Kenya: AG Loses Bid to Block Miguna's Case

26 February 2021

The High Court has declined a request by Attorney-General Kihara Kariuki to dismiss a case filed by exiled Kenyan lawyer Miguna Miguna against two international airline companies -- Lufthansa Group operating as German Airlines and Air France.

In his preliminary objection against the case, the Attorney-General had argued that the court has no authority to address the issues raised by Mr Miguna in the petition.

He contended that the court has no jurisdiction to adjudicate over disputes outside the territory of Kenya and that the petition should be dismissed as it is premised on hearsay statements by a party other than Mr Miguna.

The AG further stated that the court does not have jurisdiction to issue prerogative orders against private parties and that the matters in issue had been addressed in another case.

His objection was supported by the two airlines who submitted that Mr Miguna is, in effect, urging an extraterritorial application of the Constitution and the Bill of Rights as the actions complained of took place outside Kenya.

They asked whether the rights and freedoms under the Constitution can be applied beyond the borders of Kenya and against corporate entities which are incorporated in other states.

But Justice Weldon Korir said the objection was not proper, noting that the violations complained of by Mr Miguna happened as a result of the issuance of the "red alerts". He explained that Mr Miguna's case is that the two airlines did not allow him to board their flights because of "red alerts" issued by the Kenyan State.

"Any activities that occurred outside the Kenyan jurisdiction were in compliance and furtherance of violations that had been committed in Kenya. 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," said Justice Korir.

In his view, the two international airlines cannot escape liability if Mr Miguna can establish the alleged violations and the nexus between the State of Kenya and the airlines in the commission of the violations.

He said they can only exonerate themselves after their defences are considered alongside Mr Miguna's case.

On the argument that the case is "res judicata" (issues raised by the petitioner had been determined in another case), the court said there is no doubt that the petition discusses the same sequence of events that were in another case filed by the controversial lawyer in 2018.

However, he said the current petition is primarily premised on the events which followed the court's judgment in the previous petition. Therefore, the issues in the two petitions are not the same.

Justice Korir observed that Mr Miguna's case is that the Kenyan State has violated and continues to violate his constitutional rights and fundamental freedoms.

"That being the case, 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. The doctrine of "res judicata" is not applicable in such circumstances," said Justice Korir.

In the case, Mr Miguna asserts that his right of citizenship, his right to identity documents including a passport and movement to enter and reside anywhere in Kenya as provided for in Articles 12, 14 and 39(3) of the Constitution have been violated.

He claims the violators are the two airlines, the Attorney-General, Cabinet Secretary Ministry of Foreign Affairs, Director-General Kenya Civil Aviation Authority (KCAA), Managing Director Kenya Airports Authority and the Cabinet Secretary Ministry of Interior and Co-ordination of National Government.

Through lawyer Dr John Khaminwa, he wants the landing rights of aircraft owned or operated by the two airlines in Kenya suspended.

Lawyer Khaminwa indicates in court documents that the prayer is because the airlines facilitated Mr Miguna's illegal, arbitrary and forced exclusion from entering Kenya despite a clear ruling and court orders.

He is seeking orders compelling Captain Gilbert Kibe (Director-General, Kenya Civil Aviation Authority) and Alex Gitari (acting Managing director, Kenya Airports Authority) to restrain any aircraft or airborne vessel affiliated to the two airlines from landing at any airport or airstrip in Kenya, except for the purpose of facilitating his client's transportation back to the country.

"The airlines have willingly, and with great alacrity and glee, allowed to be recruited as agents of impunity and oppression by the Attorney-General and Cabinet Secretary for Foreign Affairs in order to contravene the Kenya Constitution, Kenya law, the laws of the European Union, international law, including international aviation law and international human rights law," he says.

jwangui@ke.nationmedia.com

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