The Kenyan government has been ordered by the High Court to pay a foreigner, Nancy Luanghy Asiya, over KSh 1.7 million.
The Democratic Republic of Congo (DRC) woman was harassed at the Jomo Kenyatta International Airport (JKIA) and unlawfully denied entry, a case of what the court declared unfair discrimination based on age and sex.
The judgment, delivered by Justice A.B. Mwamuye, concluded a legal battle initiated after Ms. Asiya was subjected to what she termed “degrading and dehumanising” treatment by immigration officials in September and October 2023.
“A declaration be and is hereby issued that the denial of entry to the Petitioner to Kenya, despite the existence of a visa waiver agreement between Kenya and DRC, amounted to unfair discrimination based on age and sex, in violation of Article 27 of the Constitution,” read part of the judgment.
In its judgment, the court prohibited immigration officials from repeating such actions and awarded the petitioner KSh1.5 million in general damages for constitutional violations.
An additional KSh188,000 was granted to cover forfeited accommodation and travel costs, with the respondents ordered to bear all legal expenses.
Two Denials and Discrimination
Asiya’s ordeal began on September 21, 2023, when she arrived in Nairobi for a stopover en route to Dubai, travelling under a new visa waiver agreement between Kenya and the DRC.
Despite presenting all valid documents, including a round-trip ticket and confirmed accommodation, her passport was confiscated without explanation.
She was then compelled to wait for over 12 hours in the airport’s transit lounge.
She was detained at Jomo Kenyatta International Airport for over 12 hours in the transit lounge under conditions she describes as degrading and dehumanising.
Her nightmare resumed on October 2, 2023, upon her return from Dubai with the intention of starting a two-week vacation in Nairobi.
Once again, immigration officials denied her entry and forced her to board a return flight to Kinshasa, causing her significant financial loss and emotional distress.
The central pillar of her case was the claim of discrimination under Article 27 of the Constitution.
Asiya pointed out that a male relative, also a Congolese national travelling under similar circumstances, had been granted entry during the same period.
She successfully argued that the only material differences between them were her age and gender, leading to the inference that her exclusion was based on impermissible discriminatory grounds.
Court Finds Breach of Fair Process
In their defence, the government argued that a visa waiver does not grant an automatic right of entry and that immigration officers have the discretion to deny entry to anyone who fails to meet requirements, such as proving sufficient funds.
However, the court found that this discretion was not exercised in a fair, reasonable, and constitutionally compliant manner.
A critical failure identified by the court was the violation of Asiya’s right to fair administrative action under Article 47 of the Constitution.
Also Read: State to Pay Damages After Court Declares Killing of Bobmill Mattresses’ Heir Unlawful
The judgment highlighted that immigration officials failed to provide any written reasons for their adverse decision, a direct breach of constitutional and statutory law.
Regulation 36 of the Kenya Citizenship and Immigration Regulations requires an officer to issue a formal notice to any person declared inadmissible, a step that was never taken in this case.
“A declaration be and is hereby issued that the denial of entry to the Petitioner to Kenya… amounted to unfair discrimination based on age and sex, in violation of Article 27 of the Constitution,” it reads.
Landmark Ruling on Rights and Sovereignty
While the court upheld Kenya’s sovereign power to control its borders, it affirmed that this power is not absolute and must be exercised in line with the Constitution.
Also Read: Blow to Ruto as Court Rules on Compensation Panel for Protest Victims
The judge found that the state failed to provide any lawful or fact-specific explanation for treating Asiya differently from her relative, shifting the burden of proof to the government, which it failed to meet.
Although the court did not find sufficient evidence to support the petitioner’s claim of unlawful detention or inhumane treatment in a legal sense, it firmly ruled that her rights to equality and fair process had been violated.
In addition to the monetary award to Asiya, the court issued an order of prohibition, preventing the government from engaging in similar discriminatory practices or denying individuals entry without providing proper, lawful reasons in the future.
The state was also ordered to bear the costs of the petition.
Follow our WhatsApp Channel and X Account for real-time news updates.
