[2022] KEHC 163 (KLR)
The court found that the imprisonment of the minor applicant, a foreign national, for the offence of being unlawfully present in Kenya was a violation of her constitutional rights as a child under Article 53 of the Constitution. The court emphasized that children should not be imprisoned except in exceptional...
Source-derived case information.
- Citation
- [2022] KEHC 163 (KLR)
- Parties
- Applicant: Iqra Rage; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 025 of 2022
- Procedural Posture
- Criminal Revision / Judgment
- Outcome
- sentence revised; custodial sentence set aside; repatriation ordered
- Judges
- JM Mativo
- Legal Topics
- Immigration Offences, Unlawful Presence, Child Rights in Criminal Process, Sentencing Guidelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iqra Rage
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment
Legal Issues
- 1 Whether the imprisonment of a minor foreign national for unlawful presence in Kenya was lawful and constitutional.
- 2 Whether repatriation was a more appropriate and less restrictive alternative to imprisonment for the accused persons, particularly the minor.
Ratio Decidendi
The court found that the imprisonment of the minor applicant, a foreign national, for the offence of being unlawfully present in Kenya was a violation of her constitutional rights as a child under Article 53 of the Constitution. The court emphasized that children should not be imprisoned except in exceptional circumstances, and if so, must be held separately from adults. The court also noted that the Bill of Rights applies to all persons, including foreigners, and that repatriation is a less restrictive and lawful alternative to imprisonment for immigration offences. The sentencing magistrate's failure to consider these constitutional and statutory protections constituted a serious lapse....
Court Disposition
sentence revised; custodial sentence set aside; repatriation ordered
Orders
- The fine and custodial sentence imposed by the magistrate are substituted with an order for immediate repatriation of the three accused persons to Somalia.
Full Case Text
Judgment text and source record
25 paragraphs
Rage v Republic (Criminal Revision 025 of 2022) [2022] KEHC 163 (KLR) (3 March 2022) (Judgment)
Neutral citation: [2022] KEHC 163 (KLR)
Republic of Kenya
In the High Court at Mombasa
Criminal Revision 025 of 2022
JM Mativo, J
March 3, 2022
Between
Iqra Rage
Applicant
and
Republic
Respondent
(From Original Conviction and Sentence in Criminal Case No. E047 of 2022 of the SRM’s Court at Msambweni)
Judgment
1. This matter came before me by way of Revision pursuant to Section 362 of the Criminal Procedure Code which provides that the High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any subordinate court.
2. The Accused persons who are all foreigners were charged with the offence of being unlawfully present in Kenya contrary to Section 53(1) (J) as read with Section 53(2) of the Kenya Citizenship and Immigration Act, No. 12 of 2011.
3. They all pleaded guilty to the offence and sentenced to pay a fine of Kshs. 200,000/= or 6 months in jail. It was ordered that the 3rd Accused will be repatriated upon serving the sentence.
4. It is the 3rd Accused person who is a minor now at the Shimo La Tewa Women Prison who attracted this court’s attention during its normal prison visit.
5. Prison officers raised the concern that she is a minor barely 10 years old or less, she is a Somali and cannot speak in Swahili or English and is too traumatized. Sadly, she has been put in a prison with adults and her stay there is not only inhuman but a clear breach of her rights.
6. Article 53 of the constitution is clear that children should not be sent to jail and if they are it should be for a short period and they should be held separately.
7. Perhaps I should say that the Bill of Rights applies to all including foreigners and the only right a foreigner does not have is the Right to Vote. It is not clear why the court overlooked this clear constitutional edict. To me this is a serious lapse.
8. Also, there is a lessor restrictive option which is repatriation. So, it was not necessary to deprive the Accused persons their liberty in the circumstances. Our prisons are already over congested and courts should be guided by the constitution, the Sentencing Policy/Guidelines and impose custodial sentences in deserving cases and where a lawful option exists, like repatriation, then it should be preferred instead of imprisonment.
9. Pursuant to Section 364 of the Criminal Procedure Code I hereby substitute the fine/sentence imposed by the learned magistrate with an order that the 3 Accused persons be repatriated immediately to their country of origin i.e. SOMALIA.
SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 3RDDAY MARCH 2022. JOHN M. MATIVOJUDGE