondent was unlawfully removed from office. It was necessary for the instant court to interfere with the decision. Suspending the Clerk was available to the Board as a disciplinary measure.
  7. There were two types of suspensions, a holding suspension and punitive suspension. It may be imposed as a holding operation, pending the investigation of the complaint. Such a suspension did not imply that there had been a finding of any misbehaviour or breach of rules by the suspended person, but merely that an allegation of some such impropriety or misconduct has been made against the member in question. On the other hand, a suspension may be imposed not as a holding operation pending the outcome of an inquiry, but as a penalty by way of punishment of a member who had been found guilty of misconduct or breach of rules. Where a suspension was imposed by way of punishment, it followed that the body in question had found its member guilty of significant misconduct or breach of rules.
  8. The nature of a suspension may be twofold. Firstly, a suspension may result in, inter alia, a punishment that required notice so as to provide the employee with an opportunity to defend themselves against the allegations of misconduct. Secondly, it may result in a suspension pending enquiries, the latter being an administrative action taken against an employee or officer for a distinct period on full pay pending enquiries into the allegations arising in the work place.
  9. Section 22 of the Act did not indicate whether, by imposing a suspension a preliminary step was being taken towards removal, or whether it would amount to a temporary measure pending investigations, that was, a holding suspension, or whether it was with reference to a punitive sanction. Unlike section 23 which prescribed an express procedure for removal, section 22 was silent on the procedure leading to a suspension to wit, how it should be initiated, the duration of the suspension, the effect of the suspension, the payment of remuneration and other benefits, and whether the Clerk was to be offered an opportunity to respond or not.
  10. The contents of the suspension letter construed that the suspension was a holding suspension where the administrative action taken was intended to allow the appellants the opportunity to conduct investigations into the allegations of misconduct. Nothing in the letter pointed to the respondent as having been adjudged as guilty, or showed that the suspension was intended as punishment for any employment offence. Subject to section 22 of the Act, notwithstanding the absence of a prescribed procedure leading to a suspension, what was contemplated under section 22 of the County Assembly Service Act was not a punitive suspension in the form of a penalty that would otherwise have necessitated a disciplinary hearing. Rather, the appellants’ actions were specifically with reference to a holding suspension comprising a temporary separation in the context of good administration pending investigation and or inquiry into the allegations of misconduct whereupon, dependent on the outcome of the investigations, the suspension would either be lifted or the process of removal commenced under section 23.
  11. A holding suspension did not require that the respondent be subjected to the rules of natural justice. A letter of suspension as an administration action pending investigations was at that stage of the process unnecessary and impractical.
  12. A suspension from employment was not a termination. It was in essence a temporary separation from day-to-day duties of an employee suspected of committing a disciplinary offence. It was usually handed out to allow for investigations into the allegations against the employee concerned. It was as it were, quite a preliminary stage in the disciplinary process where the evidence in support of the allegations was subject to further investigations and the employee subject to suspension could not conveniently continue to work when they were going on. To require an employer to hear an employee in such a preliminary stage before handing the suspension did not sound practical. Whereas in some organizations or employment contracts, hearing before suspension may be provided for but was not a mandatory requirement under the Employment Act. An employee proceeding on suspension was usually called upon to react to the preliminary charges which was usually considered vis-à-vis the final investigations report before escalating the issue to a disciplinary hearing.
  13. A hearing at the point of issuance of a holding suspension was not necessary, particularly since no procedure was spelt out by the County Assembly Service Act for the issuance of such suspension.
  14. The respondent did not demonstrate how provisions of the Constitution were violated, or how the appellants failed to follow due process.
  15. In determining real or apparent bias, that the first step be the ascertainment of the circumstances upon which the allegation of bias was anchored. The second step was to use the ascertained circumstances to determine objectively the likely conclusion of a fair minded and informed observer, on the presence or absence of reasonable apprehension of bias. It was one thing to allege facts and another to establish the facts. The perception of bias could only be based on established facts. In the absence of any demonstration of bias by the individual members of the 1st appellant, the allegations were unmerited, and the trial court rightly dismissed them.
  16. The trial court's apportionment of costs at 50:50, finding it reasonable given the partial success of both parties. The trial court's discretion was exercised judiciously, reflecting the mixed outcomes and aligning with established principles that costs follow the event but may be adjusted in the interests of justice.

Appeal partly allowed.

Orders

  1. The declaration by the trial Judge that “suspend” means “remove” (and was not an interlocutory administrative measure that may be imposed pending investigations) and “suspend” under the section shall not be imposed by the County Assembly Service Board unless in accordance with and after conclusion of the due process prescribed under section 23 of the Act” was set aside.
  2. The cross appeal was without merit and was dismissed.
  3. Costs of the appeal and cross appeal were awarded to the appellants.

     

County governments lack authority to levy agricultural cess.

Headnote:      The petition challenged the constitutionality of the Muranga County Finance Act 2013, which imposed agricultural cess on tea and fruits at 1% of turnover. The petitioner, Kakuzi PLC, argued that the cess was unconstitutional as county governments lack the authority under article 209(3) of the Constitution to levy such taxes without authorization by national legislation. The petitioner further claimed the Act was invalid, having not been published in the Kenya Gazette as required under Article 199(1) of the Constitution. The court found the cess to be an unauthorized tax, the Act unconstitutional, and the retroactive cess demands unlawful. The petition was allowed.

Kakuzi Plc v General & another (Petition 57 of 2018) [2024] KEHC 5288 (KLR) (30 April 2024) (Judgment)

Neutral Citation: [2024] KEHC 5288

High Court at Murang'a

J Wakiaga, J

April 30, 2024

Reported by John Ribia

Devolution – county governments – taxation and revenue collection – scope – agricultural cess -whether county governments have the mandate to levy cess on agricultural produce – whether county governments had the power/mandate to levy agricultural cess - whether the cess was a tax or charges for the services rendered by the county government - whether the Crops Act authorized county governments to levy cess as a tax on agricultural produce or limited their powers to specific fees for agricultural development – Constitution of Kenya articles 209 and 210; Crops Act (cap 265) sections 7 and 17; Public Finance Management Act (cap 412A) section 161

Statutes – legislative process – requirement of publication of statutes in the Kenya Gazette – county legislation - whether county legislation could be deemed to have come into effect if it had not been published in the Kenya Gazette - whether the Muranga County Finance Act 2013 was unconstitutional for failure to comply with the constitutional and statutory requirements of publication in the Kenya Gazette - Constitution of Kenya article 199(1); County Governments Act (cap 265) section 25; Public Finance Management Act (cap 412A) section 161; Constitution of Kenya articles 209 and 210

Brief facts

The petitioner, Kakuzi PLC, challenged the imposition of agricultural cess under the Muranga County Finance Act 2013, arguing that it was unconstitutional and violated statutory provisions. The cess, levied on tea and fruits at 1% of turnover, was retroactively demanded from 2013 to 2017. Kakuzi contended that the County Government of Muranga lacked authority under Article 209(3) of the Constitution and the Crops Act to levy the cess and that the Finance Act was invalid as it had not been published in the Kenya Gazette as required under Article 199(1). The respondents defended the cess, asserting it was within their mandate.

Issues

  1. Whether county governments had the power/mandate to levy agricultural cess.
  2. Whether the cess was a tax or charges for the services rendered by the county government.
  3. Whether the Crops Act authorized county governments to levy cess as a tax on agricultural produce or limited their powers to specific fees for agricultural development.
  4. Whether county legislation could be deemed to have come into effect if it had not been published in the Kenya Gazette. 
  5. Whether the Muranga County Finance Act 2013 was unconstitutional for failure to comply with the constitutional and statutory requirements of publication in the Kenya Gazette.

Held

  1. The County Finance Act had not been gazetted (published) in the Kenya Gazette as required under article 199 of the Constitution and that to cure the defect the respondent published the same in the Muranga County Gazette Supplement.
  2. The Constitution was to be interpreted in a manner that promoted its purposes, values and principles. In determining whether a statute was unconstitutional, the court must determine the object and purposes of the impugned statute.
  3. Article 210 of the Constitution provided that no tax or licencing fee may be imposed waived or varied except as provided by legislation and section 161 of the Public Finance Management Act provided that a County Government shall ensure that tax imposition or any other revenue raising measures shall conform to article 209 (5) of the Constitution or any other legislation. The Constitution only allowed the counties to levy two kinds of taxes; property and entertainment; any other charges must be guided by the fourth schedule to the Constitution, which was they must be providing services.
  4. Cess was a tax on the movement of agricultural produce and applies to farm produce, livestock and products marketed in outlets managed by Counties or on transit within the County. Cess as was defined under the Finance Act as a tax. The cess was a tax and having not been authorised by national legislation was in violation and to that extent unconstitutional.
  5. Section 17 of the Crops Act authorised the counties to charge fees for the development of agricultural crops within the county, development and regulations of scheduled crop market within the county, issuance of licenses to any person trading in scheduled crops, a clear reading of the Act did not authorise the respondent to charge cess as a tax on the agricultural produce.
  6. The Finance Act was not published as required in law for it to become operative and therefore even if the respondent was authorised to levy cess, then the same was in violation of article 199(1) as read with article 260 of the Constitution and section 25 of the County Government Act which specifically provided that county legislation will only come into force on the fourteenth day after its publication in the Kenya gazette unless the legislation stipulates a different date.
  7. It was unlawful for the respondent to demand payment of agricultural cess from the petitioner under a County Act which had not been published as required and to that extent the said demand was null and void.

Petition allowed.

Orders:

  1. Declaration that the Muranga County Finance Act 2013 was unconstitutional and therefore null and void as against the petitioner.
  2. The demand letters dated May 13, 2013 and June 3, 2015 directing the petitioner to remit cess to the respondent was quashed.

 

 

A delay of 5 years in processing a citizenship application is inordinate and a violation of the right to fair administrative action.

Headnote:      The petition arose from the petitioner’s claim to Kenyan citizenship by birth and the alleged violation of his constitutional rights by the respondents. Despite being born to a Kenyan mother, the petitioner became a United Kingdom citizen and later sought to regain his Kenyan citizenship under article 14(5) of the Constitution. His application, filed in 2017, remained unprocessed for over five years. The petitioner challenged the respondents’ inordinate delay and their declaration of him as inadmissible, which barred him from entering Kenya. The court determined that the delay violated article 47 of the Constitution, and ordered the respondents to expedite the application process.

Egal v Director General of Kenya Citizens and Foreign National Services & 2 others (Petition E127 of 2023) [2024] KEHC 183 (KLR) (Constitutional and Human Rights) (19 January 2024) (Judgment)

Neutral Citation: [2024] KEHC 183 (KLR)

High Court at Nairobi

LN Mugambi, J

January 19, 2024

Reported by John Ribia

Citizenship Law – renounced citizenship – renounced citizenship by birth under the repealed Constitution due to lack of dual citizenship – status of such a person – application for dual citizenship under the Constitution of Kenya, 2010 - whether a person who was a citizen by birth who renounced their Kenyan citizenship under the repealed Constitution due to the lack of dual citizenship then was automatically entitled to citizenship rights under the Constitution of Kenya, 2010 or whether it was subject to a formal application process - what did a person who renounced their Kenyan citizenship under the repealed Constitution due to lack of dual citizenship need to prove to regain their citizenship - whether the Director General of Kenya Citizens and Foreign National Services violated the right to fair administrative action of the petitioner by declaring the petitioner a prohibited/inadmissible person and issuing red alerts, without providing specific reasons or evidence to justify such actions - whether a person who was a citizen by birth who renounced their Kenyan citizenship under the repealed Constitution possession of a Kenyan birth certificate and national identity card, despite not having regained Kenyan citizenship, casted doubt on the authenticity of those documents and the integrity of the administrative processes involved - whether the High Court had the mandate to assess the merits of an application to regain Kenyan citizenship or whether this responsibility exclusively lies with the Cabinet Secretary as provided under section 10 of the Kenya Citizenship and Immigration Act - whether the High Court had the power to direct that was required under article 14 (5) of the Constitution. Conferment would only be done once proof of previous Kenyan Citizenship had been provided and was successfully authenticated - Constitution of Kenya, 2010 articles 12(1)(a), 14(1), 39(3), and 47(2); Kenya Citizenship and Immigration Act (Cap 170) section 10; Registration of Persons Act (Cap 107) section 2

Brief facts

The petitioner was born in 1983 to a Kenyan mother. After his mother’s death in 1996, he moved to Kenya as a minor and lived with his grandmother, attending school until 2000. He later relocated to the United Kingdom, where he pursued higher education and became a citizen.

In 2012, he returned to Kenya and applied for a birth certificate as a Kenyan citizen born abroad, which he received in 2013. He also applied for a Kenyan national identity card in 2015, which was issued in 2017. Despite those documents, the petitioner was declared inadmissible by the 1st respondent in December 2016 and barred from entering Kenya without a clear explanation.

On December 20, 2017, the petitioner applied to regain Kenyan citizenship under article 14(5) of the Constitution, but the application remained unprocessed for over five years. He alleged that the delay, as well as the continued issuance of red alerts against him, violated his constitutional rights. The respondents denied any deliberate refusal to process the application and cited the sensitive nature of citizenship matters.

Issues

  1. Whether a person who was a citizen by birth who renounced their Kenyan citizenship under the repealed Constitution due to the lack of dual citizenship then was automatically entitled to citizenship rights under the Constitution of Kenya, 2010 or whether it was subject to a formal application process.
  2. What did a person who renounced their Kenyan citizenship under the repealed Constitution due to lack of dual citizenship need to prove to regain their citizenship?
  3. Whether the Director General of Kenya Citizens and Foreign National Services violated the right to fair administrative action of the petitioner by declaring the petitioner a prohibited/inadmissible person and issuing red alerts, without providing specific reasons or evidence to justify such actions.
  4. Whether a person who was a citizen by birth who renounced their Kenyan citizenship under the repealed Constitution possession of a Kenyan birth certificate and national identity card, despite not having regained Kenyan citizenship, casted doubt on the authenticity of those documents and the integrity of the administrative processes involved.
  5. Whether the High Court had the mandate to assess the merits of an application to regain Kenyan citizenship or whether this responsibility exclusively lies with the Cabinet Secretary as provided under section 10 of the Kenya Citizenship and Immigration Act.
  6. Whether the High Court had the power to direct that was required under article 14 (5) of the Constitution. Conferment would only be done once proof of previous Kenyan Citizenship had been provided and was successfully authenticated.

Held

  1. The Constitution of Kenya, 2010 (the Constitution) was a departure from the repealed Constitution in that it allowed dual citizenship which was not possible in the repealed Constitution. Previously, if one became a citizen of another country, he was required to renounce his Kenyan citizenship. That was no longer the case. Under the Constitution, Kenyan citizens by birth that had lost citizenship after they became citizens of other countries could now apply to regain their Kenyan citizenship.
  2. The petitioner was born of a Kenyan mother before the effective date outside Kenya. The petitioner became a citizen of United Kingdom. The repealed Constitution did not permit dual citizenship. He could not become a Kenyan citizen. By becoming a citizen of United Kingdom, he had forfeited his Kenyan Citizenship. Nevertheless, it was possible to regain his citizenship. By dint of article 14(5) of the Constitution, that did not occur automatically as it was subject to an application by the person concerned.
  3. The petitioner could not claim that he was a Kenyan citizen unless and until the application referred to in article 14 (5) of the Constitution had been made and fully processed. The Constitution was silent on where the application under article 14 (5) was to be made. The procedure and the requirements for the application were provided for in section 10 of the Kenya Citizenship and Immigration Act.
  4. The two major requirements specified in section 10 (2) of the Kenyan Citizenship and Immigration Act were that: the applicant was required to attach proof of previous Kenyan citizenship and the proof of citizenship of the other country. In regard to previous Kenyan citizenship, it meant that such an applicant must demonstrate to the satisfaction of the Cabinet Secretary concerned that he once was, or was previously qualified to be a citizen of Kenya by birth save for the legal limitations that existed to bar dual citizenship at the time. The Cabinet Secretary concerned has a responsibility of verifying the evidence provided to ensure that it was credible hence there no such thing as automatic conferment of citizenship. The respondents were not mandatorily required to accord citizenship status as no consideration was required under article 14 (5) of the Constitution. Conferment would only be done once proof of previous Kenyan Citizenship had been provided and was successfully authenticated.
  5. The court could not be the one to undertake the task assessing the sufficiency and the quality of proof provided by the petitioner which was part processing the application. That was a statutory responsibility given to the 1st respondent through the Cabinet Secretary concerned under section 10 of the Kenya Citizenship and Immigration Act.
  6. The acquisition of the Certificate of Birth by a Kenyan citizen born abroad by the petitioner and the subsequent issuance to him of the Kenyan National Identity Card prior to regaining his Kenyan citizenship was highly irregular since a Kenyan Identity card could only be issued to a citizen. The 1st respondent was thus justified in casting doubts on the validity of those two documents that the petitioner had presented in support of his application to regain citizenship.
  7. The court declined to consider the merit of the application as the primary responsibility of processing an application to regain Kenyan Citizenship lay with the Cabinet Secretary concerned. The intervention by the court cold be raised if there was manifest injustice in the process such as the respondent’s deliberate refusal to perform the statutory mandate of considering the application, the respondent acting outside its legal mandate that is given, or considering the application but arriving at an unreasonable or arbitrary decision.
  8. The status of citizenship conferred one with a bundle of privileges and rights. Meticulous scrutiny to detect fraudulent cases to ensure that only genuine cases were approved was necessary. For the applicants, prolonged delay in processing their applications in a way also denied them the opportunity to enjoy the rights as citizens. It was important to strike a balance between the interests of the state to protect itself from hastily processing such applications and making mistakes and the rights of the applicants to have their applications considered expeditiously.
  9. In determining if the delay complained of is unreasonable, the court must examine the length of delay, reasons for the delay, the conduct of the party complaining about the delay and finally, whether real prejudice had been demonstrated by the petitioner arising from that delay. It was five years since the petitioner made the application. It was acknowledged by the respondent in April, 2023. Although there was no time limit given for processing such applications, a delay of five years to process an application was such a long period to keep an applicant waiting.
  10. The 1st respondent had no specific reasons, just general reasons. The need for extra caution because matters of citizenship were sensitive, no more. The respondent had never reverted to the petitioner asking for supply of any additional information or clarification on any information he had given. The reasons for such long delay by the respondent were not intrinsically convincing. That was an inexcusable slackness.
  11. Nothing so far demonstrated that the petitioner had had his fair share of blame in the matter. He stated he submitted all what was required in good time.
  12. The petitioner demonstrated that he had suffered untold prejudice due to the inordinate delay. He had been barred from setting foot in Kenya. He had relatives he could not visit. Assuming that he was a citizen, an order barring from visiting Kenya would not arise. His right of movement had been curtailed. Article 4 (2) the Constitution provided that if a right or fundamental freedom of a person had been or likely to be adversely affected by administrative action, the person had the right to be given written reasons for the action. Despite writing to the 1st respondent, no written reasons had been provided.
  13. The 1st respondent had inordinately delayed considering the petitioner’s application of regaining of citizenship which was a violation of article 47(1) of the Constitution and section 4 of Fair Administrative Actions Act that entitled every person the right to administrative action that was expeditious. Moreover, the refusal to give written reasons for the action which had out rightly affected the petitioner’s right of movement violated article 47(2) of the Constitution.
  14. One of the requirements that must be present for one to be declared an inadmissible person was that the person must not be a Kenyan Citizen. The petitioner was not a Kenyan Citizen until and unless the application to regain Kenyan Citizenship under article 14(5) of the Constitution fully processed. Having been a Citizen of another country before 2010, he could not at the same time be a Kenyan Citizen as dual citizenship was not allowed then. He must first apply and the application was subject to proof of his previous citizenship. The acquisition of the identity card was therefore, irregular.
  15. The reason that the respondent gave in the notice to remove him was a blanket reason that did not enumerate any of the specific reasons under section 33(2) of the Act. Failure to specify the reason for the petitioner’s removal, made the notice vague. The petitioner ought to have been told at the point of expulsion/removal the exact reason for such removal.
  16. Even assuming it was a security report that advised the expulsion of the petitioner, which due to sensitive nature of its contents, could not be publicly revealed, there was no attempt made to brief the court. It was impossible to tell whether such a report existed.
  17. The petitioner’s rights were violated especially the failure to vividly give him the reasons for his removal yet he had been residing in Kenya. The actions by the respondent against the petitioner were taken arbitrarily in the absence of reasonable grounds to justify the same.
  18. Damages were awarded at the discretion of the court. The petitioner made a serious admission. He was possession of documents issuable to Kenyan citizens whilst his application for regaining of citizenship was still pending. That was highly irregular. It was not appropriate to grant damages to the petitioner taking into account the above conducts.

Petition partly allowed.

Orders:

  1. Declaration issued that by arbitrarily declaring the petitioner an inadmissible person without specifying the reasons to him and further failing to provide him with the written reasons for the decision even after he had sought the same, the 1st respondent violated the petitioner’s right to fair administrative action under article 47 (2) of the Constitution.
  2. Declaration issued that there had been inordinate delay by the respondents in processing the petitioners application to regain citizenship which was a violation petitioner’s right to an expeditious administrative action under article 47 (1) of the Constitution and section 4 of the Fair Administrative Actions Act.
  3. An order of mandamus was issued compelling the 1st respondent to expedite the processing of the application for regaining of Kenyan Citizenship by the petitioner and advise the petitioner on the results of his application not later than the six months from the date of the instant order.
  4. Each party was to bear its own costs.