Controversial lawyer Miguna Miguna leaves Germany Wednesday for his Canada base after his attempt to return back to Kenya hit a dead end, at least for now, following the court’s decision to defer the hearing of the matter to 23 March.
The decision by the court followed an advisory opinion by Attorney General Paul Kihara Kariuki, who had asked the court to be considerate of the immigration law on re-entry of Kenyan citizens into the country in the wake of Miguna’s case.
On 13 January, Justice John Mativo had requested the AG – in his capacity as a friend of the court – to give his opinion on why the state had failed to obey court orders allowing the return of Miguna Miguna, after a Red Alert was issued to airlines not to fly him home.
The AG reminded the court to always be alive to the factual circumstances on compliance and intervening facts which might complicate such compliance.
“We submit that obedience of the court orders is one of the tenets of the rule of law and concept of court and ought not to be counter named in a constitutional democracy such as ours,” the AG told the court in the advisory opinion tabled in court Tuesday.
“We submit that in the present context of the matter any consideration of disobedience of court orders is legally limited to the final judgment and the orders of the court issued on December 2018.”
However, Miguna’s lawyer John Khaminwa protested the move to have the matter mentioned on 23 March, lamenting how the matter was mentioned at 9am yet it had been listed for 11am.
“I was astounded because we did not expect such a thing to happen. This is a matter that is very important to Miguna Miguna and we had gotten in touch with him and assured him all is well ..,” Khaminwa told journalists, accusing counsel for the Attorney General of insincerity for not explaining to the Judge that the matter was slotted for 11 am.
“We intend to make an application by way of certificate of urgency to try to persuade his Lordship to give us a very early date so that the matter can be mentioned and we canvass before a Judge so that Miguna Miguna can return to the country urgently.”
On 6 January, Justice Weldon Korir had prohibited the state from interfering, in any way whatsoever, with Miguna’s return to Kenya.
“An order is hereby issued directing the Registrar of the High Court to release to Miguna’s lawyer or an authorized officer of the Kenya National Commission on Human Rights (KNCHR) the copy of his Kenyan Passport currently under the custody of the court for the use by Immigration Officers in his identification as a citizen of Kenya,” ordered Justice Korir then.
The order had also directed that the Interior Cabinet Secretary, Director of Immigration, Inspector General of Police and Director of Criminal Investigations facilitate his entry into Kenya.
Miguna, however, failed to make the much-awaited return after the state claimed it had no control of the situation because the firebrand lawyer’s documents were not in order. His Kenyan passport had allegedly expired and he had refused to have it renewed at a Kenyan embassy or consulate abroad before attempting to fly back to Kenya.
Airlines, namely Lufthansa and Air France, claimed they would not allow Miguna to board the flight to Nairobi because they had received a red alert describing him as a unruly passenger and risked being deny to land at the Jomo Kenyatta International Airport if they flew him into Nairobi.
