Muse Farah Warsame v The Director of Immigration Services (through The Hon. Attorney General)

JUDGMENT Introduction 1. This Judgment pertains to the Petition dated 28th September 2023, where the Petitioner, a recognized refugee, seeks redress against the Respondent’s refusal to grant him a work permit. The Petitioner seeks the following reliefs: a. A declaration that denial of work is a violation of the petitioner fundamental right. b. Judicial Review order directing the Director General by mandatory orders to issue and grant the Petitioner work permit to work as a driver. c. Costs of the suit. Background 2. The factual foundation of this dispute is largely uncontroverted. The Petitioner, Muse Farah Warsame, is a Somali national who entered Kenya and was subjected to the refugee eligibility process as prescribed by law. Consequently, he was formally recognized as a refugee within the meaning of the Refugee Act, 2021 and the 1951 Geneva Convention. He was issued with a Refugee Identity Card, Serial Number 54xxxx05 and individual number 820700. It is not disputed that the Petitioner has remained in Kenya for a period exceeding three consecutive years. 3. The Petitioner holds a valid Kenyan driving license. He secured an offer of employment from Gemos Investments Co. Ltd, a company duly registered in Kenya, to work as a driver in Eldoret. The employer completed the requisite parts of the official “Application for Issuance/Renewal of Permit” Form 25, indicating a two-year contract with an annual salary. In support of this application, the Department of Refugee Services, under the Ministry of Interior and National Administration, wrote to the Respondent on 14th February 2023. That letter, stated: “The Department has no objection to you issuing him with Class M permit if he meets your minimum requirements.” 4. The genesis of the conflict is an earlier application for a work permit made by the Petitioner in 2019. The Petitioner’s consistent averment is that he never received any formal communication from the Respondent regarding the outcome of that application. The Respondent, issued a determination that the said 2019 application was declined on 23rd May 2019, with the reason stated as “No Merit.” The Respondent contends this notification was uploaded to the Electronic Foreign Nationals Service (eFNS) portal, accessible to the applicant. The Petitioner maintains he was never made aware of this decision or its reasons. 5. Following the apparent silence on his 2019 application and the subsequent recommendation from the Department of Refugee Services in 2023, the Petitioner, through his advocates, escalated the matter. A demand letter was sent to the Attorney General on 19th February 2023, threatening judicial review proceedings. A formal appeal for review was also lodged with the Cabinet Secretary, Ministry of Interior. Alleging that these efforts yielded no substantive response, the Petitioner moved to this Court, filing the instant Constitutional Petition. The Petitioner’s Case 6. The Petitioner’s case, as pleaded in his Petition and Supporting Affidavit sworn on 28th September 2023, is built upon the following factual assertions: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 2

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a. He is a male adult of Somali origin, lawfully recognized as a refugee in Kenya, holding a valid Refugee Identity Card. b. His status as a refugee has never been revoked or cancelled. c. He has resided continuously in Kenya for a period exceeding three years. He holds a valid driving license issued by the Kenyan authorities. d. He secured genuine employment as a driver with Gemos Investments Co. Ltd, which submitted a formal application for a work permit on his behalf. e. The State Department for Refugee Affairs recommended that he be issued with a Class M work permit. f. He first applied for a work permit in 2019 but never received any communication from the Respondent regarding its outcome, denial, or reasons for any denial. g. He only learned through his advocates that his application had likely been declined, but no written reasons were ever furnished to him or his advocates. He lodged an appeal against the Respondent’s decision, which appeal was never considered or determined. h. As a refugee with no dependable family support, the denial of a work permit has subjected him to severe financial constraints, depriving him of basic necessities like food and clothing, and has reduced him to a state of beggary. 7. The Petitioner filed detailed written submissions dated 11th June 2024. Their legal arguments are synthesized as follows: 8. On Jurisdiction and Exhaustion of Remedies, the Petitioner submitted that the Court should exercise its discretion under Section 9(4) of the Fair Administrative Action Act to exempt the Petitioner from exhausting the internal remedy. They argued that the statutory review mechanism had been rendered nugatory by the Respondent’s inordinate delay and non-response. They contended that the Petitioner’s appeal and follow-up demands were ignored, creating an exceptional circumstance. They further argued that the Petition raises substantial constitutional issues regarding the rights of refugees, which transcend the internal administrative review and justify direct access to this Court for vindication of fundamental rights. 9. Furthermore, on Violation of Fair Administrative Action, the Petitioner submitted that the Respondent’s failure to provide adequate reasons for the denial of the work permit constituted a clear breach of Article 47 of the Constitution and Section 4(3) of the Fair Administrative Action Act. They argued that the notation “No Merit” was vague, unintelligible, and failed to meet the standard of a proper “statement of reasons.” 10. On Violation of Refugee Rights under International and Domestic Law, the Petitioner argued that as a recognized refugee who has completed three years of residence, he is protected by Article 17 of the Geneva Convention. This provision, they argued, explicitly prohibits Contracting States from applying restrictive national labour market measures to such refugees. This international obligation is domesticated by Article 2(6) of the Constitution and given effect by Section 28(5) of the Refugee Act, 2021, which grants a recognized refugee the right to gainful employment where they hold a recognized qualification, such as a driving license. They argued that the Respondent’s decision completely disregarded this special legal regime applicable to refugees. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 3

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11. On Violation of Human Dignity and Economic Rights (Articles 28 & 43), the Petitioner averred that by denying him the means to earn a livelihood, the Respondent condemned him to destitution, which is an affront to his inherent human dignity under Article 28. He linked this to the denial of his economic and social rights under Article 43. Reliance was placed on the South African case of Minister of Home Affairs v Watchenuka Case No. 48 of 2014 which held that a prohibition on work for asylum seekers, leading to destitution, violated the constitutional right to human dignity. 12. On Discrimination Under Article 27, it was submitted that subjecting the Petitioner, as a refugee, to a complete denial of work while other foreign nationals may be granted permits under different classes, without a justified reason tied to his specific status, amounted to unfair discrimination. 13. The Petitioner therefore urged this Honourable Court to grant the prayers sought with costs. The Respondent’s Case 14. The Respondent’s case, as presented in its replying affidavit and submissions, rests on the following factual assertions: a. The Petitioner is a foreign national, and the issuance of a work permit is a discretionary privilege governed by statute, not a right. b. The Petitioner’s application for a work permit made in 2019 was duly processed and a determination was made. c. The said application was declined on 23rd May 2019. The reason for the denial was recorded as “No Merit”. This decision, along with the reason, was communicated to the Petitioner via the official Electronic Foreign Nationals Service (eFNS) portal, which serves as a legitimate channel for such notifications. 15. Upon being aggrieved by this decision, the Petitioner had a statutory obligation to apply to the Cabinet Secretary for a review of the decision under Section 40(10) of the Kenya Citizenship and Immigration Act. 16. The Petitioner either failed to properly invoke this internal statutory remedy or failed to exhaust it before instituting the present court proceedings. 17. The Respondent, through the Honourable Attorney General, filed submissions dated 10th August 2024. 18. It is submitted that the Kenya Citizenship and Immigration Act, particularly section 40, vests the Director of Immigration Services with discretionary authority to issue or revoke work permits upon the recommendation of the relevant Committee. According to the Respondent, this statutory framework confers wide latitude on the Director to determine the suitability of any application, provided the procedures stipulated in the Act are followed. The Respondent maintains that section 40(7) was fully complied with, as written reasons for refusal were duly furnished. Consequently, the allegation that no reasons were supplied is characterised as a deliberate misrepresentation by the Petitioner. 19. The Respondent further asserts that the Petitioner was duly notified of the refusal through the Electronic Foreign Nationals Portal, and that the said notification formed the basis of an appeal lodged on 2nd October 2019. In their view, it is contradictory for the Petitioner to deny the existence of reasons while simultaneously relying on the notification to advance the appeal. The Respondent distinguishes the present matter from Hannan Lucy Elizabeth v Director General, Kenya Citizens and Foreign National Management Services & 3 others [2017] eKLR, arguing that unlike in that case, the Petitioner https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 4

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herein received written reasons, was heard through an appeal, and a decision was rendered upon review. They therefore submit that due process was strictly observed. On this basis, the claims of infringement of constitutional rights are said to be without foundation. 20. In addressing the second issue, the Respondent emphasizes that the authority to renew or decline renewal of a work permit lies exclusively with the Department of Immigration, whose functions constitute a sovereign mandate grounded in statute. They contend that the right to enter, remain, and reside in Kenya is constitutionally reserved for citizens, and that non-citizens only enjoy this privilege subject to statutory regulation. Accordingly, the Respondent argues that denying a work permit cannot, in itself, amount to a violation of constitutional rights. It is further submitted that national interest considerations and concealment of material facts justified the decision not to renew the Petitioner’s permit. 21. Lastly, the Respondent argues that the Petition is defective for failing to meet the well-established threshold for constitutional petitions as articulated in Anarita Karimi Njeru v Republic (1979) eKLR. They contend that the Petition lacks precision, does not identify the specific constitutional provisions allegedly infringed, and fails to demonstrate the manner of such infringement. The Respondent reiterates that the Petition rests solely on the unfounded allegation that reasons were not provided, despite clear evidence to the contrary. In their view, the Petitioner has neither substantiated nor particularised any of the alleged violations of constitutional rights. For these reasons, the Respondent urges the Court to find that the prayers sought are devoid of merit and to dismiss the Petition with costs. Analyis And Issues For Determination 22. Upon a holistic review of the pleadings, affidavits, annexures, and written submissions, the following issues crystallize for the Court’s determination: i. Whether the Petition is fatally defective for failing to meet the threshold for a constitutional Petition. ii. Whether the Petitioner’s failure to exhaust the internal remedy under Section 40(10) of the Kenya Citizenship and Immigration Act ousts this Court’s jurisdiction. iii. Whether the Respondent’s decision to refuse the work permit, and the process leading thereto, violated the Petitioner’s rights under: Article 47 of the Constitution and the Fair Administrative Action Act; Article 35 of the Constitution; Articles 28 and 43 of the Constitution; and international law as domesticated by Article 2(6) of the Constitution and the Refugee Act, 2021. iv. What remedies, if any, are available to the Petitioner. Whether the Petition meets the threshold for a constitutional Petition 23. The Respondent has contended that the Petition is defective for not specifying with reasonable precision the constitutional provisions infringed and the manner of infringement. This principle, first enunciated in Anarita Karimi Njeru v Republic (supra), is designed to ensure that respondents are adequately informed of the case against them and that constitutional litigation is not reduced to vague, speculative grievances. 24. Having perused the Petition dated 28th September 2023, I find that it comfortably meets this threshold. The Petition is structured and particular. At the onset, it cites the specific constitutional provisions underpinning the cause: Articles 2(5), 43, 47 and 50. The body of the Petition then elaborates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 5

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on the alleged violations. The Petitioner averred that the Respondent’s actions violated the right to fair administrative action under Article 47, equality and freedom from discrimination, access to information, and economic and social rights. Paragraph 8 specifies that rights under Articles 27, 35, 43, and 47 are threatened and violated. Subsequent paragraphs tie the factual allegations being lack of reasons, discriminatory treatment, and resultant destitution to these specific provisions. 25. The Petition is not a model of perfect drafting, but it is sufficiently precise. It informs the Respondent that the grievance is about the denial of a work permit to a refugee, the failure to give reasons, and the consequent impact on his dignity and livelihood, all said to breach enumerated constitutional articles. This is far from a vague or general complaint. 26. The Court of Appeal in Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) cautioned against applying the Anarita principle as a technical barricade, emphasizing that the essence is to provide fair notice. In providing the caution, the Court of Appeal stated thus; “ Yet the Principle in Anarita Karimi Njeru [supra] underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act [Cap 21] and section 3A and 3B of the Appellate Jurisdiction Act [Cap 9]. Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru [supra] that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth [1876] 3 Ch. D. 637 at 639 holds true today: The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.” 27. The Petitioner has done so as the Petition provided particulars as to the allegations and the manner of the alleged infringements. Whether the Petitioner’s failure to exhaust the internal remedy under Section 40(10) of the Kenya Citizenship and Immigration Act ousts this Court’s jurisdiction 28. This is the central procedural contention. The Respondent asserts that the Petitioner’s direct recourse to this Court under Article 47(3) of the Constitution is premature, as he bypassed the review mechanism before the Cabinet Secretary under Section 40(10) of the Kenya Citizenship and Immigration Act. The said section provides: “ 10)Any person who is aggrieved by a decision made under this section may apply to the Cabinet Secretary for review in the prescribed manner.” 29. The doctrine of exhaustion of remedies is codified in Section 9 of the Fair Administrative Action Act. Subsections (2) and (3) are couched in mandatory terms: “shall not review…unless the mechanisms… are first exhausted” and “shall…direct that applicant shall first exhaust such remedy.” However, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 6

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subsection (4) provides a critical caveat: “The High Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the Court considers such exemption to be in the interest of justice.” 30. The jurisprudence on this doctrine is nuanced. While the Court of Appeal in Speaker of National Assembly v Njenga Karume [2008] 1 KLR 425 emphasized the need to follow prescribed procedures, it did not advocate for a rigid, mechanical application that would defeat justice. 31. However, the Court of Appeal in Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR) provided a more contextual approach, stating that the rule is one of policy and discretion, not a categorical bar, and should not be used to erect unnecessary technicalities where the alternative remedy is ineffective or where the delay would cause injustice. In arriving at the conclusion, the court stated as follows; “ Having perused the petition, we find no difficulty in finding and holding, as did the learned Judge, that the petition did meet the threshold of formal competency as set out in the aforesaid Rules and the case law. We say so quite cognizant of the fact that so long as there is a sufficiency of information, as to the constitutional right violated with particulars supplied, then a court of competent jurisdiction ought, in the spirit of a rights-centric constitutional dispensation such as ours, to take the matter up, investigate and provide redress or relief if merited, careful not to defeat substance at the altar of procedure. We say this while aware that in matters of rights, constitutional courts in some jurisdictions, notably the Supreme Court of India, has been so proactive in the protection of fundamental rights and freedoms as to assume jurisdiction upon being moved by letter in what is fashionably referred to as ‘epistolary jurisdiction’ and especially in the context of public interest litigation. See, for instance, Fertilizer Corporation Kamgar Union –vs- Union Of India [1981] SC 344 (AIR).” 32. In the present case, the following factors are compelling. First, the timeline is critical. The Petitioner’s initial application was in 2019. The Respondent claims it was declined in May 2019. The Petitioner’s advocates lodged an appeal for review, as evidenced by the Respondent’s own annexure showing an appeal filed on 2nd October 2019. From that date until the filing of this Petition in September 2023, a period of nearly four years, there is no evidence that the Cabinet Secretary rendered any decision on that review. This is an inordinate delay that renders the statutory remedy not just dilatory, but effectively illusory. 33. Second, the Petitioner’s subsequent attempts to obtain clarity, including the advocate’s demand letter of February 2023, were met with silence. A litigant cannot be condemned to wait indefinitely at the door of an administrative body that shows no sign of acting. The Court in Mbugua & 10 others v Attorney General & 54 others; Communication Commission of Kenya (Interested Party) (Constitutional Petition E237 of 2021) [2023] KEHC 1917 (KLR) rightly observed that the exhaustion rule is not a straitjacket and must yield to the principle of access to justice, particularly where the alternative forum has failed to act. 34. Third, and significantly, the Petition raises substantial questions of constitutional and international law regarding the rights of recognized refugees. These are not ordinary administrative grievances amenable solely to internal review. They engage the Court’s primary role as the interpreter of the Constitution and the protector of fundamental rights, especially for vulnerable groups. 35. As was held in Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR), the doctrine of exhaustion is less strictly https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 7

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applied where weighty constitutional issues are at stake that the alternative forum may not be fully equipped to resolve. The Court in arriving at the conclusion above stated as follows; “ In the end, therefore, the conclusions and findings of the Court are as follows: 36. “a. That an Interested Party in a civil suit cannot expand the scope of the original suit as pleaded by the principal parties. In the present case, the 1st and 2nd Interested Parties impermissibly expanded the scope of the Consolidated Petitions by pleading and submitting on Articles 6 (2) and 6 (3) as well as Article 27 of the Constitution. b. That a party is required to exhaust its remedies under the Competition Act before bringing an action in Court claiming violations of that Act. However, the Consolidated Petitions involved polycentric issues and multiplicity of parties including questions related to the fundamental rights of the Petitioners to warrant an exception to the doctrine of exhaustion as developed in our jurisprudence. This finding notwithstanding, the claims alleging infringement of the Competition Act by the 4th Petitioner could not be entertained in this suit since the 4th Petitioner had commenced proceedings before the Competition Authority of Kenya but did not pursue those proceedings. Instead, the 4th Petitioner approached this Court with an expanded Petition seeking reliefs beyond the scope of the Competition Act.” Considering the prolonged and unexplained delay in the statutory review process, the resultant prejudice to the Petitioner who remains in a state of destitution, and the fundamental constitutional questions involved, I find that exceptional circumstances exist warranting an exemption from the exhaustion requirement in the interest of justice, pursuant to Section 9(4) of the Fair Administrative Action Act. This Court is properly seized of the matter. Whether the Respondent’s decision to refuse the work permit, and the process leading thereto, violated the Petitioner’s constitutional rights 37. Having established jurisdiction, the Court now turns to the substantive merits of the Petitioner’s complaints. The analysis will proceed by examining the applicable legal frameworks and evaluating the Respondent’s decision against them. Violation of Article 47 (Fair Administrative Action) and Article 35 (Access to Information) 38. The right to fair administrative action is a cornerstone of Kenya’s constitutional architecture. Article 47(1) guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) grants the right to written reasons where a right is adversely affected. The Fair Administrative Action Act, 2015, gives detailed effect to this right. Section 4(3) mandates that an administrator whose action adversely affects a person must give, inter alia, “a statement of reasons for the administrative action.” 39. The duty to give reasons is not a mere formality. It serves several vital constitutional functions: it promotes transparency and accountability in public administration; it enables the affected person to understand the basis of the decision and to assess its lawfulness; it disciplines the decision-maker to act rationally and within the law; and it facilitates effective judicial review. As stated by the High Court of Australia in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, and adopted https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 8

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in our context, the giving of reasons is an incident of the judicial process and by extension, of fair administrative process. 40. The Respondent contends it fulfilled this duty by uploading a decision with the reason “No Merit” to the eFNS portal. The fundamental question is whether “No Merit” constitutes a valid “statement of reasons.” I hold that it does not. A statement of reasons must be intelligible and capable of informing the recipient why the decision was made. The phrase “No Merit” is an opaque conclusion. It is a label, not an explanation. It provides no insight into what criteria of “merit” were applied, was it the failure of the employer to justify the non-availability of a local driver? Was it a security concern related to the Petitioner? Was it the salary level? Was it a determination that driving is not a specialized skill? Without this basic information, the Petitioner is left in complete darkness, unable to meaningfully challenge the decision or even to understand what aspect of his application was deficient. 41. This deficiency is a clear breach of Article 47. The case of Hannan Lucy Elizabeth v Director General, Kenya Citizens and Foreign National Management Services & 3 others [2017] (supra) is directly on point. In that case, Lenaola J. (as he then was) found a violation of Article 47 because the petitioner was not furnished with written reasons for the denial of her work permit renewal prior to the litigation. The attempt to furnish reasons through an affidavit in court was held to be insufficient. Here, the purported reason furnished, even if communicated, is so devoid of substance as to be functionally equivalent to providing no reason at all. It renders the administrative process unfair and inscrutable. 42. This failure also implicates Article 35, which guarantees the right of access to information held by the State. While the primary bearer of this right is the citizen, its rationale, transparency and accountability, applies with equal force when a person’s fundamental rights, such as the right to work and dignity, are contingent on information held by the state. The Petitioner was entitled to access the specific information constituting the reasons for rejecting his application. The provision of a cryptic, non-explanatory phrase frustrated this entitlement. The decision-making process was shrouded in unacceptable opacity. 43. Furthermore, the Respondent’s inaction on the Petitioner’s subsequent appeal and demand letters compounds the procedural unfairness. A system where an applicant is given a meaningless reason and then ignored when he seeks clarification or review is the antithesis of an expeditious, efficient, and fair administrative process as envisioned by Article 47(1). I therefore find a unequivocal violation of the Petitioner’s rights under Articles 47 and 35 of the Constitution. Violation of Refugee Rights under International and Domestic Law 44. This is the heart of the dispute. The Petitioner is not an ordinary foreign national; he is a recognized refugee. This status triggers a distinct and more protective legal regime. Kenya is a signatory to the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol. By virtue of Article 2(6) of the Constitution, this ratified treaty forms part of the laws of Kenya. 45. Article 17 of the Geneva Convention is unequivocal in its terms: “ 1. The Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wageearning employment. 2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 9

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this Convention for the Contracting State concerned, or who fulfils one of the following conditions: (a) He has completed three years' residence in the country…” 46. The domestic incorporation of this obligation is found in the Refugee Act, 2021. Section 28, titled “Rights and obligations of refugees,” is instructive. 47. Section 28(5) states: “ Subject to the laws applicable and taking into special consideration the special circumstances of refugees, a refugee recognized under this Act shall have the right to engage individually or in a group, in gainful employment or enterprise or to practice a profession or trade where he holds qualifications recognized by competent authorities in Kenya.” 48. The legal position is therefore crystalline. A refugee lawfully staying in Kenya who has completed three years of residence, as the Petitioner has, is entitled to two key protections: (1) He is exempt from restrictive national labour market measures designed to protect local employment (Article 17(2), Geneva Convention). (2) He has a statutory right to engage in gainful employment where he holds a recognized qualification (Section 28(5), Refugee Act). A valid Kenyan driving license is a qualification recognized by the National Transport and Safety Authority, a competent authority. 49. The Respondent’s decision, as presented, shows a complete and total disregard for this specific legal framework. There is no indication in the reason “No Merit,” or anywhere in the Respondent’s pleadings, that the decision-maker turned their mind to the Petitioner’s refugee status, the duration of his residence, or the binding provisions of Article 17 of the Geneva Convention and Section 28 of the Refugee Act. The decision appears to have been made as if the Petitioner were any other foreign national, subject to the unalloyed discretion under Section 40 of the Kenya Citizenship and Immigration Act. 50. This is a fundamental legal error. A public authority must direct its mind to all relevant considerations, and the specific, favourable legal regime applicable to refugees is a paramount relevant consideration. Failure to consider a relevant factor, especially one mandated by international treaty and domestic statute, renders a decision unreasonable and unlawful. The principle was aptly stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, and it applies with full force in our administrative law. The Respondent’s decision was unreasonable because it failed to account for a critical and favourable factor in law, the Petitioner’s protected status as a long-staying refugee. 51. The Respondent’s reliance on Diana Waceke Wainaina v Director of Immigration Services; Serge Louodom (Interested Party) [2022] eKLR is, with respect, misconceived. That case dealt with an ordinary foreign investor seeking a business permit. The Court’s remarks on the privilege of economic activity for non-citizens were made in that context. The case did not involve, nor did it consider, the special protections accorded to refugees under international and domestic refugee law. To apply its reasoning to a recognized refugee would be to ignore a whole body of law specifically designed to elevate the refugee’s legal position above that of an ordinary alien. Violation of Article 28 (Human Dignity) and Article 43 (Economic and Social Rights) 52. The Constitution in Articles 28 and 43 does not exist in a vacuum. They must be interpreted in light of the Petitioner’s factual circumstances and his legal status. Article 28 guarantees every person inherent dignity and the right to have it respected and protected. Article 43(1)(a) guarantees the right to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 10

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highest attainable standard of health, which includes adequate food and housing. These rights are interdependent and indivisible. 53. The Petitioner’s sworn testimony that he has no dependable family support and that the denial of a work permit has reduced him to a state of beggary and destitution stands uncontroverted. The act of taking a person who is lawfully present in the country, recognizing his refugee status, and then systematically denying him the means to sustain himself through lawful employment is an assault on his human dignity. It creates a condition of state-sanctioned destitution, which is degrading and inhuman. 54. The South African decision provides a powerful comparative perspective. In Minister of Home Affairs and others v Watchenuka and others (010/2003) [2003] ZASCA 142, the Court struck down a condition on an asylum seeker’s permit that prohibited work or study. The court held that: “ But where employment is the only reasonable means for the person’s support other considerations arise. What is then in issue is not merely a restriction upon the person's capacity for self-fulfilment, but a restriction upon his or her ability to live without positive humiliation and degradation.” 55. The Court found that where employment is the only reasonable means of support, a prohibition engages the constitutional right to dignity. While the procedural postures differ, the underlying principle is resonant: a law or decision that leaves a protected person without the means to survive affronts their dignity. 56. In the Kenyan context, the Court in John Kabui Mwai and 3 Others v Kenya National Examinations Council & Others, Nairobi Petition No. 15 of 2011 [2011] eKLR emphasized that the Constitution’s commitment to human dignity requires the state to respect, protect, and fulfil socio-economic rights. By refusing a work permit to a qualified refugee with a job offer, without a lawful and reasoned justification tied to his specific case, the Respondent has failed in its duty to respect the Petitioner’s dignity and his derivative socio-economic rights. The decision forces him into a position of helpless dependency, which is the very antithesis of the autonomy and respect that human dignity entails. 57. The Respondent’s invocation of “national interest” under Section 40(7) of the Kenya Citizenship and Immigration Act is, in this instance, an empty vessel. National interest is not a magic incantation that justifies any and all decisions. It must be applied within the bounds of the law, and the law includes the Refugee Act and Kenya’s international obligations. Where the law specifically exempts a class of persons (refugees with three years residence) from restrictive labour market measures founded on national interest, that exemption must be given effect. A blanket denial citing “national interest” without demonstrating how this specific refugee, in these specific circumstances, poses a threat to that interest, is arbitrary. 58. From the foregoing, the Petition is meritorious. The Petition meets the required threshold for a constitutional Petition. The Petitioner’s direct access to this Court is justified by the ineffective and delayed statutory review process and the fundamental nature of the rights at stake. On the substance, the Court finds that the Respondent’s decision to deny the Petitioner a work permit was procedurally unfair for failure to provide adequate reasons, and substantively unlawful and unreasonable for failing to apply the specific and favourable legal regime governing recognized refugees who have completed three years of residence. This resulted in violations of the Petitioner’s constitutional rights to fair administrative action under Article 47, access to information under Article 35, human dignity under Article 28, and economic rights under Article 43, as informed and strengthened by Kenya’s obligations under the 1951 Geneva Convention and the Refugee Act, 2021. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 11

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59. Consequently, and in the exercise of the Court’s jurisdiction under Articles 23 and 165 of the Constitution, the following final orders hereby issue: a. A declaration is hereby issued that the refusal by the Director of Immigration Services to grant the Petitioner, Muse Farah Warsame, a work permit, without providing adequate and lawful reasons and without due regard to his status as a recognized refugee who has completed over three years of lawful residence in Kenya, violated his rights under Articles 28, 35, 43 and 47 of the Constitution of Kenya, 2010, and Section 28 of the Refugee Act, 2021; b. An order of certiorari is hereby issued removing into this Court and quashing the decision of the Director of Immigration Services contained in the notification dated 23rd May 2019, or any other decision, refusing to grant the Petitioner a work permit; c. An order of mandamus is hereby issued compelling the Director of Immigration Services, his agents, officers, or successors in office, to consider the Petitioner’s application for a Class M work permit de novo, in accordance with the law and this judgment. This fresh consideration must expressly take into account: d. i. The Petitioner’s status as a recognized refugee; ii. The fact that he has completed over three years of lawful residence in Kenya; iii. The recommendation of the Department of Refugee Services dated 14th February 2023; iv. The provisions of Section 28 of the Refugee Act, 2021, particularly subsection (5); v. The obligations under Article 17 of the 1951 Geneva Convention Relating to the Status of Refugees; vi. The duty to provide a clear, intelligible, and lawful statement of reasons for whatever decision is reached; and vii. The Respondent shall conclude this fresh consideration and communicate a reasoned decision to the Petitioner within Sixty (60) Days from the date of this judgment. No orders as to costs. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF DECEMBER 2025. ................................ BAHATI MWAMUYE MBS JUDGE In the presence of : Counsel for the Petitioner -Mr. Omino Counsel for the Respondent – Ms. Were h/B Mr. Weche Court Assistant -Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19338/eng@2025-12-17 12

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