[2010] KEHC 4014 (KLR)
The court found that, according to Section 13 of the Refugees Act, 2006, individuals who have applied for recognition as refugees or who are already recognized as refugees are immune from prosecution for unlawful presence in Kenya until their application is determined and any appeals are exhausted. The applicants,...
Source-derived case information.
- Citation
- [2010] KEHC 4014 (KLR)
- Parties
- Applicant: Abdi Noor Saidi; Applicant: Abai Noor Mohammed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 58 of 2010
- Procedural Posture
- Criminal Revision / Application for Revision Under Section 362 & 364 of the Criminal Procedure Code
- Outcome
- conviction quashed; applicants to be handed over to UNHCR
- Judges
- MJA Emukule
- Legal Topics
- Unlawful Presence, Refugee Protection, Criminal Revision, Prosecution Immunity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Noor Saidi
Applicant
Abai Noor Mohammed
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Application for Revision Under Section 362 & 364 of the Criminal Procedure Code
Legal Issues
- 1 Whether the prosecution and conviction of the applicants for unlawful presence in Kenya was lawful under the Refugees Act, 2006.
- 2 Whether the applicants, as refugees or asylum seekers, are immune from prosecution for unlawful presence pending determination of their refugee status.
Ratio Decidendi
The court found that, according to Section 13 of the Refugees Act, 2006, individuals who have applied for recognition as refugees or who are already recognized as refugees are immune from prosecution for unlawful presence in Kenya until their application is determined and any appeals are exhausted. The applicants, being refugees or bona fide applicants for refugee status, should not have been prosecuted under Section 25(a) of the Act. The prosecution and conviction were therefore unlawful. Exercising its revisionary jurisdiction under the Criminal Procedure Code, the court quashed the convictions and ordered that the applicants be handed over to the U.N.H.C.R. for repatriation to the...
Court Disposition
conviction quashed; applicants to be handed over to UNHCR
Orders
- The convictions of the applicants are quashed.
- The applicants are to be handed over to the U.N.H.C.R. for repatriation to the Kakuma Refugee Camp.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Revision 58 of 2010
ABDI NOOR SAIDI…………………………1ST APPLICANT
ABAI NOOR MOHAMMED………………...2ND APPLICANT
VERSUS
REPUBLIC……………………………....……..RESPONDENT
1st February, 2010
Coram: Anyara Emukule - Judge
Court clerk - Kosgei
In Chambers
RE: Application for Revision under Section 362 & 364 - Criminal Procedure Code, Cap. 75,
Laws of Kenya - Nakuru CMCr.C No. 436 of 2010 Republic vs. Abdi Noor Saidi & 2 Others
COURT ORDER
The Applicants Abdi Noor Saidi and Abai Noor Mohamed were charged and convicted of the offence of being unlawfully present in Kenya contrary to Section 25(a)of theRefugees Act 2006 (No. 13 of 2006).
According to the letter dated 26th January 2010 by the firm of G. C. Nyongesa & Co. Advocates, of Hyrax Building Ground Floor, Nakuru, the Appellant is a refugee and was arrested in a bus travelling to the U.N.H.C.R. Office in Kakuma - Turkana District. Counsel says that the Applicants had left their documents at the U.N.C.H.R. Office at Kakuma and had gone to the U.N.H.C.R. Head Office to pick some documents.
Under the provisions of Section 13 of the Refugees Act, no proceedings shall be instituted against any person or any member of his family in respect of his unlawful presence within Kenya -
(a) if such a person has made a bona fide application under section 11 for recognition as a refugee, until a decision has been made on the application and, where appropriate, such person has had an opportunity to exhaust his right of appeal under that section; or
(b) if such person has become a refugee.
If the instructions of Counsel for the Applicants are true, the Applicants being refugees in Kenya are not liable to be prosecuted in respect of his unlawful presence within Kenya. This being so, the prosecution of the Applicants under Section 25(a) was unlawful.
In view of the powers vested in this court by Section 364(1) and 354(3)(i)of theCriminal Procedure Code, (Cap. 75 Laws of Kenya), I quash the conviction of the Applicants, and direct that the Applicants be handed over to the U.N.H.C.R. for repatriation to the U.N.C.H.R. Refugee Camp at Kakuma.
Dated at Nakuru this 1st day of February 2010
M. J. ANYARA EMUKULE
JUDGE