[2012] KEHC 416 (KLR)
The court found that the appellants were not subjected to a refugee status determination before the deportation order was issued, contrary to the requirements of international and domestic law on non-refoulement and refugee protection. The court held that it does not have the authority to confer refugee status...
Source-derived case information.
- Citation
- [2012] KEHC 416 (KLR)
- Parties
- Appellant: Hussein Abdillahi; Appellant: Yusuf Noor; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 227 of 2012
- Procedural Posture
- Criminal Appeal / Ruling on Notice of Motion for Stay of Deportation and Referral to Refugee Status Determination
- Outcome
- Deportation order stayed; matter referred to Commissioner for Refugees for status determination.
- Legal Topics
- Immigration Offences, Deportation Orders, Refugee Status Determination, Non Refoulement
- 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
Hussein Abdillahi
Appellant
Yusuf Noor
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Notice of Motion for Stay of Deportation and Referral to Refugee Status Determination
Legal Issues
- 1 Whether the deportation order against the appellants should be stayed pending determination of their refugee status.
- 2 Whether the appellants were entitled to a refugee status determination before deportation.
- 3 Whether the court can confer refugee status or must refer the matter to the Commissioner for Refugees.
Ratio Decidendi
The court found that the appellants were not subjected to a refugee status determination before the deportation order was issued, contrary to the requirements of international and domestic law on non-refoulement and refugee protection. The court held that it does not have the authority to confer refugee status directly and that this function is vested in the Commissioner for Refugees under the Refugees Act. Accordingly, the court invoked its powers under section 358(1) of the Criminal Procedure Code to order a report from the Commissioner for Refugees on the appellants' admissibility as refugees. The deportation order was stayed pending the outcome of this report, ensuring that the...
Court Disposition
Deportation order stayed; matter referred to Commissioner for Refugees for status determination.
Orders
- A report from the Commissioner of Refugees on the applicants' admissibility as refugees is ordered.
- The deportation order is stayed pending the report from the Commissioner of Refugees.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Criminal Appeal 227 of 2012 [if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][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]
HUSSEIN ABDILLAHI
YUSUF NOOR ….................................................................... APPELLANTS
VERSUS
REPUBLIC ….........................................................................RESPONDENT
RULING
This is a Notice of Motion application brought under section 362(1), 364(1) 365 of the Criminal Procedure Act Article 33 of the 1951 Convention relating to status of refugees, Article 2(3) of the 1969 OAU Convention on specific Refugee problems in Africa, Article 2(6) of the Constitution.
It seeks orders for setting aside and or reversing the ruling by the Principal Magistrate's Court Taveta for the deportation and non-refoulement of the appellants back to their country of origin and order that the applicants be handed over to the Department of Refugees Affairs and admittance as refugees to Refugee Camps.
The grounds are that the appellants were charged with the offence of being unlawfully present in Kenya contrary to section 3(1) of the Immigration Act Cap 172 Laws of Kenya they pleaded guilty were Convicted, fined and an order for deportation issued.
It is the appellants contention that it was not proved that they were a danger to society as required under the 1951 OAU Convention on the principal of non-refoulement to warrant deportation.
Secondly that they were not subjected to refugee status determination before the decision to deport them.
Mr. Jami for the state has given an exposition of the refugee Act and has rightly invited this Court to invoke the provisions of section 358 of the Criminal Procedure Code which gives this Court the power to take further evidence. This is after conceding to the fact that before the deportation orders were made the applicants were not subjected to refugee status determination.
Section 7 of the Refugees Act No. 13 of 2006 provides for the establishment of a Commissioner for Refugees whose functions among others are to receive and process applications for refugee status. I am in agreement with Mr. Jami for the state that the Court itself cannot confer refugee status on an applicant without the input by way of processing by the Commissioner of Refugees.
I do therefore invoke the provisions of section 358(1) of the Criminal Procedure Code and order for a report from the Commissioner of Refugees on the applicants admissibility as refugees.
The deportation order is stayed pending the report on 7th February, 2013.
Ruling read and dated this 7th day of December, 2012.
…........................
M. MUYA
JUDGE
In the presence of:-
Miss Mwaura for the State
Court clerk – Musundi