Source: Kenya Court of Appeal
Constitutional Petition No.51 of 2018
(An application seeking stay of execution of the decision and orders made in High Court Misc. Criminal Application No. 57 of 2018 on 15th February 2018 by Hon. Justice L. Kimaru, pending hearing and determination of the Intended Appeal)
This ruling relates to four applications, all brought against one Miguna Miguna (Miguna), that were filed between 19th and 21st February 2018 following a ruling delivered on 15th February 2018 by Kimaru, J. Those applications, which were consolidated by consent of the parties, were by Dr. Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government (C.S); the Director of Criminal Investigation (DCI) jointly with the Inspector General of the National Police Service (I.G); the Director of Public Prosecutions (DPP) and by Maj. (Rtd.) Dr. Gordon Kihalangwa who is the Director of Immigration Services (DIS). Also named as a respondent in two of the applications is the Law Society of
It is common ground that the learned Judge delivered that ruling upon hearing that Miguna, who had been the subject of about half a dozen orders by the learned Judge, and then some by other courts, aimed at securing his liberty and/or production before the learned Judge, had instead been dramaticallyexpelled, deported or otherwise conveyed out of the country. This was on the evening of the 6th February 2018 when he was forcefully deported to Canada aboard KLM Flight Number 0566 destination Amsterdam, then onward to Ontario. He was so deported by officers of the Immigration Department who had taken him into custody at the Inland Container Depot at Embakasi from police officers who had driven him there from the Magistrate’s Court at Kajiado. Those officers had been expressly directed by the learned magistrate Hon. Mulochi, R.M., to produce Miguna before the learned Judge who, in the meantime, upon being informed, (duped, it would later emerge,) that Miguna had been brought to the Milimani Law Court”s, ended up waiting within the court precincts up to well beyond 7pm in the night, for a man who was not to be produced notwithstanding the plethora of court orders.
We also do not see how the return of Miguna portends a clear and present danger of social upheaval or a breakdown of law and order. Beyond the possibility that those whose acts were invalidated by the learned Judge may suffer some embarrassment, we are unable to discern any real loss or prejudice. Moreover, there is nothing irreversible that could occur as a result of those orders subsisting while the appeals intended are processed, prosecuted and decided by this Court. If anything, there is something to be said about a Kenyan born litigant being accorded the opportunity, consistent with his right to a fair trial, to return to the country of his birth and attend to the cases filed by and against him.
Download full judgment from Kenya eLaw: http://kenyalaw.org/caselaw/cases/view/148784/