Matiang’i moves to appeals court to challenge order on Miguna

Thursday February 15 2018

Interior Cabinet Secretary Fred Matiang’i has appealed Thursday’s High Court ruling, which declared Nasa activist Miguna Miguna’s deportation to Canada illegal.

Dr Matiang’i, through lawyer Fred Ngatia, argued that High Court Judge Luka Kimaru issued orders against him when he was neither a party nor was he afforded any opportunity to respond to any accusations against him.

Mr Ngatia argued that by virtue of the fact that the Director of Criminal Investigations and Inspector-General of Police are officers in the Ministry of Interior and Co-ordination of National Government, an inference should not be made that he was aware of the orders made by the court.

“The High Court had no jurisdiction to issue the orders that were made which, in essence, are orders which can only be made in judicial review proceedings or a constitutional reference,” lawyer Ngatia said in court papers.

He added that the court failed to follow the law as set out in the Contempt of Court Act and the ensuing orders are, therefore, a nullity in law.

Dr Matiangi’s actions came hours after Interior Principal Secretary Karanja Kibicho, in a statement, vowed that the ruling issued by Justice Kimaru was “not in the best interest of the country”.


He said the government’s decision to deport Dr Miguna was procedural and that it was done in accordance with the law.

“Going forward, the government’s legal team handling the matter is currently reviewing the High Court ruling and will shortly be appealing this court’s decision,” Mr Kibicho said.

In the ruling, Justice Kimaru declared Dr Matiang’i’s declaration that Dr Miguna is a prohibited immigrant null and void on grounds that it was issued in contempt of orders of the court.

The judge ruled that the declaration by the Interior CS on the lawyer has no legal effect hence ordered that his Kenyan passport be surrendered to the deputy registrar of the High Court’s criminal division by Immigration boss Gordon Kihalang’wa within seven days.

The judge further ordered Inspector-General of Police Joseph Boinnet and Director of Criminal Investigations George Kinoti to personally give a written undertaking that they would comply and give effect to the orders he had just issued, within seven days.

“It is trite that any action done in contempt of the orders of the court is illegal and has no capacity of being given recognition in the eyes of the law.

"It is evident that the action taken by Mr Kihalang’wa in furtherance of the contempt is illegal, null and void hence cannot have any legal effect,” judge Kimaru ruled

In his ruling, Mr Kimaru noted that court proceedings are necessary for the rule of law and administration of justice to be effective in securing compliance with orders of the court.