Wakilii

Singh v Principle Immigration Officer, Nairobi (Civil Appeal No. 24 of 1947)

East African Court of Appeal · [1947] EACA 9 · 1947 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya refusal of certiorari application to quash deportation order
Decision
Appeal dismissed; appellant remains subject to deportation order

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that both the decision of the Principal Immigration Officer under section 5(f) deeming a person an undesirable immigrant and the order under section 8 requiring a prohibited immigrant to leave the Colony are purely executive and ministerial acts which cannot be questioned by a writ of certiorari. The Principal Immigration Officer does not act judicially or quasi-judicially under section 5(f) as he is not required to hear the person concerned, disclose information, or decide between competing positions. The order under section 8 is a notice to quit, not a judicial determination, and any challenge to the lawfulness of deportation can be raised in subsequent criminal proceedings if the person fails to leave.

Outcome

Appeal dismissed; appellant remains subject to deportation order

Facts

The appellant, a British subject born in India, came to Kenya at age seven and remained until 1939 when he returned to India for a temporary visit. He was detained in India from 1940 to 1942 for political activities and interned until 1945. His father remained in Kenya and owned property there. In October 1945, the Immigration Officer informed the father there would be no objection to the appellant's re-entry. However, on 13 May 1947, the Principal Immigration Officer deemed the appellant an undesirable immigrant under section 5(f) of the Immigration Ordinance, confirmed by the Governor in Council on 23 May 1947. Through oversight, the appellant was allowed to enter Kenya on 21 August 1947. When discovered, an order dated 27 August 1947 signed on behalf of the Principal Immigration Officer under section 8 was served requiring him to leave within 30 days. The appellant applied for certiorari to quash the order. The Supreme Court refused the application on the ground that the order was a purely executive act not subject to certiorari.

Issues

  1. Whether a writ of certiorari lies to quash an order by the Principal Immigration Officer requiring a prohibited immigrant to leave the Colony under section 8 of the Immigration Ordinance.
  2. Whether the decision of the Principal Immigration Officer under section 5(f) of the Immigration Ordinance deeming a person an undesirable immigrant is a judicial or quasi-judicial act subject to certiorari.
  3. Whether the order under section 8 is a purely executive or ministerial act not subject to certiorari.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Certiorari — Scope of Application — Executive and Ministerial Acts
A writ of certiorari does not lie to quash purely executive or ministerial acts; it applies only to bodies or persons exercising judicial or quasi-judicial functions, that is, those having legal authority to determine questions affecting the rights of subjects and having a duty to act judicially.
Immigration Ordinance — Decision Under Section 5(f) — Nature of Decision
The decision of the Principal Immigration Officer under section 5(f) of the Immigration Ordinance deeming a person an undesirable immigrant based on information from a trusted source is a purely executive decision, not a judicial or quasi-judicial act, as the officer is not required to inform the person, hear representations, or decide between competing positions.
Immigration Ordinance — Order Under Section 8 — Nature of Order
An order by an Immigration Officer under section 8 of the Immigration Ordinance requiring a prohibited immigrant to leave the Colony is a purely executive or ministerial act, being in essence a notice to quit rather than a judicial determination, and cannot be questioned by certiorari.
Judicial and Quasi-Judicial Acts — Test for Certiorari
The test for whether certiorari lies is whether the body or officer is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; the term 'judicial act' is used in contrast with purely ministerial acts.
Deportation — Procedural Safeguards — Criminal Proceedings
Where an order under section 8 of the Immigration Ordinance requires a person to leave the Colony, the order itself is not an effective deportation warrant but a notice; if the person fails to leave, criminal proceedings may be instituted in which the prosecution must prove the person is a prohibited immigrant and the person may raise all defences including that the Ordinance does not apply to him.

Legislation cited (5)

  • Immigration Ordinance (Cap. 62, Laws of Kenya) s.5(f)
  • Immigration Ordinance (Cap. 62, Laws of Kenya) s.8
  • Defence (Admission of Male Persons) Regulations, 1944
  • Ordinance 23 of 1928 s.2
  • Ordinance 20 of 1930 s.7

Cases cited (3)

  • Rex v Electricity Commissioners Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
  • Rex v London County Council Ex parte The Entertainments Protection Association Ltd [1931] 2 KB 233
  • Rex v Woodhouse [1906] 2 KB 535

Full judgment

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Singh v Principle Immigration Officer, Nairobi (Civil Appeal No. 24 of 1947) [1947] EACA 9 (1 January 1947)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.