The court took account of section 7 of the Refugee Act, which establishes a Commissioner for Refugees, whose primary functions include receiving and processing applications for refugee status. The court added that the court may not usurp those powers and confer refugee status on an appellants without the input, by way of processing the application, by the Commissioner for Refugees. 

The court also invoked section 358(1) of the Criminal Procedure Code which gives this court the power to take further evidence and ordered for a report from the Commissioner of Refugees on the appellants admissibility as refugees.

Issuing court
Date of judgment

Deportation, in effect resulting in repatriation

Case citations
Criminal Appeal 227 of 2012
[2012] eKLR

The appellants were charged with the offence of being unlawfully present in Kenya, in contravention of the Kenya immigration laws. The appellants pleaded guilty to the offence and were convicted, fined and issued with a deportation order to their country of origin by a magistrate court. The magistrate court further ordered that the appellants be handed over to the Department of Refugees Affairs and admittance as refugees to refugee camps.

The appellants brought a notice of motion application seeking orders for setting aside and/or reversing the judgment of the magistrate court. The appellants contended that they were not a danger to the society and not subjected to refugee status determination before the decision to deport them.

Decision/ Judgment

The deportation order was stayed pending the Report from the Commissioner of Refugees on the appellants admissibility as refugees.

Basis of the decision

The Refugee Act requires persons seeking refugee stats to have their applications heard and considered before they are deported. That the appellants did not have their applications considered was inconsistent with the Refugee Act and relevant international law.

Reported by
Supported by the UNHCR