The court held that the applicant was an Ethiopian but by misleading the Immigration Office under the Commissioner of Refugee Affairs misrepresented herself as a Somali. She thus gave misleading information for purposes of entitling her to a refugee status in Kenya. She must therefore have withheld the same passport for purposes of gaining advantage in acquisition of a refugee status. In that respect, she could not hide under the provisions of section 13 of Refugee Act to warrant the revision of the sentence and the entire trial court proceedings.
The court further held that under s 4(e) of the Refugees Act, 2006, a person would not be a refugee for purposes of the Act if such person had more than one nationality and had not availed himself/herself of the protection of one of the countries of which the person was a national, and had no valid reason, based on well-founded fear of persecution. In respect of the applicant, the evidence that the court could rely on as proof of her nationality was the copy of the passport she showed to the arresting officers which attested that she was an Ethiopian National.
Criminal proceedings, stay of proceedings; possessing two different nationalities; unlawful presence
The applicant was charged with two counts: Being unlawfully present in Kenya contrary and failure to register as a foreign national. The applicant claimed that she was a registered refugee under Ration Card number 782070 issued on 28 April 2015. She also claimed that she inadvertently pleaded guilty and apart from the penalty imposed, was ordered repatriated back to her home country. According to the applicant, the trial court failed to give regard to s 3(2) of the Refugee Act, 2006 which recognized an immigrant’s prima facie refugee status.
The respondent contended that the plea was unequivocal and did not avail the applicant the privilege of a revision; that s 4(e) of the Refugee Act disqualified a person with more than one nationality from being a refugee; and that the applicant had not demonstrated that she suffered or was likely to suffer persecution or discrimination if she were repatriated.
The application was partially successful. The court substituted the fine with a lower fine, and ordered that upon either paying the fine or serving the sentence, the applicant was to be repatriated back to Ethiopia.
The court held that s 18 of Refugee Act, provided for non-return of refugees. That the applicant had not demonstrated that she would not return to Ethiopia. Therefore, the applicant did not qualify to remain in Kenya under the non- refoulement principle. Further, the court took cognizance for the fact that the offences were quite prevalent in Kenya and had to be discouraged at all costs. However, with regard to count II, the learned trial court imposed the maximum fine which was not prudent as the applicant was a first offender. Noting that in any event, the applicant would be repatriated, it was only justiciable to review the sentence downwards.