Source: High Court of Kenya (Mombasa)
(Petition E007 of 2021)  KEHC 110 (KLR) (Judgment)
The petitioner lost his identity card in 1989 and it was replaced within three days after the petitioner’s father paid some facilitation fee for the replacement. However, in 1990 the petitioner was arrested and charged for allegedly undertaking double registration for his identity card but he was acquitted. He stated that since 1990 he had applied for a replacement of his identity card and visited the 1st respondent’s office to no avail. In the year 2010, the petitioner was informed that he had been blocked in the ID system because of the alleged double entry in 1989. During the Covid-19 pandemic, the petitioner stated that he was unable to receive donations from the Government because he had no identity card. The petitioner alleged that the respondents had acted irrationally, unreasonably and contrary to his legitimate expectation and in violation of the articles 10, 47, 50 of the Constitution, by refusing to issue him with an identity card when in fact, his citizenship status had been confirmed. The petitioner sought various court orders including the replacement of his identity card.
(i) What was the effect of filing grounds of opposition without filing a replying affidavit as a response to a petition?
(ii) Whether double registration qualified as a ground for revocation of citizenship under the Constitution.
(iii) Whether a decision not to replace an identity card citing double registration, which was made without affording the affected person a hearing, was a violation of the right to fair administrative action and amounted to constructive revocation of citizenship.
- The respondents did not file a replying affidavit to challenge the facts as alleged by the petitioner. They only filed grounds of opposition that addressed issues of law. The effect was that the facts as stated by the petitioner were uncontroverted.
- The petitioner’s citizenship status was supported by his father’s identity card, his school leaving certificate, a copy of his lost identity card and a letter from the Regional Intelligence Coordinator at the Coast Region which confirmed that he was a Kenyan citizen.
- The grounds for revocation of citizenship were provided for in article 17 of the Constitution. Double registration was not one of those grounds. The 1st respondent’s actions in denying the petitioner a replacement of his lost identity card on account of double registration amounted to constructive revocation of the petitioner’s citizenship. That was not a power or discretion conferred by article 17 of the Constitution.
- Citizenship could be revoked by the relevant Cabinet Secretary under section 21 of the Kenya Citizenship and Immigration Act on the basis of grounds enumerated under article 17 of the Constitution. Therefore, even where there was a basis for revocation of citizenship, the law had to be followed. The provision required the Cabinet Secretary to give written notice and inform the person whose citizenship was due to be revoked, of the intention to revoke their citizenship, as well as the reasons for the action. The Cabinet Secretary had to then provide the person who had received such notice with an opportunity to present reasons why his or her citizenship should not be rescinded.
- The petitioner had proved on a balance of probabilities that he was condemned unheard by the 1st respondent and therefore, his right to a fair hearing and the right to a fair administrative action guaranteed under articles 47 and 50 of the Constitution were infringed by the 1st respondent.
- Article 23(3) of the Constitution empowered the court to grant appropriate reliefs in any proceeding seeking to enforce fundamental rights and freedoms. Depending on the circumstances of each particular case, the relief could be a declaration of rights, an interdict, a mandamus, or such other relief as was required to ensure that the rights enshrined in the Constitution were protected and enforced. If it was necessary to do so, the court could even have to fashion new remedies to secure the protection and enforcement of fundamental rights and freedoms.
- Considering the petitioner’s case and the applicable law, the petitioner was entitled to an award of damages whose quantum was at the court’s discretion. An award of Kshs. 500,000 as damages was reasonable under the circumstances.
I. A declaration that the petitioner was a citizen of Kenya and that he was entitled to all the rights and privileges provided for under Chapter three of the Constitution of Kenya, 2010.
II. A declaration that the respondents were in violation of articles 10, and 47 of Constitution by failing to issue the petitioner with a duplicate of his lost identity card.
III. An order compelling and directing the 1st respondent to forthwith replace the petitioner’s lost identify card number 8470963.
IV. The petitioner was awarded Kshs. 500,000 for the violation of his right to a fair administrative action.
V. Costs to the petitioner.
Download full judgment from KenyaLaw: http://kenyalaw.org/caselaw/cases/view/219205/