[2013] KEHC 5406 (KLR)
The court found that the petitioner had established an arguable case regarding the potential violation of refugees' rights by the government's directive to relocate urban refugees to camps. Given Kenya's constitutional and international obligations to protect refugees, and recognizing refugees as vulnerable persons,...
Source-derived case information.
- Citation
- [2013] KEHC 5406 (KLR)
- Parties
- Petitioner: Kituo Cha Sheria; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 19 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Conservatory Orders
- Outcome
- Conservatory order granted; implementation of the government's directive suspended pending further orders.
- Judges
- DAS Majanja
- Legal Topics
- Fundamental Rights, Refugee Protection, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kituo Cha Sheria
Petitioner
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Conservatory Orders
Legal Issues
- 1 Whether the government's directive to relocate urban refugees to camps violates constitutional and international obligations regarding the rights of refugees.
- 2 Whether a conservatory order should issue to prevent implementation of the directive pending hearing of the petition.
Ratio Decidendi
The court found that the petitioner had established an arguable case regarding the potential violation of refugees' rights by the government's directive to relocate urban refugees to camps. Given Kenya's constitutional and international obligations to protect refugees, and recognizing refugees as vulnerable persons, the court determined that it was necessary to issue a conservatory order to prohibit implementation of the directive pending the hearing and determination of the petition. This was to ensure that the rights of refugees were not prejudiced before the court could fully consider the merits of the case.
Court Disposition
Conservatory order granted; implementation of the government's directive suspended pending further orders.
Orders
- A conservatory order is issued prohibiting any State officer, public officer, or agent of the Government from implementing the decision contained in the Press Release dated 18th December 2012 pending further orders of the court.
- The order shall remain in force until 4th February 2013 when the matter will be fixed for directions and further orders as to hearing of the petition.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Petition 19 of 2013
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KITUO CHA SHERIA.....................................................................PETITIONER
AND
THE ATTORNEY GENERAL.....................................................RESPONDENT
RULING/DIRECTIONS
This is a case filed in public interest by Kituo Cha Sheria seeking to enforce the rights and fundamental freedoms of refugees currently in Kenya. By a notice published in the Daily Nation on 18th December 2012, the Commissioner of Refugees Affairs issued a press release where it stated that the Government of Kenya has decided to stop reception, registration and close down all registration centres in urban areas with immediate effect. It stated that all asylum seekers/refugees will be registered and hosted at the refugee camps. It added that all asylum seekers and refugees from Somali should report to Dadaab refugee camps while asylum seekers from other countries should report to Kakuma refugee camp. The notice directed UNHCR and other partners serving refugees to stop providing direct services to asylum seekers and refugees in urban areas and transfer the same services to refugee camp.
Annexed to the founding affidavit before the court is a letter from the Office of the President dated 16th January 2013 evincing the Government’s intention to move all urban refugees to the Dadaab and Kakuma Refugee Camps and ultimately to return to their home countries after the necessary arrangements are put in place.
I am satisfied that in view of the international obligations Kenya has with respect to refugees and the fact that under our Constitution refugees are vulnerable persons, the petitioner has an arguable case before the court. In order to secure the hearing of the grievances, I direct as follows;
(1)A conservatory order be and is hereby issued prohibiting any State officer, public officer agent of the Government from implementing the decision evidenced by and/or contained in the Press Release dated 18th December 2012 pending further orders of this court.
(2)The order shall remain in force until 4th February 2013 when the matter will be fixed for directions and further orders as to hearing of the petition.
(3)The respondents shall file and serve the replying affidavit within 7 days from today and the petitioner shall file its response within 4 days thereafter.
DATEDand DELIVERED at NAIROBI this 23rd day of January 2013
D.S. MAJANJA
JUDGE