[2012] KEHC 5484 (KLR)

[2012] KEHC 5484 (KLR)

The court found that while the applicants pleaded guilty to being unlawfully present in Kenya, the facts did not establish how long they had been in the country or whether they had an opportunity to comply with the Refugees Act by presenting themselves to the authorities within the prescribed thirty days. The applicants were asylum seekers fleeing persecution and intended to regularize their status. The court recognized the overriding principle of non-refoulement and the statutory protections afforded to refugees and asylum seekers under Kenyan law and international conventions. Consequently, the court held that the applicants should not be penalized for their illegal entry while seeking...

Citation
[2012] KEHC 5484 (KLR)
Parties
Applicant: Rada Haile; Applicant: Abel Burhamu; Respondent: Republic
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
24 April 2012
Case Number
Criminal Revision 18 of 2012
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Conviction and Sentence
Outcome
Application for revision allowed. Conviction and sentence set aside. Applicants to be released and given time to regularize their status.
Legal Topics
Unlawful Presence, Refugee Status Determination, Non Refoulement, Immigration Offences
Source Language
English
Criminal Law Administrative Law Unlawful Presence Refugee Status Determination Non Refoulement Immigration Offences

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Parties

Rada Haile

Applicant

Abel Burhamu

Applicant

Republic

Respondent

Procedural Posture

Criminal Revision / Ruling on Application for Revision of Conviction and Sentence

Legal Issues

  1. 1 Whether the applicants, as asylum seekers, were properly convicted and sentenced for being unlawfully present in Kenya.
  2. 2 Whether the applicants were entitled to protection under the Refugees Act, 2006 and international refugee law.
  3. 3 Whether the principle of non-refoulement applies to the applicants' circumstances.

Ratio Decidendi

The court found that while the applicants pleaded guilty to being unlawfully present in Kenya, the facts did not establish how long they had been in the country or whether they had an opportunity to comply with the Refugees Act by presenting themselves to the authorities within the prescribed thirty days. The applicants were asylum seekers fleeing persecution and intended to regularize their status. The court recognized the overriding principle of non-refoulement and the statutory protections afforded to refugees and asylum seekers under Kenyan law and international conventions. Consequently, the court held that the applicants should not be penalized for their illegal entry while seeking...

Court Disposition

Application for revision allowed. Conviction and sentence set aside. Applicants to be released and given time to regularize their status.

Orders

  • Applicants to be set free forthwith.
  • Applicants to be released to the United Nations High Commissioner for Refugees, Nairobi and/or the Department of Refugee Affairs.