[2021] KEHC 12695 (KLR)
The court found that the indefinite detention of the accused persons at the Nyeri Police Station, resulting from the inability of the Immigration Department to repatriate them due to Covid-19 border lockdowns, was highly irregular and comparable to a harsh and excessive sentence. The court exercised its supervisory...
Source-derived case information.
- Citation
- [2021] KEHC 12695 (KLR)
- Parties
- Applicant: Republic; Respondent: Wwineza Aline; Respondent: Esther Muha Wenineza
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E005 of 2021
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- repatriation order set aside; accused persons to be released to Rwandan High Commission
- Judges
- A Mshila
- Legal Topics
- Immigration Offences, Unlawful Presence, Repatriation Orders, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Wwineza Aline
Respondent
Esther Muha Wenineza
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the continued detention of the accused persons due to logistical challenges in repatriation is lawful.
- 2 Whether the repatriation order should be set aside and substituted with a more appropriate order.
Ratio Decidendi
The court found that the indefinite detention of the accused persons at the Nyeri Police Station, resulting from the inability of the Immigration Department to repatriate them due to Covid-19 border lockdowns, was highly irregular and comparable to a harsh and excessive sentence. The court exercised its supervisory jurisdiction under Section 364 of the Criminal Procedure Code to set aside the repatriation order and substituted it with an order for the release of the accused persons to the Rwandan High Commission in Nairobi, enabling them to regularize their stay in Kenya.
Court Disposition
repatriation order set aside; accused persons to be released to Rwandan High Commission
Orders
- The repatriation order imposed on 26/02/2021 is set aside.
- The accused persons shall be released to the Rwandan High Commission in Nairobi to enable them to regularize their stay in Kenya.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL DIVISION
CRIMINAL REVISION NO.E005 OF 2021
(Criminal Case No. 255 of 2021 of the Chief Magistrate's Court at Nyeri)
REPUBLIC............................................................APPLICANT
VERSUS
WWINEZA ALINE
ESTHER MUHA WENINEZA..........................RESPONDENTS
RULING ON REVISION
1. Wwineza Aline and Esther MuhaWenineza were both charged with the offence of Being unlawfully in Kenya contrary to Section 53(1)(j)as read with Section 53(2) of the Kenya Citizenship and Immigration Act.
2. A brief outline of the case was that the accused persons were, on the 18/02/2021 in Nyeri Township within Nyeri County, found to be unlawfully present in Kenya in that they did not have any valid travel permits in contravention of the Act. They were arrested and charged with the offence to which they pleaded guilty and were discharged under Section 35(1) of the Criminal Procedure Code. The trial court issued a repatriation order that the accused persons be repatriated to Rwanda through the OCS Nyeri Police Station and the Immigration Department.
3. The Office of the Director of Public Prosecutions filed for Revision of the trial court’s order vide a letter dated 4/03/2021. The grounds cited therein are that the Immigration Department that was to enforce the order is experiencing logistical challenges in the repatriation of the accused persons to Rwanda as the country is in lockdown at the borders due to the Covid-19 Pandemic.
4. The accused persons are therefore currently languishing in custody at the Nyeri Police Station and will continue languishing there indefinitely. This indefinite period of waiting is highly irregular and can be comparable to a sentence that is harsh and excessive; Therefore the order warrants interference by this court.
5. In the light of the material placed before this court and the circumstances of the case, this court is satisfied that this is a suitable case for it to exercise its supervisory powers of revision conferred under the provisions of Section 364 of the Criminal Procedure Code.
6. The repatriation order imposed on the 26/02/2021 is hereby set aside and substituted with an order to release the accused persons to the Rwandan High Commission situate in Nairobi to enable them to regularize their stay in Kenya.
Orders accordingly.
Dated, Signed and Delivered at Nyeri this 4thday of March, 2021.
HON. A. MSHILA
JUDGE