[2013] KEHC 3167 (KLR)
The court found that although the applicant appeared to have admitted the offences, the production of a Kenyan passport raised doubt about the prosecution's case regarding his citizenship status. Given this doubt, the court determined that it would be just to stay the repatriation order until the intended appeal is...
Source-derived case information.
- Citation
- [2013] KEHC 3167 (KLR)
- Parties
- Applicant: Abdiratah Shafil Omar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 75 of 2013
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Stay of Repatriation and Bail Pending Appeal
- Outcome
- Application partially allowed. Stay of repatriation granted pending appeal. Bail terms set for release pending appeal.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Bail Pending Appeal, Repatriation Orders, Plea of Guilty, Immigration Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Abdiratah Shafil Omar
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Stay of Repatriation and Bail Pending Appeal
Legal Issues
- 1 Whether the applicant should be repatriated pending the hearing and determination of his appeal.
- 2 Whether the applicant is entitled to bail pending appeal after conviction and payment of fines.
- 3 Whether the applicant's plea and conviction were proper given the alleged Kenyan citizenship.
Ratio Decidendi
The court found that although the applicant appeared to have admitted the offences, the production of a Kenyan passport raised doubt about the prosecution's case regarding his citizenship status. Given this doubt, the court determined that it would be just to stay the repatriation order until the intended appeal is heard and finalized. The court further held that the fines paid in fulfillment of the lower court's order could not be converted into cash bail. Instead, the applicant was required to deposit a new cash bail or execute a bond with sureties as a condition for release pending appeal. The court also imposed reporting conditions to the police station until the appeal is determined...
Court Disposition
Application partially allowed. Stay of repatriation granted pending appeal. Bail terms set for release pending appeal.
Orders
- The repatriation order made on 28th February, 2013 is stayed until the intended appeal is heard and finalized.
- The applicant shall deposit a cash bail of Kshs. 100,000 or execute a bond of Kshs. 200,000 with two sureties of equal sum.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Miscellaneous Criminal Application 75 of 2013 [if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif]
ABDIRATAH SHAFIL OMAR…………………………......……… APPLICANT
VERSUS
REPUBLIC ……………………………………………………. RESPONDENT
RULING
This is an application by way of Notice of Motion under Section 356 (1) and 357 (1) of the Criminal Procedure Code for orders that the court grants a stay of the repatriation order made on 28th February, 2013 in Criminal Case No. 298 of 2013 against the applicant. There is also a prayer that, pending the hearing of the appeal the applicant be granted bail.
The grounds upon which these prayers are made are that, the applicant is a Kenyan citizen and that he did not understand the charge that faced him. If the orders are not granted he may be repatriated to Somalia any time. The application is supported by an affidavit sworn by one Mohammed Suleiman Ibrahim deponing, inter alia, that the applicant is a Kenyan citizen.
The record before me shows that the applicant was charged with the offence of obtaining registration by false pretences contrary to Section 320 of the Penal Code in count I, and in count II being unlawfully present in Kenya contrary to Section 53 (1) (j) as read with Section 53 (2) of the Kenya Citizenship and Immigration Act No. 12 of 2011. The record shows that there was interpretation in Kiswahili and in answer to count I the applicant is said to have answered,“I obtained registration by false pretences”. With respect to count II ,he is recorded to have answered, “I am in Kenya unlawfully”.
The learned trial magistrate did not record a plea of guilty after the applicant responded to the two counts. The prosecutor then set out the facts to which the applicant answered “facts are true and properly put”. He was then convicted of his own plea of guilty and asked for leniency in mitigation. He was sentenced to pay a fine of Kshs. 50,000/= or to serve 6 months imprisonment in count I and in count II, he was sentenced to pay a fine of Kshs. 150,000/= or serve 12 months imprisonment. On payment of the fine or completion of prison sentences he was to be repatriated. These orders were made on 28th February, 2012.
The fines were paid on 1st March, 2013 according to the documents annexed to the application. It is now alleged in the affidavit in support of the application that when the fine was paid by the deponent he thought that it was for payment of bail. He was however informed by the court registry that the payment was for a fine. The receipt issued by the court clearly shows that it was for “deposits fines” and that could not be mistaken for any cash bail. The sentence of payment of fine cannot be separated from that of repatriation.
The only issue before me is whether or not the applicant should be repatriated. Annexed to the application is a copy of a Kenyan Passport No. A173097 issued on 1st July, 2009. That passport, I believe, could not have been procured without the use of an identity card which the applicant is said to have obtained by false pretences on 16th October, 2007.
Whereas the applicant appears to have admitted the offences, the annexure of the copy of the passport throws some doubt onto the prosecution case. That being the case, the application succeeds to the extent that the repatriation order will be stayed until the intended appeal is heard and finalized.
I am unable to convert the amount paid as fine in fulfillment of the lower court order made on 28th February, 2012. The applicant shall now have to deposit a cash bail of Kshs. 100,000/= or execute a bond of Kshs. 200,000/= with two sureties of equal sum. He shall report to the officer in charge, Kilimani Police Station immediately on his release and thereafter after every two weeks until the order is vacated by the court or his appeal is heard and determined, whichever is earlier.
Orders accordingly.
Dated and delivered at Nairobi this 29th Day of May, 2013.
A.MBOGHOLI MSAGHA
JUDGE
[if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]