Govt Ordered to Pay Ksh 3.5M After Illegal Deportation of Kenyan Businessman to Somalia

The High Court has directed the government to pay Ksh 3.5 million to businessman Abdiqiadar Omar Osman as a form of compensation after establishing that his deportation to Somalia was carried out in breach of the constitution and disregarding constitutional procedures.

In a decisive judgment, Justice Bahati Mwamuye ruled that Osman is a Kenyan citizen by birth and that the actions taken against him by state agencies were unconstitutional.

The court found that authorities acted outside the bounds of the law when they arrested and removed him from the country.

The case stemmed from an incident in May 2018 when Osman was apprehended while traveling from Kampala to Kenya.

The court determined that the arrest was arbitrary and did not meet the constitutional threshold required for lawful detention.

Arrest and Deportation Without Due Process

Through his advocate, Danstan Omari, the businessman argued that he was neither informed of the reasons for his arrest nor granted access to legal representation.

Secondly, he was not presented before a court within 24 hours, as provided by Article 49 of the Constitution.

Instead of going through the formal legal process, the suspect was allegedly taken to the immigration offices at Nyayo House and subsequently deported to Somalia without going through the extradition and formal deportation order processes.

Justice Mwamuye found that the mode of removal of Osman from Kenya was a violation of his right to liberty, dignity, and due process.

The state officers are expected to be guided by the provisions of the Constitution, which do not allow bypassing due process in immigration control.

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Citizenship Cleared, but Mix-Up over Identity Surfaces

At the heart of the ruling was evidence that Osman holds a Kenyan birth certificate and a national identity card, documentation which, the court held, affirms his citizenship status.

The judge also discussed the confusion caused by the similarity of Osman’s name to another person’s.

The court ruled that the authorities’ failure to properly check the identity documents before deporting him was a serious administrative mistake.

The judgment was therefore to have Justice Mwamuye issue an order of certiorari nullifying the decision that led to Osman’s deportation.

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The court further granted an order of mandamus directing the government and its agents to permit him peaceful entry, residence, and the conduct of his business activities within Kenya.

Additionally, an order of prohibition was issued wherein the state authorities were restrained from arresting, detaining, deporting, and otherwise interfering in any way with his presence and work in the country.

The money received as general damages as well as aggravated damages, amounting to Ksh 3.5 million, will attract interest.

The government was further ordered to bear the costs incurred in the petition, a sharp rebuke by the judicial system to executive excesses.

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