[2017] KEHC 3776 (KLR)
The court found that although the magistrate's court acted within the law at the time of the original order, the subsequent recognition of the applicants as persons of interest by the UNHCR constituted new and material evidence. Deporting the applicants before determination of their asylum claims would violate the...
Source-derived case information.
- Citation
- [2017] KEHC 3776 (KLR)
- Parties
- Applicant: Budurega Eric; Applicant: Iranzi Muragwa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 5 of 2017
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application allowed in part
- Judges
- EM Muchoki
- Legal Topics
- Deportation Orders, Refugee Status, Supervisory Jurisdiction, Asylum Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Budurega Eric
Applicant
Iranzi Muragwa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the deportation order against the applicants should be revised in light of their subsequent recognition as persons of interest by UNHCR.
- 2 Whether deporting the applicants would amount to refoulement contrary to international protection obligations.
Ratio Decidendi
The court found that although the magistrate's court acted within the law at the time of the original order, the subsequent recognition of the applicants as persons of interest by the UNHCR constituted new and material evidence. Deporting the applicants before determination of their asylum claims would violate the principle of non-refoulement. Therefore, the deportation order was revised to allow the applicants to be released to the UNHCR for relocation to Kakuma Refugee Camp pending the outcome of their asylum claims. If their claims are unsuccessful, the original deportation order will stand.
Court Disposition
application allowed in part
Orders
- The applicants shall be released to the office of the United Nations High Commissioner for Refugees for relocation to Kakuma Refugee Camp.
- Their asylum claims shall be determined while at Kakuma Refugee Camp.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL REVISION NO. 5 OF 2017
BUDUREGA ERIC …............................................. 1ST APPLICANT
IRANZI MURAGWA ….......................................... 2ND APPLICANT
VERSUS
REPUBLIC …............................................................ RESPONDENT
RULING
This matter was placed before me under my supervisory jurisdiction. It is sought that the order of the Winam Court that directed that the two applicants herein be deported to their country of origin once they complete their jail terms, be revised. The reason for this is that they came to the country as assylum seekers and the United Nations High Commissioner for Refugees (UNHCR) has declared them to be persons of interest and such to deport them would amount to refoulment. The court heard Counsel for the Applicants and for the Respondent. At the time the Applicants were arraigned in the Winam Magistrate's Court they had not been assessed by the United Nations High Commissioner for Refugees (UNHCR) and had therefore not been declared to be persons of interest. Neither did they intimate to the court that they were assylum seekers. The magistrate's court therefore acted within the law in ordering their deportation upon payment of the fine imposed or completion of the jail term in default. A letter written by Catherine Hamon Sharpe – Assistant Representative (Protection) which declares the Applicants as persons of interest has now been brought to the attention of this court. The same calls for revision of the order for deportation pending determination of their assylum claim.
Accordingly the application is allowed. The applicants shall be released to the office of the United Nations High Commissioner for Refugees for relocation to Kakuma Refugee Camp where their assylum claim will be determined. In the event they are not successful they shall be deported to their country of origin as earlier ordered.
E. N. MAINA
JUDGE
Signed, dated and delivered this 3rd day of August 2017
In presence of:-
Miss Kimani for State
N/A for Applicant
Evon – Court Assistant