Section 13 of the Refugees Act (the Act) states that no proceedings may be instituted against a person who has made a legitimate application for refugee status until a decision is made. However, on inspection of the court found that the applicant was not an asylum seeker or a refugee as per section 3 of the Act. The court noted that it is not sufficient to merely mention that one has come to seek refuge. The court found that the applicant failed to mention that he made a bona fide application, nor his date of entry. Consequently, the court could not determine whether he was within the aforesaid 30-day window period required in section 11 of the Act.
The applicant (a Burundian) was convicted and ordered to be repatriated for unlawful presence in Kenya. This application was made for revision and an order setting aside the conviction and the order of repatriation on the grounds of the volatile state of Burundi. The applicant argued that he was an asylum seeker and thus exempted from facing charges. Further, that he should be released to the UNHCR for processing of refugee status. The state argued that the matter should be remitted back to the Subordinate Court for retrial.
The matter was referred back to the trial court to determine whether the applicant was a refugee or had made a bona fide application for refugee status.
The trial court did not inquire into the status of the applicant: whether he was a refugee or had made a bona fide application for refugee status.