What you need to know:
- A bench of three judges agreed that although the appeal by the government raises substantial questions, the State failed to demonstrate how the failure to suspend the decision would be prejudicial.
Miguna returnThe Court of Appeal has declined to suspend a judgment of the High Court that found the move to declare Dr Miguna Miguna a prohibited immigrant, and his deportation two years ago, illegal.
A bench of three judges agreed that although the appeal by the government raises substantial questions, the State failed to demonstrate how the failure to suspend the decision would be prejudicial.
"It is not sufficient to merely state that the appeal will be rendered nugatory if the orders sought are not granted. The applicant must demonstrate to the court the ‘how’ aspect. It is not obvious to the court the harm, prejudice or loss the applicants would suffer if the respondent were to return to the country, pending the hearing of the appeals pursuant to the orders made by the judge," Justices Roselyn Nambuye, Wanjiru Karanja and Mohamed Warsame said in the judgment.
The judges also declined to suspend an award of Sh7.2 million in damages granted to Dr Miguna and for the destruction of his house in Runda, Nairobi, in February 2018.
The court further refused to suspend the order that quashed the declaration of the National Resistance Movement as a criminal organisation.
The judges said the grounds raised were important but should be argued in the main appeal.
Interior Cabinet Secretary Fred Matiang'i had denied masterminding the destruction of Dr Miguna's property and said that under section 97 of the repealed Constitution, he acquired the citizenship of another country and lost his Kenyan citizenship.
The CS had argued that he was informed that although Dr Miguna was a Canadian citizen, he had not renounced the Canadian citizenship before he was issued with the Kenyan passport.
He contended, therefore, that Dr Miguna illegally obtained the Kenyan passport.
Dr Miguna was first deported in February 2018, days after his arrest over his role in the mock swearing-in of Orange Democratic Movement (ODM) leader Raila Odinga as the people’s president on January 30 that year.
He tried to return to Kenya on March 26, 2018 but was denied entry and detained incommunicado, and without food and access to his lawyers, in a toilet at terminal 2 of the Jomo Kenyatta International Airport.
A day later, Justice Roselyn Aburili ordered Dr Miguna’s release and his appearance before the duty judge the following day.
Dr Miguna said his lawyers served the orders to government officials but that they declined to release him.
He told the court that on February 2, 2018, security officers broke into his home in Runda, ransacked the house, dragged him out of it and drove with him to various police stations including Kiambu, Githunguri and Lari in Kiambu County.
He was taken to a Kajiado court on February 6, to be charged before a resident magistrate, but the court did not allow him to take a plea after it was informed of a case before the High Court.
Dr Miguna said he was not produced before the High Court as ordered by both the High Court and the magistrate but was declared a non-citizen, and his passport withdrawn.
He was also declared a prohibited immigrant, driven to the JKIA and deported to Canada.
The lawyer said he was forcefully and violently attacked in a toilet cell at JKIA, where he was allegedly drugged, put in an aircraft owned by Emirates Airline then illegally flown to Dubai.
He says he is a Kenyan citizen by birth and maintains he has never renounced or lost his citizenship.