The appellant argued that the ruling was contrary to the principle of non-refoulment, as he was at risk of being deported back to Somalia where he would be persecuted. The appellant claimed that he came to Kenya as an asylum seeker but was yet to register as such. Consequently, he had now become a person of concern to the UNHCR.
The state, however, alleged that the court can only invoke its revision once it is satisfied that the criminal proceedings before the subordinate court were incorrect, illegal and or irregular. As such, the court could only revise its ruling if any impropriety existed.
The court found no impropriety present in the issuing of the conviction and sentence. The appellant only brought an application of revision. He thus failed to bring his circumstances to the court for consideration. For that reason, the revision was a mere afterthought.
The court noted that the appellant had been to Rwanda before he came to Nairobi. He did not say the circumstances under which he left Rwanda. Rwanda was not a country at war. He could have sought asylum there. The order for removal from Kenya did not mean that he would be repatriated to Somalia, rather he would be repatriated to Rwanda, his last country of origin. Consequently, the doctrine of non-refoulment would not have been breached.
Principle of non-refoulment
The appellant was interrogated by police officers after they flagged down a public transport vehicle. He was arrested and charged with the offences under section 53(1) as read with section 53(2) of the Citizenship and Immigration Act, for lacking travel documents. He pleaded guilty and was issued with fine or one-year imprisonment, in default of the fine. The court also made an additional provision for his removal from Kenya after the completion of his sentence.
Aggrieved by the conviction, he appealed his conviction and sentence with the assistance of the UNHCR. They urged the court to invoke its revision jurisdiction vested in sections 364(1) and 354(1) of the Criminal Procedure Code and quash or set aside the conviction and sentence.
The court set aside the order of repatriation and substituted it with an order that the appellant is handed over to the UNHCR once his fine or period default sentence is served.
Deportation would be a violation of the principle of non-refoulment.