Two international airline companies have been sucked into a citizenship dispute pitting Kenyan firebrand lawyer Miguna Miguna against the government.
The lawyer, who lives in exile in Canada, wants the landing rights of aircraft owned or operated in Kenya by Lufthansa Group (German Airlines) and Air France suspended, a move likely to affect business if successful.
Lawyer John Khaminwa indicates in court documents that the prayer is because the airlines facilitated Miguna's illegal, arbitrary and forced exclusion from entering Kenya despite clear court orders.
Miguna's application will come up for hearing and directions at the Milimani Law Courts in Nairobi on Monday.
Mr Khaminwa is seeking orders restraining any aircraft or airborne vessel affiliated with the two airlines from landing at any airport or airstrip in Kenya, except for the purpose of facilitating Miguna's transportation back to the country.
The orders are to be effected by Kenya Civil Aviation Authority's Director-General Gilbert Kibe and Kenya Airports Authority's acting Managing Director Alex Gitari.
"The airlines have willingly, and with great alacrity and glee, allowed [themselves] to be recruited as agents of impunity and oppression by the Attorney-General and Cabinet Secretary for Foreign Affairs to contravene the Kenya Constitution, Kenya law, the laws of the European Union and international laws including the international aviation law and the human rights law," he says.
"The two airlines are subject to the Kenya Constitution and the law because they operate their businesses in Kenya," he explains.
BACK AND FORTH
Mr Khaminwa returned to court after Miguna's return to Kenya on January 7 aborted following a red alert the government issued against him.
His return was in light of a court order of December 18, 2019 by High Court Judge Chacha Mwita, who ruled that his deportation to Canada was illegal and that his rights and his fundamental freedoms were grossly violated.
Justice Mwita also compelled the government to immediately return Miguna's Kenyan passport and any other identification documents taken from him.
Following the ruling, the lawyer purchased a ticket to travel to Kenya, from Berlin via Frankfurt via Lufthansa Flight LH 590, at 9.25pm on January 7
This was on the basis of his constitutional right as a Kenyan citizen and the court order.
But the Attorney-General and the Interior ministry refused to comply with Justice Mwita’s order, forcing him to file an urgent application on December 31, 2019 to compel compliance.
On January 6, Justice Weldon Korir issued orders restraining the agencies from interfering in any way with Miguna's re-entry into Kenya, on the basis of his identification through his national ID card or his Kenyan passport in the state in which it was delivered by government agencies to the court's registry.
On the force of the two court orders, dated December 18, 2018 and January 6, Miguna sought to check in to board a Lufthansa aircraft at Berlin airport, to travel to Nairobi via Frankfurt, Germany.
However, the court papers indicate, the airline's agents denied him the opportunity, saying they had been barred by the Kenyan government, the Office of the President of Kenya and, specifically, the Foreign Affairs CS.
They said they were under instructions not to transport him to Kenya or to any other African country.
The ban on Miguna's return to Kenya was termed a “red alert”.
On attempting to board the Air France Flight to Nairobi, the same communication was passed to him.
"In spite of the petitioner insisting to the airlines that he had valid court orders from Kenya, requiring him to return, the first and second respondent (Lufthansa and Air France) insisted they could not act on the basis of those orders," states Mr Khaminwa.
He adds that the airlines said they would only transport Mr Miguna to Kenya if they received an advisory from the Foreign Affairs CS, indicating that the one that barred them from transporting him had been vacated and that his transportation would be in order.
"The two airlines have, through their action of refusing to transport the petitioner to Kenya, while fully aware of the numerous orders of the Kenyan court, violated [his] rights and shown contempt for Kenyan courts, the rule of law in Kenya and generally," Mr Khaminwa states.
"They have demonstrated that they are overly willing to operate outside the law and facilitate violations of human rights for purely profit and business ends."
In the petition, the lawyer explains that Miguna is a Kenyan citizen by birth, born in Magina village on the shores of River Nyando in the Kano Plains, Kisumu County.
Mr Khaminwa also notes that Miguna's parents, Joshua Miguna Jomune and Margaret Sure Miguna, both deceased, were Kenyan citizens by birth, and adds that he also holds Canadian citizenship acquired through registration.
Mr Miguna is an advocate of the High Court of Kenya, admitted in 2008, and a barrister and solicitor in the province of Ontario, Canada.
He has been of good standing with the Law Society of Kenya and the Law Society of Upper Canada for the respective durations of his admission to the bar, and actively practises as an advocate in both jurisdictions.
He owns a home in Runda Estate, Nairobi, and in Kisumu County, and most of his family members reside in Kenya.
"The petitioner served as a public officer and specifically a constitutional and legal adviser to the grand coalition government between 2008 and 2012, and undertook many official foreign missions on behalf of the government of Kenya," the court documents state.
Mr Khaminwa also tells the court that the fiery lawyer was one of the candidates cleared by the Independent Electoral and Boundaries Commission (IEBC) to run for the position of governor, Nairobi County, in 2017.
Further, the lawyer says, his client was an aspirant for the Nyando parliamentary seat in the 2007 General Election, as acknowledged during party primaries of the Orange Democratic Movement (ODM).
Mr Khaminwa adds that Miguna voted in the last three general elections.
The lawyer wants the court to declare that restraining Miguna from entering Kenya, without justification and without informing him of reasons for the red alert, was deplorable, inhumane and in violation of his constitutional rights.
Arguing that the alerts are unforeseeable, the lawyer asks the court to restrain the government from issuing travel advisories against Miguna.
He is also seeking an order requiring relevant government agencies to facilitate his client's unconditional return to Kenya on a date and time, and through an airline or other mode of transportation, of his appointing.
Miguna also wants orders for him to be issued with travel documents if need be.