IDEMIA files suit against National Assembly

IDEMIA Identity and Security France SAS, formerly known as OT Morpho, has formally filed a substantive Judicial Review motion at the High Court in Nairobi further seeking to quash a recommendation by the National Assembly against the firm.

The filing of the motion early Friday follows the granting of leave to sue the National Assembly that was allowed by Justice John Mativo on Monday.

The Judicial Review application, the firm says, is based on the grounds that IDEMIA is a globally reputable firm that stands to suffer reputation and business loses arising from the National Assembly recommendations to the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP).

Late last month, the National Assembly recommended investigations against IDEMIA for allegedly flouting the Companies Act.

The recommendations, IDEMIA indicates are against the Fair Administrative Act, as the supposed investigations and subsequent criminal prosecution by the DCI and ODPP are meant to justify a preconceived outcome – which unfair administrative action the Court must curtail.

Through lawyer Wilfred Lusi, IDEMIA acknowledges that it is the worldwide leader in police biometric systems as its biometric algorithms and solutions are used by more than 80 respected police forces around the world including the US’s Federal Bureau of Investigations(FBI), Interpol, Germany’s BKA, and numerous African countries such as Kenya, South Africa, Chad, Botswana or Ethiopia; and Governs its business, across the world including in Kenya, with the highest of standards of ethics and legal compliance.

IDEMIA in its Court papers filed at the Nairobi’s Milimani Law Courts, says that the National Assembly recommendations were based on failure to register locally before doing business in Kenya, a requirement which was not a legal condition at the time it signed its contractual agreement with the IEBC in March 2017.

“The preceding notwithstanding, the Regulations operationalising the requirement for local registration by a foreign company was published by the Registrar of Companies on the 30^thof June, 2017, under Legal Notice No 103 of 2017: whereas the subject contract between the IEBC and the ex-parte Applicant had been executed on the 31^st of March, 2017: a whole three (3) months prior to the coming effect of this impugned law, and the 1st Respondent’s actions are a most unjust attempt at retrospective – indeed retrogressive – application of an undefined, vague and uncertain law and/or particulars of the law,” says the firm in papers filed in Court.

The company has listed the National Assembly, the hon Speaker of the national assembly and the clerk of the national assembly as respondents.

The Director of Public Prosecution, The Director, Criminal Investigations, IEBC is listed as interested parties.

The firm says it is not opposed to any investigations by any state agency or organ but says it contests unfair administrative action against it by the National Assembly without giving it a fair hearing.

The company says it participated in an international open competitive tender and delivered on its mandate, and accuses National Assembly of engaging in a political witch hunt.

The firm says while the National Assembly recommends investigations, it has on the other hand gone ahead and directed IEBC to recover the sum paid to it, which it claims shows that the house is working with a predetermined agenda.

The firm says it was never given prior and adequate notice of the nature of the allegations against it, failure to inform it for the reasons for the contemplated action, against it; and, was never given ample opportunity to defend itself or be heard on the allegations, obtain legal representation, review or appeal the decisions and or a formal communication of the decision to make such adverse recommendations against it thereof.

The firm, whose part of the money owed by IEBC is yet to be paid, asks the High Court to quash the decision by the National Assembly.

In its Court papers, IDEMIA disclosed that it is a globally reputable company with more than 135 governmental customers (and growing) in civil identity solutions and currently serves clients in 180 countries. The firm further confirms that it is the global natural leader in the identity industry, combining the strongest customer references and project experience: with global annual revenue of USD 3 Billion.