News

By PAUL MUHOHO

THE High Court yesterday quashed the revocation of two Kenyan passports held by the two controversial Kamani brothers ostensibly over their alleged involvement in the monumental AngloLeasing scandals.

A three-judge constitutional bench ruled that 55-year-old Rashmi and 54-year-old Deepak Kamani were entitled to protection of the law, were free to leave and enter Kenya at will arid enjoyed immunity from expulsion from their motherland.

The purported cancellation of their passports last March 30 by Principal Immigration Officer J.K. Ndathi was unconstitutional, unlawful and invalid, High Court judges Joseph Nyamu, Mathew Anyara Emukule and Roselyne Wendoh declared in their unprecedented l Hl-page judgment.

No compelling reasons were offered to .the two aggrieved businessmen for the revocation of their passports and the "national interest" cited in Ndathi's letters was not sufficiently explained to them. Due process was not followed to deprive them of their personal liberty and freedom of movement and the cancellations could not stand any legal challenge, the three judges said in their unanimous decision.

They declared that the cancellation of the travel documents by Ndathi at the behest of the Kenya Anti-Corruption Commission (KACC) violated the businessmen's personal liberty and freedom of movement. Section 31 of the KACC Act was invalid and in conflict with fundamental personal rights enshrined in the Constitution, the court held.

Similarly the court nullified the proceedings and orders issued last January 27 by former Kibera Chief Magistrate Catherine Mwangi allowing KACC to impound the passport and any other travel documents held by Deepak. The orders were unjustified and illegitimate since Deepak and Rashmi had never been charged with any offence or convicted by a court of law, the court held.

The judgment was received with abundant joy by the duo elderly father, Chamanlal Kamani, 'whose passport had been impounded by KACC before the High Court ordered its release last December 20 to enable him to travel to India for specialised treatment for a heart condition. He had been attending the sessions when the matter was argued before the three-judge bench.

In their landmark decision, the three judges appealed to the Executive arm of the Government to urgently restructure the country's Constitution to put in place limitations envisaged under the Immigration Act and the KACC Act since there existed a pressing social need to deal with corruption and' economic crimes. The court had a duty and responsibility to protect constitutional rights enjoyed by citizens but not to bow to decades old practice by the Executive, they said.

The judges upheld the lengthy> submissions made by lawyer Fred Ngatia, representing the two complainants, that their constitutional fights had been violated by the Immigration authorities. The 'duo, who have been residing in Bangalore in India since last January 9, protested that it was impossible for them to fly back home to prove their innocence or face their accusers.

The right of passage or a one way ticket for the two brothers offered by the government was not an answer to violation of constitutional rights of-citizens, the court stressed, saying it was unjustifiable for the state to claim that its citizens could return to its territory without passports, It was totally unacceptable for the KACC to have sought to impound the passports held by the two brothers for the last 16 months on the basis that investigations were underway, the judges said.