The High Court has ruled against the Ministry of Interior and National Coordination, ordering it to compensate a woman from the Democratic Republic of Congo (DRC) who was unlawfully blocked from entering Kenya.
Justice Bahati Mwamuye delivered the judgment, stating that the government must pay the Congolese national over Ksh1.5 million as compensation for unfair discrimination and violation of her right to fair administrative action.
In addition, she was awarded Ksh184,756 as special damages to cover the cost of accommodation and travel expenses she lost after being denied entry.
The judge further issued orders barring the government from repeating such actions, including blocking her entry without valid reasons or subjecting her to discriminatory treatment in the future.
How the Case Began
The foreigner had filed a petition claiming her rights were violated after she was denied entry into Kenya on two different occasions—September 21, 2023, and October 2, 2023—despite having all the necessary travel documents.
She presented a valid round-trip ticket, confirmed accommodation, and relied on the new visa waiver deal between Kenya and the DRC, which came into effect on September 1, 2023.
According to her claims, she was subjected to degrading and unlawful treatment at Jomo Kenyatta International Airport (JKIA). She alleged that immigration officers denied her access to legal assistance, failed to provide her with basic amenities, and ignored her right to due process during the ordeal.
The Visa Waiver Agreement
The case also revolved around the visa waiver agreement between Kenya and the DRC. Under the East African Community (EAC) Common Market Protocol, citizens of member states are entitled to free movement across borders.
Based on this principle, Kenya reclassified DRC citizens from Category 2 to Category 1 under its visa policy, removing visa requirements for Congolese nationals from September 1, 2023.
In return, the DRC did the same for Kenyans, allowing citizens from either country to stay for up to 30 days without a visa.
The Government’s Defence
In its response, the Ministry of Interior argued that while visa waivers may ease travel between states, they do not grant foreigners an unconditional or automatic right of entry into Kenya.
Immigration officers, the Ministry said, are still legally mandated to assess and scrutinize travelers before admitting them, as required by the Kenya Citizenship and Immigration Act, 2011.
Officials further claimed that the foreigner failed to meet one of the key entry conditions—showing proof of adequate financial means to support her stay in Kenya.
They insisted she did not convince them that she could sustain herself during her vacation, despite her proof of having at least Ksh64,400 ($500) in her bank account for a planned two-week holiday.
The Ministry also suggested that immigration officers had reasonable grounds to suspect the traveler might pose a risk to national interests.
It asked the court to dismiss the case, stressing that immigration is a sovereign matter and that judicial interference should be limited to extreme cases of abuse or illegality, which they believed had not been proven in this instance.
The state went further, warning that granting such a petition would amount to misinterpreting the visa waiver agreement between Kenya and the DRC, potentially undermining Kenya’s sovereignty and its ability to apply immigration laws fairly and consistently.
What the Court Found
After considering the arguments, Justice Mwamuye ruled that there was no evidence to suggest the visa waiver deal had taken away Kenya’s sovereign authority to control its borders. The court clarified that the agreement was intended to ease travel, not to override Kenyan laws or the powers of immigration officers.
“The agreement does not amend the Kenya Citizenship and Immigration Act, nor does it abrogate Section 33 thereof. The waiver must therefore be interpreted as facilitating ease of travel, not as diminishing Kenya’s sovereign powers or the constitutional responsibilities of immigration officers,” the judgment stated.
However, the court found that the Ministry of Interior had failed to provide clear and specific reasons for denying the woman entry into Kenya. This failure, Justice Mwamuye said, amounted to a breach of her right to fair administrative action and demonstrated discrimination.
As a result, the court awarded her Ksh1.5 million in compensation for the violation of her rights and Ksh184,756 in special damages for financial losses tied to her travel and accommodation arrangements.
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