[2024] KEHC 16021 (KLR)

Guixiang v Cabinet Secretary; Ministry of Interior & 3 others (Criminal Miscellaneous Application E393 of 2023) [2024] KEHC 16021 (KLR) (Crim) (18 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16021 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Miscellaneous Application E393 of 2023

LN Mutende, J

December 18, 2024

Between

Shao Guixiang

Applicant

and

Cabinet Secretary; Ministry Of Interior

1st Respondent

Directorate Of Immigration

2nd Respondent

The Attorney General Of Kenya

3rd Respondent

The Director of Public Prosecutions Of Kenya

4th Respondent

Ruling

1. Shao Guixiang, the Applicant, approached this court through an application dated 11th October, 2023 seeking temporary orders of injunction against the Respondents, to bar them from detaining or forcefully removing him from the country.

2. The application is premised on grounds that the applicant was arraigned in Milimani Court in CMCC E133 of 2022 where he pleaded guilty following misadvise by Immigration Officials, lack of legal representation and minimal understanding of English, as he had a foreign certificate.

3. That he had a valid work permit and did not understand the repercussions of pleading guilty. That being a foreign investor he applied and obtained a foreign certificate No. 568421 hence was wrongfully repatriated to China in February, 2022.

4. That it would appear that the applicant exited the country voluntarily on 24th February, 2022 due to the work permit that was not cancelled, a permit that enabled him to return to Kenya lawfully through Jomo Kenyatta International (JKIA) on 2nd March, 2022.

5. That following wrong advice by the applicants’ lawyers he unsuccessfully appealed to the wrong forum and was pursued by the respondents to ascertain how he returned to the country. Following directions by the Judge in the erroneous suit he filed the instant application.

6. That in September, 2023 he was granted bond by the respondents until 12th October 2023 to regularize his stay in Kenya which calls for the court to revise the orders and proceedings of the lower court due to incorrectness.

7. The respondents through Alfred Omangi, an Assistant Director, Immigration deposed an affidavit in reply. He deponed that indeed the applicant holds a foreign certificate Number 568421 issued by the office of the 2nd Respondent. He was arrested by the office of the Directorate of Criminal Investigations for committing immigration offences, in particular, violating Section 53(1) (m) as read with Section 53(2) of the Citizenship and Immigration Act by working and engaging foreigners in gainful employment without obtaining prerequisite work permits. That upon being indicted he voluntarily admitted the charges and a repatriation order was issued. And after returning from China he was put on a watch list.

8. That his continued stay in the country was following an appeal that he had an ongoing dispute over property with a fellow Chinese National that was before a competent tribunal. That circumstances having shown a justifiable cause, the applicant was issued with an immigration bond and allowed continued stay in Kenya and he obtained a class G. permit as an investor. In the result, his movement was not restricted and to date he remains in the county legally, and the application having been overtaken by events, no violations and/or breach of rights have been espoused.

9. The application was disposed through written submissions with only the applicant complying with directions agreed on by parties. It is urged that the applicant was denied a fair trial by being misadvised to admit the charges without legal representation. That the applicant’s valid work permit and lawful re-entry into Kenya are evidence of his compliance with immigration laws, hence the respondents’ ongoing harassment and attempts to expel him contravenes the regional safeguard against arbitrary and unjust expulsion. Reliance was placed on Article 14 of the international covenant on civil and political rights (ICCPR) and Article 9 of the Universal Declaration of Human Rights (UDHR).

10. That no valid basis has been presented which calls for orders preventing further harassment or expulsion. That his constitutional and human rights were flagrantly violated during his arrest and charging process which breached Article 25 (c) of the Constitution. That Article 47 of the Constitution that mandates fair administrative action was violated through coercion and misinformation which rendered the plea equivocal.

11. That the initial ejection of the applicant was procedurally and substantially improper as the applicant had a valid work permit and foreign certificate at the time of his arrest. Reliance was placed on the case of Law Society of Kenya v The Attorney General & others [2018] eklr where a foreign national without a valid work permit was wrongfully deported following proceedings that were conducted in English language that he did not understand; and, the High Court found the deportation to be unlawful.

12. Also cited is the R v Secretary of State for the Home Department [2019] EWCA Civ 2016, a case that involved a foreign national who had a valid work permit but was charged with immigration offences. The court proceedings were conducted in English, a foreign language without adequate translation or legal assistance. The Court of Appeal found that the guilty plea was obtained under duress given the language barrier and lack of proper legal representation.

13. I have considered the application, affidavit in support and opposition and arguments by the applicant. This court has been moved pursuant to Section 362 of the Criminal Procedure Code that provides thus:The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as tothe regularity of any proceedings of any such subordinate court.

14. The provision of law confers on the High Court supervisory power over subordinate courts to review and revise orders that are irregular or illegal. The High Court ensures that subordinate courts act within their jurisdiction and in accordance with the law; errors and injustices being corrected for purposes of ensuring that integrity of the judicial system is maintained.

15. I have been called upon to interrogate the sentence meted by the subordinate court. Revision/Review of a sentence following a conviction on plea of guilty is limited to the legality. A High Court can only interfere with the sentence on the ground of an illegality having occurred or on account of the sentence being excess and unreasonable.

16. This is an applicant who chose not to include a prayer of having lower court proceedings availed; and, also did not annex the proceedings of the lower court to his supporting documents. These allegations stand unsupported. The only documents attached were copies of the charge sheet and work permit.

17. The right to fair trial is guaranteed by the Constitution which includes the right to legal representation and a plea must be read in a language that an accused understands. Failure to comply with the law means there was lack of clarity or certainty. In Adan v Republic [1973] EA 445 the Court of Appeal stated thus:“(i)The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands;(ii)The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded;(iii)The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts;(iv)If the accused does not agree with the facts or raises any question of his guilt his reply must be recorded and change of plea entered;(v)If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused’s reply should be recorded.”

18. The applicant who alleges is duty bound to demonstrate that the plea was not unequivocal which resulted into the integrity of the judicial process being compromised. This was not done as evidence was not presented before this court.

19. It is complained that the applicant was wrongfully arrested, prosecuted and repatriated to his country of origin. He later returned to the country. He argued his case before the immigration department, and, having shown a justifiable cause he has been allowed to continue staying in the country having been issued with a class G. permit as an investor. A class G. permit under the Immigration and Citizenship of Kenya is a specific type of work permit that would allow an individual to carry out investment activities in the country. A permit that allows foreign investors to contribute to the economy. It is averred and not contradicted that the issuer used discretion bestowed upon the State Department of Immigration.

20. The main relief sought is issuance of an injunction preventing the respondents from detaining him and forcefully removing him from the country. Class G. permit would ordinarily be issued for a specific duration and can also be renewable when there is compliance with immigration laws. Granting such orders would be overstepping the criminal mandate of a criminal court which has the responsibility of hearing and determining cases involving violation of criminal law which includes determining the guilty and innocence of an indicted person; but not extending stay of a foreigner in the country.

21. As to the prayer of granting any other relief, issues that subsisted were addressed between the parties such that the applicant’s right to freedom and movement was not under threat at the time of bringing the application which means that the court cannot interfere with the discretion of respondent.

22. The jurisdiction under Section 362 of the Criminal Procedure Code, is limited to illegalities or improper orders made by subordinate courts and tribunals but not State Officers or constitutional offices. In the result orders sought would not issue.

23. The upshot of the above is that the application is unmeritorious. Accordingly, it is dismissed.

24. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 18th DAY OF DECEMBER, 2024. L. N. MUTENDEJUDGE