The court stated that following a conviction and sentence based on an accused person’s plea of guilty, the only thing that was available under statute for challenge, either by way of revision or appeal was the sentence meted out. To successfully challenge a sentence, it had to be shown that there were some illegalities and/or factors that the trial court may not have taken into account in meting out the sentence.
As to the charging of the applicants in joint charges and the order for their return to Ethiopia running foul of the non-refoulment principle, the court held that these were all matters that went beyond the strict ambit of revision proceedings. The applicant ought to have moved the court by a substantive petition to which the respondent DPP would have been able to respond fully consistently with the right to fair hearing under art 50 (1) of the Constitution of Kenya.
The court affirmed that provisions of the Refugees Act, 2006, required that when one claimed to be a refugee, it was clearly an offence to fail to present oneself before the Commissioner of Refugees immediately upon his entry into Kenya. It would hence appear that the submission by counsel for the applicant as to the 30-day period during which a foreigner came into the country was required to seek registration as a refugee was mistaken and based on the state of the law before 2014.
International refugee law; refugees; recognition of refugee status; application for refugee status
The applicants, who were Ethiopian nationals, claimed that the learned magistrate and the prosecution misapplied the law in treating the applicants as criminals instead of refugees, who needed and required assistance and protection. In addition, the applicants prayed that the decision of the lower court be revised and that the instant court quashes the proceedings at the lower court, the conviction and the sentence and instead order for the accused persons to be repatriated back to their country or be handed over to the Commissioner for Refugees.
In Criminal Case No. E260 of 2020, at Maua – Meru road in Igembe Central Sub County, Ethiopian citizens were found unlawfully present in Kenya without valid documents from the Immigration Department.
For Criminal Case No. E477 of 2020, at Mutuati area in Igembe North Ethiopian nationals were found being unlawfully present in Kenya without a valid pass or permit.
They pleaded guilty unequivocally. In mitigation, in No. E260 of 2020, the 1st accused said that there was war in their country and he prayed to be escorted back. The 3rd accused asked to be taken back home. Accused number 6 prayed to be escorted back. Accused number 2, 4 and 5 asked to be forgiven. In No. E477 of 2020, in mitigation, all the accused persons only asked to be forgiven.
They were convicted and ordered to pay a fine of Ksh 100,000/= (sentence of six (6) months in default) and be later repatriated.
The entry of undocumented persons into the country could have serious ramifications on the security of the nation. The accused unequivocally pleaded guilty in the trial court; they were not asylum seekers.
Had they adduced evidence to their refugee status, the court would have been more inclined to allow their application for revision.
There were various points where the accused could have submitted their application for refugee status including right at Moyale. If they intended to seek asylum, they would have indicated so right at the point of arrest and asked to be escorted to the Commissioner for Refugees. The application was hence dismissed.
Under the provisions of s 348 of the Criminal Procedure Code, the applicants could not challenge their conviction since they were convicted on their own plea of guilty. The sentenced imposed by the trial court was within the confines of the law.
Any person who had entered Kenya, whether lawfully or otherwise and wished to remain within Kenya as a refugee would make his intentions known by appearing in person before the Commissioner immediately upon his entry into Kenya.