Kenya: Samira Tariq Qureshi v Cabinet Secretary for Ministry of Interior and Co-ordination of National Government & 2 others
Published: 7/Nov/2019
Source: High Court of Kenya (Nairobi)
[2019] eKLR
Miscellaneous Civil Application 406 of 2018
JUDGMENT
1. By a Notice of Motion dated 22/7/19 upon leave granted on 17/7/19, the ex parte applicant seeks mandamus to compel her registration as a Kenyan Citizen as follows:
1. THAT AN ORDER OF MANDAMUS do issue directed jointly and severally to the Cabinet Secretary for the Ministry of Interior and Coordination of National Government and the Director of the Department of Immigration Services, to issue all relevant and necessary documents for the registration of the Applicant as a Kenyan Citizen within thirty (30) days from the day this order is issued by the Honourable Court in the name of the Applicant in respect of her formal and official application (Immigration File Number R. No. 168252) made on 6th January, 2015 under Forms 7, 9 and K of the Kenya Citizenship and Immigration Act, 2011.
2. THAT such further and other reliefs that the Honourable Court may deem just and expedient to grant.
3. THAT costs of and incidental to this Application be paid by the Respondents.
[…]
Determination
8. It is clear that the ex parte applicant has a legal right and, consequently, the Respondents a legal duty to register her, if she meets the qualifications of Article 15 (1) of the Constitution that:
“A person who has been married to a citizen for a period of at least seven years is entitled on application, to be registered as a citizen”.
9. At paragraph 4 of the Replying Affidavit, the Respondent admitted that the applicant submitted her application for citizenship on 22/1/2015 and at paragraph 6 thereof asserted that the application could not be traced in her file prompting the 2nd Respondent at paragraph 7 to write by letter dated 22/10/2015 requesting her to submit her application.
10. The parties confirmed during the court appearance of 4/3/19 that the 2nd Respondent had been supplied with fresh documents and on the court appearance of 3/4/2019, Mr Odhiambo for Mr Munene for the Respondent confirmed that “the citizenship committee will be sitting next week to consider the applicant’s application”.
11. While the Court cannot usurp the power of the Citizenship Committee of the 2nd Respondent to consider and approve the applicant’s application for citizenship (See R v. KRA ex p. Yaya Towers Ltd (2008) eKLR the circumstances of this case are such that the 2nd Respondent has taken over 4 years to consider the applicant’s application. This clearly offends the applicant’s right to Fair Administrative Action under Article 47 (1) of the Constitution for lack of “expeditious, efficient, lawful reasonable and procedurally fair” process.
12. I respectfully agree with Odunga, J, in S. N. v Cabinet Secretary for the Ministry of Interior and co-ordination of National Management Services, Director General, Kenya Citizens & Foreign Nationals Management Services & Attorney General [2016] eKLR that a delay of 4 years in a citizenship application is unreasonable, as follows:
“Whereas there is specific timeline within which the application for citizenship ought to be considered Article 259 (8) of the Constitution provides that if a particular time is not prescribed by this Constitution for performing a required act, the act shall be done without unreasonable delay, and as often as occasion arises. More than 4 years delay in processing an application for citizenship without informing the applicant at what stage such application has reached is clearly unreasonable.”
See also R v. Cabinet Secretary for Ministry of Interior & 2 Ors exp. Patricia Olga Howson (2013) eKLR.
13. The 2nd Respondent did not raise any objection in the merits of the applicant’s application, merely averring that the original application had been misplaced and calling for re-submission of the application. Although, as urged by Counsel for the Respondent, the purpose of judicial review proceedings is to ensure fair treatment of the individual and not to ensure that the authority reaches a correct conclusion in the eyes of the court, citing Seventh Day Adventist Church (E.A) Ltd v. Permanent Secretary. Ministry of Nairobi Metropolitan Development and Anor. (2014) eKLR, it would appear that the 2nd Respondent has no defence to the claim for registration of citizenship by the applicant.
14. However, as the mandate to register citizenship lies the 2nd Respondent, this Court cannot properly direct that the applicant be registered as a citizen as that would be usurping the power of the Immigration Authority. The Court may, however, properly direct by an order of Mandamus, not the grant of citizenship, but the consideration of the application for citizenship within a reasonable time consistent with the right to Fair Administrative Action under Article 47 (1) of the Constitution.
Orders
15. Accordingly, for the reasons set out above, the Court make an order for Mandamus compelling the 2nd Respondent to consider the applicant’s application for citizenship within the next 30 days.
16. The 2nd Respondent has unreasonably delayed in the consideration of the applicant’s application for citizenship and the ex parte applicant is entitled to costs of the application to be paid by the 2nd Respondent.
Read on KenyaLaw: http://kenyalaw.org/caselaw/cases/view/188025