The court held that s 11(1) of the Refugees Act, 2006 required any person who had entered Kenya, whether lawfully or otherwise and wished to remain within Kenya as a refugee in terms of the Act, to make his intentions known by appearing in person before the Commissioner immediately upon his entry or, in any case, within thirty days after his entry into Kenya. Section 11(3) of the Refugees Act, 2006 provided that without prejudice to the provision of the Section, no person claiming to be a refugee within the meaning of s 3(1), would merely, by reasons of illegal entry be declared a prohibited immigrant, detained or penalized in any way save that any person, who after entering Kenya, or who was within Kenya failed to comply with s 11(1) committed an offence and would be liable on conviction to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding six months or both.

The applicants’ conviction and sentence was silent on when the applicants’ entered Kenya. In addition, the lower court proceedings were equally silent on the date of the applicants’ entry into Kenya. The applicants did not immediately upon their entry into Kenya or in any case within thirty days after entry into Kenya make their intention known by an Immigration Officer at their entry point to Kenya. The court concluded that, having therefore pleaded guilty to the charge of unlawfully being present in Kenya, the applicants were properly convicted and sentenced.