The applicants were arrested and charged with the offence of entering Kenya without a valid pass or permit, in contravention of the Kenya Citizenship and Immigration Act. The applicants pleaded guilty to the charge and were convicted and detained for 2 and a half months. Additionally, they were ordered to be repatriated back to their home country of Ethiopia.
The application before the court was to revise the charges, conviction, detention and repatriation and to have the court declare that the application for asylum in Kenya should be referred to the Refugee Secretariat for consideration.
On the first prayer, the court pointed out that it may only revise the orders of criminal proceedings for their correctness, legality or the propriety of their findings.
The court had to consider, first, whether the arrest, plea, conviction and detention, was correct, legal and proper. Here the court rejected the respondent’s argument that these were proper because the applicants pleaded guilty and found, instead, that by stating their intention to seek asylum in Kenya, their entry into the country is justified by law. Accordingly, the plea should have been changed to one of ‘not guilty’. The conviction and detention was therefore equally unlawful.
Second, the court had to consider whether the repatriation order would be in violation of the principle of non-refoulement as guaranteed in s 18 of the Refugee Act and international law. The court found that the Act affords the protection of non-refoulement not only to refugees but also to asylum-seekers. Moreover, such persons cannot be repatriated when such an action would put their lives in danger, any order to that effect would be in breach of customary international law.
The court set aside the conviction and sentence, as well as the order of repatriation. The court ordered a retrial by a different court, so that the applicants can justify their defence of having entered Kenya as asylum-seekers
Refugees, repatriation, non-refoulement, revision
The applicants, nationals of Ethiopia, were arrested and convicted for the offence of entering Kenya without a valid pass or permit, in contravention of the Kenya Citizenship and Immigration Act No. 12 of 2011. They pleaded guilty to the charge and were discharged and ordered to be repatriated to Ethiopia but stated in mitigation that they intend to seek asylum in Kenya.
Based on the evidence before the court, it became clear that the applicants indeed are Ethiopian nationals, who fled their country, in order to seek asylum in Kenya. However, they were arrested and detained for 2 and a half months for entering Kenya without a valid pass or permit. The applicants, however, sought to revise the order of the lower court for failing to consider that they informed the court of their intention to seek asylum. Moreover, because they are asylum seekers, the order of repatriation would be contrary to the Refugee Act and International law, to the extent that it would violate the principle of non-refoulement. As such, they pleaded that the High Court should find that their arrest and the order for their repatriation were unlawful. Moreover, they asked the court to order that they appear before the Refugee Affairs Secretariat for consideration to be registered as refugees in Kenya.
The application was allowed
The arrest, charges against and conviction of the applicants, was in contravention of the protections afforded to asylum seekers under the Refugee Act and thus unlawful.