Interior Cabinet Secretary Fred Matiang’i has moved to the Court Appeal to challenge High Court orders directed at him over the controversial deportation to Canada of self-declared “general” of the National Resistance Movement (NRM), Dr Miguna Miguna.
Dr Matiang’i, through lawyer Fred Ngatia, has said High Court Judge Luka Kimaru issued orders against him when he was neither a party to the case nor was he afforded any opportunity to respond to any accusations against him.
The lawyer explained that by virtue of the fact that the Director of Criminal Investigations (DCI), and the Inspector General of Police (IG) are officers within 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.
It should also not be assumed that he acted in corroboration with the DCI and the IG, he says.
Further, Dr Matiang’i argues that the issue of deportation of Dr Miguna is pending before another High Court judge and cannot be adjudicated upon without a valid hearing.
“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,” said lawyer Ngatia in the 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 Miguna was deported at night on February 6, put into a KLM flight departing Nairobi for Amsterdam minutes to 10pm.
Justice Kimaru Thursday ruled that the orders that Dr Miguna be produced in court had not been complied with, and that the DCI and the IG were in contempt of court.
Dr Matiang’i had on February 6 issued a declaration on the advice of the Director of Immigration stating that Dr Miguna is not a citizen of Kenya and should be removed to Canada in national interest.
NOT A CITIZEN
“Miguna Miguna who is not a citizen of Kenya and whose presence in Kenya is contrary to national interest, be removed from Kenya to his country of origin Canada,” said Dr Matiang’i in the declaration made under Section 43 of the Kenya Citizenship and Immigration Act, 2011.
Dr Miguna was also to remain in prison custody while arrangements for his removal were being done.
However, Justice Kimaru Thursday ruled that the declaration will remain null and void and of no legal effect because it was issued in contempt of court.
The court also ordered that the Director of Immigration surrenders Dr Miguna’s passport to the deputy registrar of the High Court within seven days.