[2014] KEHC 129 (KLR)
The court found that the alternative charge of failing to register as a Kenyan under Section 14(1)(a) of the Registration of Persons Act is not a lawful alternative to the principal charge of being illegally in Kenya under the Citizenship and Immigration Act. The two offences are distinct in law and fact, and a plea...
Source-derived case information.
- Citation
- [2014] KEHC 129 (KLR)
- Parties
- Applicant: Nasteha Mohamed Ali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Revision Case 10 of 2014
- Procedural Posture
- Criminal Revision / Revision Order
- Outcome
- conviction quashed; matter remitted for fresh plea
- Judges
- RPV Wendoh
- Legal Topics
- Immigration Offences, Plea Procedure, Alternative Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nasteha Mohamed Ali
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Revision Order
Legal Issues
- 1 Whether the alternative charge of failing to register under the Registration of Persons Act can lawfully be an alternative to the charge of being illegally in Kenya under the Citizenship and Immigration Act.
- 2 Whether the conviction based on the plea to the alternative charge was proper.
Ratio Decidendi
The court found that the alternative charge of failing to register as a Kenyan under Section 14(1)(a) of the Registration of Persons Act is not a lawful alternative to the principal charge of being illegally in Kenya under the Citizenship and Immigration Act. The two offences are distinct in law and fact, and a plea to the alternative charge cannot sustain a conviction for the principal offence. The conviction entered on the applicant's plea to the alternative charge was therefore improper and must be quashed. The matter is remitted to the trial court for a fresh plea to be taken before a different magistrate, ensuring compliance with proper charging and plea-taking procedures.
Court Disposition
conviction quashed; matter remitted for fresh plea
Orders
- The conviction is quashed.
- The file is sent back to Nyahururu Court for plea to be taken afresh before a different magistrate other than A. Mukenga, Resident Magistrate.
Full Case Text
Judgment text and source record
14 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
REVISION NO. 10 OF 2014
NASTEHA MOHAMED ALI……………………...…APPLICANT
VERSUS
REPUBLIC……………………………………….....RESPONDENT
REVISION ORDER
This file has been placed before me for purposes of revision pursuant to this court’s supervisory powers under Article 165(6) of the Constitutionand Section 364 of the Criminal Procedure Code.
Nasteha Mohamed Ali was charged with the offence of being illegally in Kenya contrary to Section 53(1)(j) as read with Section 53(2) of the Citizenship and Immigration Act No. 12 of 2011. The particulars of the charge are that on 7/5/2014 at Rumuruti, within Laikipia County, was found being in Kenya illegally or without any documents to allow her to be in Kenya. In the alternative, she was charged with the offence of failing to register contrary to Section 14(1)(a) of the Registration of Persons Act Cap 107, Laws of Kenya.
She denied the first charge but pleaded guilty to the alternative charge of failing to register as a Kenyan and a plea of guilty was entered. However, before sentence, the magistrate noticed that Section 14(1)(a) of the Registration of Persons Act cannot be an alterative to a charge of one being illegally in Kenya under the Citizenship & Immigration Act and that is when the magistrate forwarded the file to this court.
I do agree with the trial court’s observation that the alternative charge to which the accused pleaded guilty cannot be an alternative to a charge of being illegally present in Kenya. For that reason, I quash the conviction. I hereby send the file back to Nyahururu Court for the plea to be taken afresh before a different magistrate other than A. Mukenga, Resident Magistrate. It is so ordered.
DATED and DELIVERED this 23rd day of May, 2014.
R.P.V. WENDOH
JUDGE