[2008] KEHC 2529 (KLR)
The court found that the urgency and circumstances of the application justified the grant of a temporary stay of the repatriation order to prevent the appeal and application from being rendered nugatory. The court was satisfied that unless the applicant was protected from immediate removal, the right to appeal would...
Source-derived case information.
- Citation
- [2008] KEHC 2529 (KLR)
- Parties
- Appellant: Mohamed Fatah; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 138 of 2008
- Procedural Posture
- Criminal Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Interim stay of repatriation order granted; applicant to be committed to an asylum centre pending hearing.
- Legal Topics
- Immigration Offences, Unlawful Presence, Deportation Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Fatah
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the execution of the repatriation order should be suspended pending the hearing and determination of the appeal.
- 2 Whether the applicant should be committed to an asylum centre pending the determination of the application.
Ratio Decidendi
The court found that the urgency and circumstances of the application justified the grant of a temporary stay of the repatriation order to prevent the appeal and application from being rendered nugatory. The court was satisfied that unless the applicant was protected from immediate removal, the right to appeal would be illusory. Accordingly, the court allowed the prayer for a stay of the repatriation order for 14 days and directed that the applicant be committed to an asylum centre within Coast Province or elsewhere in Kenya pending the hearing and determination of the motion. The matter was fixed for inter partes hearing, and the orders were extended to related appeals.
Court Disposition
Interim stay of repatriation order granted; applicant to be committed to an asylum centre pending hearing.
Orders
- Stay of repatriation order for 14 days granted.
- Applicant to be committed to an asylum centre within Coast Province or elsewhere in Kenya pending hearing and determination of the motion.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 138 of 2008
(Arising from CM CR. Case No. 1377 of 2008 of the Chief Magistrate’s court at Mombasa)
MOHAMED FATAH ……………………………………….APPELLANT
VERSUS
REPUBLIC ……………..……………………………….RESPONDENT
RULING
On the 13th day of May 2008, Mohamed Fatah, Halima Farah, Farhio Omar, Malim Aden, Diegoh Osman, Aisha Mohamed, Nashroh Abdulrahman, Muna Abdia, Hadhan Mohamed Juma, Bakole Ali and Fatuma Ismael, hereinafter referred to as the applicants, appeared before the Chief Magistrate’s court, Mombasa whereupon each pleaded guilty to a charge of being in Kenya unlawfully contrary to section 15(2)(c) of the Immigration Act. They were convicted and were ordered to be repatriated to Somalia. Being dissatisfied with that decision they filed this appeal before this court.
The subject matter of this ruling is the Notice of Motion dated 20th May 2008. In that motion Mohamed Fatah, the applicant herein is seeking for an order to suspend the execution of the order pending appeal. He also prayed for an order to commit the applicant to an asylum centre within the Coast Province pending the hearing and determination of this application.
I have perused the application plus the supporting affidavit sworn by Mrs. Christine Kipsang, learned advocate for the applicant;
I am convinced the Notice of Motion is urgent and that it is necessary for temporary orders of stay to be given to avoid the application and the appeal being rendered nugatory. I allow prayer (b) of the motion by staying the repatriation order for 14 days. I also direct that the applicant be committed to an asylum centre within Coast Province of any anywhere within Kenya pending the hearing and determination of this motion.
The motion is fixed for inter partes hearing on 28. 5.2008. Let the application be served upon the Attorney General’s office with a Hearing Notice.
This orders shall apply to replication in Mombasa H.C. Crim. Appeals No. 139 – 148 of 2008.
Dated and delivered at Mombasa this 22nd day of May 2008.
J. K. SERGON
J U D G E