[2016] KEHC 3303 (KLR)
The High Court found that the applicant was both a minor and a registered refugee at the time of her conviction for being in Kenya illegally. The trial court failed to consider these facts, resulting in a violation of her constitutional and statutory rights, particularly the best interests of the child principle....
Source-derived case information.
- Citation
- [2016] KEHC 3303 (KLR)
- Parties
- Applicant: D M M; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 14 of 2016
- Procedural Posture
- Criminal Case / Ruling on Application to Set Aside Conviction and Sentence
- Outcome
- Conviction quashed and substituted; sentence varied; repatriation order set aside.
- Judges
- GMA Dulu
- Legal Topics
- Child Offenders, Refugee Rights, Illegal Presence, Best Interests of Child, Judicial Review, 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
D M M
Applicant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Application to Set Aside Conviction and Sentence
Legal Issues
- 1 Whether the applicant, a minor and registered refugee, was lawfully convicted and sentenced for being in Kenya illegally.
- 2 Whether the trial court's failure to consider the applicant's status as a child and registered refugee violated constitutional and statutory protections.
- 3 Whether the imposed fine and repatriation order were lawful and appropriate under the circumstances.
Ratio Decidendi
The High Court found that the applicant was both a minor and a registered refugee at the time of her conviction for being in Kenya illegally. The trial court failed to consider these facts, resulting in a violation of her constitutional and statutory rights, particularly the best interests of the child principle. The High Court held that, despite the applicant's guilty plea, the conviction for being unlawfully present in Kenya was improper. The conviction was quashed and substituted with a finding of being illegally outside the refugee camp, an offence with a lower maximum fine. The imposed fine and default prison sentence were set aside, and the excess fine paid was ordered to be...
Court Disposition
Conviction quashed and substituted; sentence varied; repatriation order set aside.
Orders
- The conviction for being unlawfully present in Kenya is quashed.
- A finding of being illegally outside the refugee camp contrary to section 25(f) of the Refugees Act 2006 is substituted.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO. 14 OF 2016
D M M……………………...………..……...APPLICANT
VERSUS
REPUBLIC.…..…..….…….....................RESPONDENT
RULING
Through an application by way of Notice of Motion dated 25th July 2016 brought under section 13 (b), 16, 23 (1) (2) and (4) of the Refugee Act 2006, section 4 (3) and section 7 of the Fair and Administration of Justice Act as well as Article 50 and 159 of the Constitution of Kenya, this court has been asked to set aside judgment in Garissa CM Criminal Case No. 162 of 2016 in which D M K also known as D M M was convicted of being in Kenya illegally contrary to section 53 (j) of the Kenya Citizenship and Immigration Act No. 12 of 2011 and fined Kshs. 100,000/= in default to serve 1 year imprisonment and also ordered to be repatriated to Somalia on 15th February 2016.
The application is premised on the fact that the applicant is a minor and was registered as a refugee at Hagadera Refugee Camp but was found outside the refugee camp and charged. At the trial the minor girl did not bring this position of facts to the trial court. However it was later discovered that in fact she was such a registered refugee and as a consequence the Refugee Consortium of Kenya filed the application on her behalf. Annexed to the application is a document of proof of refugee registration of the applicant with UNHCR in August 2002. Her name is listed as No. 2 as D M K a female child born on 1st January 1998.
As such, other than being a minor aged below 18 years, the applicant was also a registered refugee as at the time of trial and conviction and sentencing.
I am mindful of the fact that the applicant was recorded as having pleaded guilty to the charge. She also did not bring to the attention of the court that she was a registered refugee. However Article 50 of the Constitution of Kenya 2010 requires that in matters to do with children the best interests of the child be paramount.
On the facts and documents before me, I am convinced that the applicant is a child as defined under Children Act of Kenya. From the documents placed before me, I am also satisfied that the applicant was a registered refugee as at the time she was convicted.
Though there is no specific provision allowing this court to review the orders of a trial court simply on the basis that some information which should have been disclosed there was not disclosed by the convict, the Constitution of Kenya 2016 requires that special treatment be given to children. As the High Court is also the Constitutional court in this country, I am of the view that where there is a clear violation of Constitutional provisions by a subordinate court, this court can intervene in order to correct the situation.
In the circumstances of this case, I quash the conviction for the applicant for being unlawfully present in Kenya. I substitute thereto a finding that she was illegally outside the refugee camp contrary to section 25 (f) of the Refugees Act of 2006 as requested by the Prosecuting Counsel.
The applicant paid the fine of 100,000/= imposed on her. The Children’s Act does not prohibit the imposition of a fine on a child offender. However the maximum sentence of a fine for being outside the refugee camp without lawful authority is 20,000/=. I thus set aside the fine of Kshs. 100,000/= and the default prison sentence and order that the applicant will pay a fine of Kshs. 20,000/=. In effect the extra Kshs. 80,000/= which she has paid will be refunded to her so that the State remains with Kshs. 20,000/=.
The repatriation order is inappropriate. I thus set aside the order for repatriation to Somalia imposed by the trial court. The applicant will instead be handed over to the UNHCR and relevant Government of Kenya authorities which deal with refugees.
It is so ordered.
Dated and delivered at Garissa this 2nd day of September 2016
GEORGE DULU
JUDGE