[2013] KEHC 2536 (KLR)
The court found that the applicant was charged, convicted, and sentenced under the Immigration Act Cap 172, which had been repealed by the Kenya Citizenship and Immigration Act 2011 effective 30th August 2011. As the repealed law was no longer in force at the time of the applicant's conviction and sentence, the...
Source-derived case information.
- Citation
- [2013] KEHC 2536 (KLR)
- Parties
- Applicant: Mohammed Nakutha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 70 of 2013
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- conviction and sentence reversed; applicant acquitted and set at liberty
- Judges
- GO Shikwe
- Legal Topics
- Immigration Offences, Unlawful Presence, Statutory Repeal, Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Nakutha
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant was convicted and sentenced under a law that had been repealed.
- 2 Whether the applicant's lack of understanding of Swahili language affected the fairness of the proceedings.
Ratio Decidendi
The court found that the applicant was charged, convicted, and sentenced under the Immigration Act Cap 172, which had been repealed by the Kenya Citizenship and Immigration Act 2011 effective 30th August 2011. As the repealed law was no longer in force at the time of the applicant's conviction and sentence, the proceedings were fundamentally flawed. The court accordingly reversed the conviction and sentence and ordered the applicant's acquittal and release unless otherwise lawfully held.
Court Disposition
conviction and sentence reversed; applicant acquitted and set at liberty
Orders
- The conviction and sentence against the applicant are reversed.
- The applicant is acquitted.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 70 OF 2013
MOHAMMED NAKUTHA …........................................………..APPLICANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
RULING
The Applicant MOHAMED NAKUTHA by a letter dated the 24th day of June, 2013 sought the review of a Conviction and a Sentence of a fine of Ksh. 100,000/= in default one year imprisonment on each of the three Counts he was charged with.
The Conviction and Sentence was on 31st day of May, 2013.
His grounds are that he did not understand Swahili language and further that he is a registered Somali refugee seeking asylum at Kakuma Refugee Camp.
I did call for the original file and upon perusal noted that the Applicant was charged with the offence of being unlawfully present in Kenya contrary to section 13(2) (c) of the Immigration Act Cap 172 Laws of Kenya.
The Immigration Act was repealed by the Kenya Citizenship and Immigration Act 2011 which came into commencement on 30th August, 2011.
This Act repealed the Kenya Citizenship Act, the Immigration Act and the Aliens restriction Act.
The Applicant was therefore charged Convicted and Sentenced under the wrong law. I accordingly reverse the Conviction and Sentence and acquit the Applicant. He is set at liberty unless otherwise lawfully held.
Ruling dated and delivered in open Court this 28th day of August, 2013.
….................
M. MUYA
JUDGE
28TH AUGUST, 2013
In the presence of:-
Counsel for the State Mr. Tanui
The Applicant