Ethiopian businessman fights Fred Matiang'i deportation order

An Ethiopian businessman who was declared a prohibited immigrant by Interior Cabinet Secretary Fred Matiang’i has gone back to court seeking to reverse the decision.

Mr Abdulahi Said Salad lost the application seeking to quash the decision in December last year, but he has filed another petition for review of Justice John Mativo’s ruling.

Through advocate Esther Mwikali, Mr Salad is seeking a review of the order saying that the judge mistakenly sanctioned Dr Matiang’is illegal decision, declaring him a prohibited immigrant.

Mr Salad was also placed on immigration watch-list and directed his deportation.

He wants the court to stop implementation of the order and allow him to travel to India for treatment as well as permit his entry on his return.

GLARING OMISSION

Justice Mativo dismissed the case in December after he failed to include the Attorney-General (AG) as a principal respondent in the case.

“I find glaring omissions and gaps in the ex-parte applicant’s case which raises more questions than answers on the veracity of the version he presented,” Justice Mativo said.

Justice Mativo said the court cannot completely ignore the state’s legitimate interest in the security of its borders and the integrity of its immigration systems which it achieves by regulating the admission of foreign nationals to reside and work in Kenya.

The court, the judge ruled, cannot make an order in total disregard of the Mr Matiangi’s powers and duties unless it is demonstrated beyond doubt that he acted outside his mandate.

Justice Mativo said the Constitution states that the AG is the principal legal adviser to the government and he shall represent the national government in court or in any other legal proceedings to which the national government is a party to, other than criminal proceedings.

The Judge said litigation on behalf of the national government is one of the AG’s primary duties under the Constitution in all cases where the government is directly interested.

“The omission also casts doubts on the competence of these proceedings against the government and whether under the above provisions, a government ministry is a juristic person,” Justice Mativo said.

DUE PROCESS

Mr Matiang’i said Mr Salad’s presence in Kenya was against the national interest and ordered the Ethiopian put in custody as arrangements for his removal were being made.

But the businessman said despite never having attended court or filed pleadings, the judge dismissed the case and awarded costs to the government.

“Prior to the decision, I regularly and routinely visited my doctors in India for treatment for my leg which has left me bedridden due to failed scheduled visit to India in June 2018, caused by the Minister on April 11, 2018,” he said in the application.

Mr Salad said he was informed of the court ruling and deportation order when he visited the Immigration department on August 8, 2018 to regularise his immigration status.

The Ethiopian claims he was not taken through due process.

BUSINESS INTERESTS

Mr Salad said he has lived in Kenya for 27 years and has two wives, all of whom live and own businesses in Kenya.

His woes, he claimed, were hatched by business rivals who plotted to take over his business in November 2016 when he was away for treatment in India.

When he returned to Kenya in December 2016, he was denied entry without being given reasons and was only in the country a year later on a three month’s visa.

Mr Salad said he lost his Ethiopian passport but has applied for a replacement. 

Justice John Mativo had allowed the case to proceed without the respondents but the court faulted him for not joining the AG.

He said it was upon Mr Salad to prove alleged abuse or that the minister acted illegally and there was nothing to show that he ever asked to be given reasons for his being declared a prohibited immigrant.

The judge said nothing stopped him from asking for the reasons in writing and this would have assisted the court weigh the refusal, if any or appreciate that the request was made and declined.