[2011] KEHC 994 (KLR)
The court found that the lower court failed to make sufficient inquiries into the reasons for the accused persons' entry into Kenya, particularly in light of the prevailing circumstances in Somalia and the possibility that some or all of the accused could be refugees. The absence of such inquiry rendered the...
Source-derived case information.
- Citation
- [2011] KEHC 994 (KLR)
- Parties
- Applicant: Marian Ghai Mohhamed & 6 Others; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 445 of 2011
- Procedural Posture
- Criminal Revision / Revision of Lower Court Conviction and Sentence
- Outcome
- convictions quashed, sentences set aside, repatriation order set aside, accused to present to UNHCR within 14 days
- Legal Topics
- Refugee Status Determination, Criminal Conviction Review, Sentencing and Quashing, Repatriation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marian Ghai Mohhamed & 6 Others
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision of Lower Court Conviction and Sentence
Legal Issues
- 1 Whether the lower court made adequate inquiries into the reasons for the accused persons' presence in Kenya before convicting them.
- 2 Whether the accused persons qualified for refugee status or protection under prevailing circumstances in Somalia.
- 3 Whether the convictions and sentences imposed by the lower court were safe and lawful.
Ratio Decidendi
The court found that the lower court failed to make sufficient inquiries into the reasons for the accused persons' entry into Kenya, particularly in light of the prevailing circumstances in Somalia and the possibility that some or all of the accused could be refugees. The absence of such inquiry rendered the convictions unsafe. The court emphasized that only specialized agencies such as the UNHCR or the Department of Refugees Affairs are competent to determine refugee status. Consequently, the convictions and sentences were quashed, and the order for repatriation was set aside. The accused were ordered to present themselves to the UNHCR for refugee status determination within 14 days.
Court Disposition
convictions quashed, sentences set aside, repatriation order set aside, accused to present to UNHCR within 14 days
Orders
- The convictions of the accused persons are quashed.
- The sentences imposed by the lower court are set aside.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL REVISION CASE NO. 445 OF 2011
MARIAN GHAI MOHHAMED & 6 OTHERS…………… …….APPLICANTS
VERSUS
REPUBLIC………………… …………………..APPLICANT
COURT -ON REVISION
I have under Section 362 of the Criminal Procedure Code called for and received the lower court record following a letter written to this court by Charles Kariuki & Company Advocates dated 25/10/2011.
The record does not in any way indicate that the accused persons save for Accused 5 were running away from persecution of any nature and neither did they express any fear over their lives. Search for food, treatment and employment does not in itself turn out to cover one as a Refugee.
However, given the situation prevailing in Somalia now, it’s important that the Hon. Learned Magistrates dealing with this kind of persons appearing before them take extra care while taking their pleas. Let them state exactly what has brought them to Kenya. This will enable the court to determine whether it should refer the persons to the United High Commissions for Refugees (UNHCR) offices for determination of their Refugee status.
In their mitigation, the accused persons mentioned they were here for various reasons e.g. employment, treatment, education, food etc.
In mitigation Accused 5 said her husband is an Alshaabab. This was a point of consideration for she said she ran away because of that. Did the court establish this one? NO. If this allegation is true, then it would give her reason for fear. It is only officers at UNHCR offices or the Department of Refugees Affairs that can deal.
The issue of one of the accused being a child is neither here nor there. The Prisons department is always keen and cannot accept the commitment of a minor. There is no evidence that this alleged minor has been rejected by Prisons for being an under age. Counsel did not also give the name of the said minor.
Due to the prevailing circumstances in the Somalia and the fact that there is nothing on record to show that the Learned Magistrate made inquiries as to exactly why the accused persons came to Kenya, I find that the convictions are unsafe.
Under the provisions of Section 364(1) (a) of the Criminal Procedure Act I revise the order of the lower court by quashing the convictions and setting aside the sentences. The order for repatriation is also set aside.
They shall be set free forthwith and are given 14 days within which to present themselves to the UNHCR offices Nairobi, for their Refugee status determination.
DATED AND SIGNED IN CHAMBERS AT EMBU THIS 4TH DAY OF NOVEMBER 2011.
H. I. ONG’UDI
JUDGE