Qureshi v Cabinet Secretary for Ministry of Interior and Co-ordination of National Government and Others

Parties (including notable third parties)

Samira Tariq Qureshi (Applicant); Cabinet Secretary for Ministry of Interior and Co-ordination of National Government (First Respondent), Director of Department of Immigration Services (Second Respondent), Attorney-General (Third Respondent)

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Summary of Facts

The Applicant, Samira Tariq Qureshi, was a non-Kenyan national who applied for Kenyan citizenship under the Kenya Citizenship and Immigration Act 2011on the basis of being married to a Kenyan citizen for more than seven years.

The Applicant submitted her application for Kenyan citizenship on 6 January 2015 and she was issued with an acknowledgement of receipt on the same date. Having heard nothing further regarding her application for several months, the Applicant wrote to the Second Respondent (Director, Department of Immigration Services) on 11 September 2015 requesting that a Certificate of Citizenship be issued within 30 days.

According to the Respondents, the Department’s officials could not locate the Applicant’s application upon perusal of her file. Subsequently, the Second Respondent wrote to the Applicant on 22 October 2015 requesting that she re-submit her citizenship application.

The Applicant filed a judicial review application in July 2019 seeking an order of mandamus to compel the relevant authorities to register her as a Kenyan citizen and issue the necessary citizenship documentation.

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Legal Arguments

Legal Arguments by the Applicant

The Applicant submitted that she was entitled to Kenyan citizenship under Article 15(1) of the Constitution of Kenya and the Kenya Citizenship and Immigration Act 2011 as she had been married to a Kenyan citizen for more than seven years. The Applicant also emphasised that she had complied with all statutory requirements and submitted all necessary documentation (paragraphs 2 and 8).

Accordingly, the Applicant contended that the Respondents’ failure to process her application for over four years was inordinate and not within a fair and reasonable timeline, which amounted to a breach of her right to Fair Administrative Action guaranteed by Article 47 of the Constitution of Kenya. This was further aggravated by the Respondents’ lack of explanation despite the Applicant making several enquiries with the Department.  Therefore, the Applicant submitted that the Respondents were subject to the supervisory jurisdiction of the Court and she requested an order for mandamus compelling the Department to issue the relevant citizenship documents.

Legal Arguments by the Respondents

The Respondents submitted that the Applicant’s file had been misplaced, which necessitated the request for re-submission that was communicated to the Applicant but with which she did not comply. The Respondents accordingly alleged that the orders sought by the Applicant were frivolous and constituted an abuse of Court process. The Respondents further submitted that a grant of the judicial review order of mandamus was discretionary and that the Applicant had not demonstrated any breaches of law or procedure which would entitle the Court to intervene in the matter and grant the order sought.

Outcome

The Court found that the Applicant had a legal right to apply for citizenship and that the Respondents had a corresponding legal duty to register the Applicant if she fulfilled the Constitution’s requirements for citizenship.

The Court noted that the Applicant had re-submitted her application to the Second Respondent during the proceedings and that the Respondents had confirmed ‘the citizenship committee will be sitting next week to consider the applicant’s application’ (paragraph 10).

Nonetheless, the Court held that a delay of four years in a citizenship application was unreasonable and breached the Applicant’s right to Fair Administrative Action under Article 47(1) of the Constitution for lack of ‘expeditious, efficient, lawful reasonable and procedurally fair’ process (paragraph 14). Further, the Court observed that the Second Respondent had no defence to the Applicant’s claim, notwithstanding the explanation provided that her application had been misplaced and she had been requested to re-submit it.

The Court clarified that, while it could not direct for the Applicant be registered as a citizen since the mandate to register citizenship lies with the Second Respondent, the Court could direct by an order of mandamus for a citizenship application to be considered within a reasonable time consistent with Article 47(1) of the Constitution. Accordingly, the Court made an order for mandamus compelling the Second Respondent to consider the Applicant’s citizenship application within 30 days.

The Court also ordered for the Applicant’s costs of the application to be paid by the Second Respondent it had unreasonably delayed in the consideration of the application.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Citizenship and Immigration Act 2011 (Kenya)	Forms 7, 9 and K; section 4(2)(a)
Domestic	Constitution (Kenya)	Article 15(1), 47(1), 259(8)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.