DEPORTATION

Miguna wins round one in deportation case against airline, state

Judge Korir said the activities that occurred outside the Kenyan jurisdiction were because of violations that had been committed in the country.

In Summary

• Miguna sued Lufthansa and Air France in February last year for allegedly stopping him from boarding the flight to Kenya due to a red alert issued by the Kenyan government.

• Justice Korir dismissed an application by the AG asking the court to terminate Miguna’s case because the violation of his rights were committed outside Kenya.

Lawyer Miguna Miguna.
Lawyer Miguna Miguna.
Image: COURTESY

Miguna Miguna has won the first round in the case he sued two airlines and the Kenyan government for violating his rights.

Miguna sued Lufthansa and Air France in February last year for allegedly stopping him from boarding the flight to Kenya due to a red alert issued by the Kenyan government.

In his ruling, Justice Weldon Korir dismissed an application by the Attorney General asking the court to terminate Miguna’s case because the violation of his rights were committed outside Kenya.

However, the court noted that the two airlines did not allow him to board the plane because of issuance the red alerts.

Judge Korir said the activities that occurred outside the Kenyan jurisdiction were because of violations that had been committed in the country.

“I also do not think that a Kenyan whose rights are violated in a foreign jurisdiction by the Kenyan state can be turned away from our courts on the premise that there is no constitutional remedy for such violations,” the court ruled.

Judge Korir also ruled that both airlines who supported the AG in asking the court to dismiss Miguna’s case cannot run away from the matter at this stage.

“I do not think that Lufthansa and Air France can escape liability, if the petitioner can establish the alleged violations and the nexus between the state of Kenya and the two respondents in the commission of the violations,” he said.

The court said the two airlines can only exonerate themselves after their defences are considered alongside Miguna’s case.

The court also disagreed with the AG’s argument that Miguna had filed a similar case  that had already been determined by the High Court

“The current petition is primarily premised on the events that followed the court’s judgement in the previous petition. Therefore, the issues in the two petitions are not the same,” the court ruled.

Justice Korir said Miguna can file as many petitions as he wants  until a time the violations will cease.

“He is entitled to sue as many times as the number of the incidents of the violations. He can only stop suing the violators of his constitutional rights and fundamental freedoms when the violations cease,” he said.

In the case, Miguna wants the court to find that the decision by the respondents to stop him from travelling to Kenya was illegal.

He wants the court to order the airlines and the state to facilitate his unconditional re-entry into the country.