The prisoners had indicated that they were of Somali origin. That they fled that country because of the rampant insecurity caused by indiscriminate attacks by the Al Shabaab. Since 1991, Somalia had had no stable government and the lack of such government led to serious disturbance of public order and it was a well-founded fear that returning to Somalia could put the prisoners' life at risk.
The court concluded that from the information supplied to the court from the UNHCR and from the Ministry of Internal Security and National Co-ordination, having also considered the Interview Reports and the RSD Assessment Forms produced, the prisoners were prima facie refugees under s 3 (2) of the Refugees Act, 2006.
International refugee law; status of refugees; determination of refugee status; Al Shabaab
The Prisoners Abdi Kaarshe Mohammed, Osman Hajj Mohammed, Basra Haji Mohmoud, Halima Mohamed Nur and Adiel Bashir Aden who were of Somali origin were charged and convicted by the Acting Chief Magistrates Court of two offences under the Kenya Citizenship and Immigration Act No.12 of 2011 on 7/10/2013. The offences facing them were, being unlawfully present in Kenya contrary to s 53 (1) and knowingly having in possession of scanned Kenyan national Identity Card which no proper account was given. All pleaded guilty to the charges.
They were convicted, sentenced and required to be repatriated to their country of origin upon serving their sentences.
The prisoners seemed to have been asylum- seekers at the time of arrest, prosecution and conviction. Their convictions and sentences were reviewed and set aside. The prisoners were ordered to be released into the custody of the officers of UNHCR in the presence of Kenya officials dealing with refugee affairs, for their reception and registration as refugees.
A person would be a prima facie refugee for the purposes of the Refugee Act if such a person owing to external aggression, occupation, foreign domination or events seriously disturbing public order in any part or whole of his Country of origin or nationality was compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.