Nairobi — Justice Luka Kimaru has faulted the State for deporting self-proclaimed general of National Super Alliance's National Resistance Movement, Miguna Miguna, declaring a deportation order issued by Interior Cabinet Secretary Fred Matiangi null and void.
In a ruling delivered Thursday morning, the High Court judge also found Inspector General Joseph Boinnet and the Director of Criminal Investigations George Kinoti to have treated the court with contempt after failing to produce Miguna in court on Tuesday last week, as directed.
"This court will not convict the third and second respondent (Boinnet and Kinoti) but will give them an opportunity to assist the court in purging the contempt of the orders of the court that they've been found by this court to have committed," Justice Kimaru ruled.
He explained imposing a fine on the two or committing them to prison "may not serve the ends of justice in the particular circumstances of this case."
Justice Kimaru said the circumstances under which police surrendered Miguna to immigration officials for deportation were a clear demonstration of collusion to defeat the ends of justice.
"The second and third respondents were acting in coordination with the Director of Immigration. The decision to take the applicant (Miguna) to Inland Container Depot Police Station at Embakasi instead of producing him before the court was with a view to facilitating the Director of Immigration to have his (Miguna) custody," the judge stated.
"It was not by chance that immigration officials 'found' the applicant at the precincts of the said police station. This was planned. It was also in contempt of the orders of this court," Justice Kimaru expounded.
The judge ordered Boinnet and Kinoti to make a written undertaking within seven days pledging to comply and give effect to court orders so as to purge their contempt.
The immigration department was also directed to surrender Miguna's Kenyan passport to the court within seven days.
The ruling came at a time when Boinnet and Kinoti failed to appear in court to show cause for contempt.
The Office of the Director of Public Prosecutions had asked the court on Tuesday to rescind summonses against the two saying they were scheduled to attend a National Security Council meeting on Thursday.
Principal Prosecution Counsel, Duncan Ondimu, told the court that affidavits filed by the duo explaining Miguna's deportation as ordered by the court on Wednesday last week were sufficient.
In the said affidavits, the police chiefs told the court that Miguna had actually been set free in compliance with a court order issued by Justice Kimaru on Tuesday last week.
"I was informed by my officers that the applicant (Miguna) was released vide OB/6/2/18," Kinoti stated in his affidavit, an account corroborated by Boinnet.
According to an affidavit filed by Department of Immigration Director, Gordon Kihalangwa, immigration officials relied on a deportation order issued by the interior ministry to expel Miguna from the country.
"The applicant (Miguna) was arrested within the precincts of Inland Container Depot, in Embakasi, and taken to the Jomo Kenyatta International Airport for purposes of deportation and did board KLM Airline Flight Number KL0566 to Toronto Canada via Amsterdam," Kihalangwa stated as he told the court that Miguna had irregularly acquired his Kenyan passport.
Kihalangwa denied being in contempt of court saying he was not aware of an order issued by Justice Kimaru since the Department of Immigration was not a party to court proceedings which resulted in the issuance of the order.
In his ruling on Thursday however, Justice Kimaru warned Kihalangwa's action could be treated as contempt since it was evident that he aided Boinnet and Kinoti in disobeying the court.
Miguna was arrested on February 2 in a crackdown of NASA members behind the administration of an oath on Raila Odinga on January 30 as the "People's President."
Miguna held incommunicado until February 6 when he was produced before a Kajiado Magistrate Court to answer to charges of treason.
He denied taking a plea citing pending orders from a Nairobi court which had granted him a Sh 50,000 cash bail.
Justice Kimaru suspended all criminal proceedings against Miguna when his release on from police custody became elusive.