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Court of AppealDismissedCivil Appeal No. 51 of 2013· [2015] KECA 908 (KLR)

Khatija Ramtula Nur Mohamed & another v Minister for Citizenship and Immigration & 2 others [2015] KECA 908 (KLR)

Court of Appeal of Kenya
26 February 2015
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
2,262 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld the three-year marriage requirement before foreign spouses can get permanent residence, ruling it constitutional.

What this practically means

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Executive summary

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This appeal arose from the dismissal by the High Court at Mombasa of a constitutional petition filed by Khatija Ramtula Nur Mohamed, a Kenyan citizen, and her Pakistani husband, Zahid Abbas Mohamed Akram, who married under Islamic law in September 2011. The 2nd appellant entered Kenya in 2009 on a visa but alleged that his co-directors in Mombasa Khushi Motor Company Limited conspired to have him deported by detaining his passport, leaving him unable to renew his visa. The petitioners attacked section 37(d) of the Kenya Citizenship and Immigration Act, which makes foreign spouses of Kenyan citizens eligible for permanent residence only where they have been married for at least three years, contending that it discriminates contrary to Articles 27 and 45. The Court of Appeal, in a unanimous judgment, first affirmed the High Court's finding that the 2nd appellant's presence in Kenya was unlawful, since by his own affidavit his visa had expired. On the constitutionality question, the court held that the three-year waiting period is a reasonable and justifiable limitation under Article 24(1), designed to prevent marriages of convenience being used to gain automatic citizenship and to protect national security. It reasoned that the provision burdens the Kenyan and foreign spouse equally, so there is no discrimination, and that the security of the country outweighs the inconvenience to the Kenyan spouse. The appeal was dismissed with costs to the respondents. Lower courts are bound by the holding that the section 37(d) waiting period is constitutional.

Key legal issues

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01

Lawfulness of the 2nd appellant's presence in Kenya

Holding

The 2nd appellant's presence was unlawful because his visa had expired, a fact he admitted in his supporting affidavit

Reasoning

The court relied on paragraph 5 of the 2nd appellant's affidavit in which he stated the Immigration Officers had declined to extend his visa, that his visa had expired and that his resident status was not regular. The learned Judge's finding that his presence was unlawful was upheld, and the allegation of a scheme by co-directors with the respondents' aid was rejected as misplaced.

p. 4
02

Constitutionality of the three-year waiting period in section 37(d)

Holding

The waiting period is constitutional; it is a reasonable and justifiable limitation under Article 24(1) and does not violate Articles 27 or 45

Reasoning

Article 24(1) permits limitation of rights by law where reasonable and justifiable in an open democratic society. The three-year period guards against undesirable persons contracting marriages of convenience and automatically acquiring citizenship, a real security danger. The provision burdens the Kenyan and foreign spouse equally, so there is no discrimination, and the security interest outweighs the inconvenience to the 1st appellant.

p. 5

Legal principles established

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  • A marriage between a foreign national and a Kenyan citizen does not, without more, validate the foreigner's unlawful presence in Kenya
  • The three-year marriage qualifying period for foreign spouses seeking permanent residence under section 37(d) of the Kenya Citizenship and Immigration Act is a reasonable and justifiable limitation under Article 24(1) and is constitutional

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 24(1)
  • Constitution of KenyaArticle 27 (including 27(3) and 27(4))
  • Constitution of KenyaArticle 39(3)
  • Constitution of KenyaArticle 45 (including 45(1), (2), (3), (4))
  • Kenya Citizenship and Immigration ActSection 22
  • Kenya Citizenship and Immigration ActSection 37(d)
  • Kenya Citizenship and Immigration ActSection 39(d) (referred to in the judgment)
  • Immigration Act Cap. 172Alien Certificate provisions
On appeal from
High Court of Kenya at Mombasa
H.C. Constitutional Petition No. 38 of 2012
Jurisdiction invoked
First appellate appeal from High Court constitutional petition (Court of Appeal appellate jurisdiction under the Constitution; specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Khatija Ramtula Nur Mohamed & another v Minister for Citizenship and Immigration & 2 others [2015] KECA 908 (KLR)", Case Analysis (2015). Civil Appeal No. 51 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/908/eng@2015-02-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.