The applicants were arrested a day after entry into Kenya 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 accordingly but subsequently discharged. In addition, they were ordered to be repatriated to Djibouti, where they were registered as refugees.
The application before the court was to revise the order of repatriation and to have the court declare that their application for asylum in Kenya should be referred to the Refugee Secretariat for consideration. In the first place 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 firstly, whether the order of repatriation was proper, on the basis that the applicants have a genuine fear of persecution\ in Djibouti. The court found that the applicants fall within the definition of ‘refugees’ under the Refugee Act and as such should, upon entry, be afforded a grace period of one month to make their intention to claim asylum known before they can be arrested. This protection is given to them under s 11 of the Refugee Act, therefore since they were arrested and arraigned only one day after their entry into Kenya, the charges against them, as well as the arrest, conviction and sentence was unlawful. The order of repatriation was similarly unlawful.
The court set aside the conviction and sentence, as well as the order of repatriation. In addition, the court ordered that the applicants be granted a period of 30 days from the delivery of its judgment to appear before the Refugee Affairs Secretariat and make their intention to apply for refugee status in Kenya known.
Refugees, repatriation, non-refoulement, revision
The applicants, nationals of Yemen, 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. The applicants pleaded guilty to the charge and were discharged and ordered to be repatriated to Djibouti, where they were registered as refugees.
Based on the evidence before the court, it became clear that the applicants are Yemeni nationals who fled their country and sought asylum in Djibouti, where they were registered as refugees.
However, the applicants then sought to assert that they are asylum seekers in Kenya and as such that their arrest and the order for their repatriation should be revised and declared unlawful. Moreover, they asked the court to make an 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 premature and unlawful.