Bisumlak & 20 others v Republic [2024] KEHC 6011 (KLR)

Bisumlak & 20 others v Republic (Miscellaneous Criminal Application E006 of 2024) [2024] KEHC 6011 (KLR) (9 April 2024) (Ruling)

Neutral citation: [2024] KEHC 6011 (KLR)

Republic of Kenya

In the High Court at Marsabit

Miscellaneous Criminal Application E006 of 2024

JN Njagi, J

April 9, 2024

IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE REFUGEES ACT NO.10 OF 2021 AND IN THE MATTER OF CRIMINAL CASE NO. MCCR/E005 OF 2024 AT THE CHIEF MAGISTRATE’S COURT AT MARSABIT IN THE MATTER OF AN APPLICATION BY MECHAWIK BISUMLAK AND SAMRAWIT TEKLOM & A38 OTHERS FOR REVISION OF THE COURT’S JUDGEMENT DATED 31ST JANUARY 2024

Between

Mechawik Bisumlak

1st Applicant

Samrawit Teklom Mazrowit Teklom

2nd Applicant

Essy Abraham Hana Habtom

3rd Applicant

Elas Teklam Major Teklam

4th Applicant

Naom Kuds Finam Solomon

5th Applicant

Aster Hebtegram Hana Gabreyens

6th Applicant

Liya Mengslab Abrehet Tregay

7th Applicant

Mana Saburawit Semereteah Techelclemadin

8th Applicant

Girmay Gibrab Yonas Bitsua Mlalc

9th Applicant

Eseyas Dawit Evan Kibron

10th Applicant

Binian Issias Mardokey Mayer

11th Applicant

Amnet Tekel Yafet Afewera

12th Applicant

Daniel Teweldeldemedin Aton Gedu

13th Applicant

Yordanos Kesete Mussie Gebrebher

14th Applicant

Abel Gebreniwet Siem Hyle

15th Applicant

Desate Khasag Rebel Tekeste

16th Applicant

Mihkyah Mussie Robel Kijdane

17th Applicant

Filimon Wele Yemane Kesete

18th Applicant

Meron Araya Natu Rasi

19th Applicant

Amunuel Okbuzyi Ateweski Asmanaw

20th Applicant

Bereket Wedeghebriel

21st Applicant

and

Republic

Respondent

Ruling

1. The Applicants herein filed an application dated 1st February 2024 seeking for orders that:1. Spent2. That pending the hearing and determination this application, the Honourable Court do issue a stay of the repatriation Orders issued by the learned trial Magistrate Hon. Christine Wekesa SPM in Marsabit Law Court Criminal Case E005/2024 on 31st January 2024. 3.That the Honourable Court do exercise its discretion to revise and revoke the orders made by the learned trial magistrate Hon. Christine Wekesa SPM in Marsabit Law Courts criminal case E005/2024 on 31st January 2024. 4.That the Honourable Court be pleased to release the Applicants to the custody of the Department of Refugee Services for registration as asylum seekers.

2. The matter was brought to this court for purposes of revision of the lower court`s order against repatriation of the Applicants. As can be seen from the above, the applicants were seeking for other orders apart from stopping the repatriation. In prayer No.3 of the Notice of Motion, the applicants were seeking for orders that they be released to the custody of Department of Refugee Services for registration as asylum seekers.

3. When the matter came up for hearing before this court, it was agreed by consent of counsel representing the Applicants and the Prosecution Counsel that the court makes an order for the Applicants to be assessed by the Department of Refugee Services (DRS) on their suitability of being granted asylum in Kenya. The order was granted.

4. The DRS filed a report with this court in which it stated that they had assessed 29 of the applicants and found 2 of them, Zeremariam Desale Kahsay and Tekle Iseyas Dawit, to be onward movers in that they had been granted asylum in Sudan as their first country of asylum before their entry into Kenya. That owing to the current situation in Sudan the two secondary movers will be granted asylum and protection in Kenya.

5. The report, signed by John Burugu, Commissioner for Refugees Affairs, states that the remaining 27 accused persons have not established a claim for asylum pursuant to the Refugees Act No. 10 of 2021. That an order “do issue repatriating them to their country of origin”.

6. In view of the above, it is the view of this court that the orders sought for revision of the lower court`s orders against repatriation have been overtaken by events as the applicants have been assessed by the DRS and some of them were found deserving of asylum and others were not. If those found not deserving of asylum are dissatisfied with the decision of the Commissioner of Refugees, their recourse is to appeal against the decision of the Commissioner in accordance with Section 14(1) of Refugees Act, 2021 which provides that:A person aggrieved by the decision of the Commissioner under this Act may, within thirty days of receiving the decision, appeal in person or through his or her representative or through any other interested party to the Appeals Committee against the decision

7. The application for revision having been overtaken by events, the interim orders against repatriation issued by this court on 2nd February 2024 are set aside. The application dated 1st February 2024 is in the premises dismissed.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 9TH APRIL 2024J. N. NJAGIJUDGEIn the presence of:Miss Wairimu HB for Miss Muraguri for ApplicantsMr. Otieno for RespondentCourt Assistant – Jarso14 days R/A.