[2018] KEHC 6913 (KLR)
The court found that the appellant was a Kenyan citizen, as confirmed by the matching fingerprints on his Kenyan identity card and the concession by the State. The plea of guilty was not unequivocal since the prosecution failed to properly outline the facts, and the appellant did not understand the charge....
Source-derived case information.
- Citation
- [2018] KEHC 6913 (KLR)
- Parties
- Appellant: Mohamed Dinle Abdille; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 71 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant released
- Judges
- GMA Dulu
- Legal Topics
- Immigration Offences, Unlawful Presence, Plea of Guilty, Identity Verification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Dinle Abdille
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was lawfully present in Kenya at the material time.
- 2 Whether the appellant understood the charge and the plea process was properly conducted.
- 3 Whether the conviction and sentence were valid in light of the appellant's Kenyan citizenship.
Ratio Decidendi
The court found that the appellant was a Kenyan citizen, as confirmed by the matching fingerprints on his Kenyan identity card and the concession by the State. The plea of guilty was not unequivocal since the prosecution failed to properly outline the facts, and the appellant did not understand the charge. Consequently, the conviction and sentence were unsafe and could not stand. The appeal was allowed, the conviction quashed, and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant released
Orders
- The appeal is allowed.
- The conviction is quashed and the sentence set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL APPEAL NO. 71 OF 2017
MOHAMED DINLE ABDILLE…..APPELLANT/ACCUSED
VERSUS
REPUBLIC…………………………….......…..RESPONDENT
(From the conviction and sentence in Mandera Senior Resident Magistrate’s Court Criminal Case No. 172 of 2016 by P. N. Areri (SRM)
JUDGEMENT
1. The appellant was charged in the Magistrate’s Court at Mandera with being unlawfully present in Kenya contrary to section 53 (1) (j) and (2) of the Kenya Citizenship and Immigration Act of 2011. The particulars of the offence were that on 12th July 2016 at Mandera township in Mandera County in the Republic of Kenya being a Somali national was found unlawfully present in Kenya without a valid permit authorizing him to stay in Kenya.
2. He pleaded guilty to the charge and the prosecutor stated that facts were as per the charge sheet.
3. He was convicted and sentenced to a fine of Kshs.200,000 and in default to serve four (4) years imprisonment and in completion of the sentence to be repatriated to Somalia.
4. He filed his appeal in this court claiming that he was tortured and confused and could not understand the alleged offence. He said that he was a Kenyan by birth and a holder of Kenyan national identity card No. 35765846.
5. Before the appeal was heard, this court made and order on request of the State, that the National Registration Bureau and CID confirm the identity of the appellant, on whether he was a Kenyan.
6. A request was then sent to the Registrar of Persons Garissa by Michael Njeru (ASP) Sub-County Criminal Investigating Officer, to confirm if Mohamed Ismael Gedi was the registered owner of the identity card No. 35765846 and whether his fingerprints matched those in the identity card.
7. This report from the Registrar of Persons was not received.
8. On the hearing for the appeal, the Principal Prosecuting Counsel Mr. Okemwa stated that he had read the fingerprints of the appellant with the CID Officer and confirms that the fingerprints were for the same person, and informed the court that the name Abdille was a nickname. Counsel therefore submitted that it is clear that the appellant did not understand the charge as the prosecution took a shortcut by saying that the facts were as per charge sheet, which must have confused the appellant.
9. Since the State does not oppose the appeal, and the Prosecuting Counsel has confirmed to this court that the appellant had a Kenyan identity card and that the CID had confirmed that the fingerprints in the identity card are those of the appellant, I have no reason not to allow the appeal.
10. I thus allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be released from custody unless otherwise lawfully held.
Dated, Signed and Delivered at Garissa this 4th May, 2018.
……………………………………….
GEORGE DULU
JUDGE