Law triumphs over love turned sour
By Kamau Muthoni
| July 7th 2021
The High Court has saved a university professor from deportation after her estranged husband refused to sign immigration documents that would guarantee her stay in Kenya.
The woman, named PMC in court documents, is an Indian national.
PMC and her former husband, named CHP, met in India where their love was brewed. However, things fell apart after the couple relocated to Kenya in 2015. The woman was left stranded in Nairobi after they separated.
The woman depended on her partner for the Dependency Pass which guaranteed her to stay in Kenya as a visitor. A Dependency Pass is a document issued to a person whose spouse, parent or guardian is lawfully entitled to enter Kenya in accordance with the citizenship and immigration regulations.
The man's signature was all PMC's passport needed to guarantee her stay in Kenya but it was not forthcoming.
When she applied for an extension of her stay in Kenya, the immigration department rejected it. The woman was told her stay would only be guaranteed if the two, who no longer see eye-to-eye, would make a joint application. PMC blamed her problems on her former partner.
Justice Antony Mrima ruled that it was unfair to condemn the woman without giving her a chance to tell her story.
He said the immigration director’s decision did not adhere to the law.
“There is no proof or allegation the director, in arriving at the impugned decision, adhered to Section 40(4) of the Citizenship Act which commands the director to only issue or revoke a permit on recommendations of the committee. There is further no evidence or allegation that the petitioner’s application was ever dealt with by the permits determination committee,” Justice Mrima said.
The couple first lived in India before moving to Kenya on June 2, 2015. Court records show the newlyweds settled in Nairobi but this was only for a while. Their marriage lasted for six months only.
Justice Mrima described the breakup as another product of irreconcilable differences within a marriage. Things got worse for the relationship between PMC and CHP when the man left their matrimonial home.
After the breakup, the woman filed a maintenance case against which is still pending before a magistrate’s court.
On other hand, CHP filed a divorce case in India.
PMC told the court she went to India for a short stay, on October 31, 2015, and hoped to return to Kenya but her husband secretly had her return ticket cancelled.
The court heard the woman made her own arrangements and returned to Kenya on March 17, 2016. She stayed together with her estranged husband for a month, the court heard.
She testified that she was shocked when her estranged husband reneged on his undertaking to apply for a Dependency Pass and instead crafted a scheme to have her repatriated.
The court heard the professor had planned to apply for a work permit using the Dependency Pass so she could find employment.
In his defence, CHP told the court he took the woman back to her home country after they parted ways. He said he could not apply for the Dependency Pass for her since they have not been staying together since November 2015.
He said he only has scanty knowledge of where she stays and what she does.
He argued that since she made her own plans to return to Kenya and is a qualified professor who can easily get employment, she should not depend on him, even for her stay in Kenya.
“Marriage by itself does not warrant complete dependency of one spouse over the other. As such, compelling the fourth respondent (CHP) to apply for a pass for the petitioner will be an infringement of his right to privacy which is protected under Article 31 of the constitution, the right to association guaranteed under Article 36 of the constitution and the right to equality and freedom from discrimination under Article 27 of the constitution,” he said.
The man argued the woman had admitted to being in Kenya illegally adding that the court should dismiss the case filed against him, Attorney General, and the immigration director with costs.
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