Espoir Ndaruhuya & another v Director of Public Prosecution & Director of Immigrations and Registration of Persons [2022] KEHC 1611 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CRIMINAL REVISION NO E002 OF 2022

ESPOIR NDARUHUYA................................................................................................1ST APPLICANT

FREDY NDAKENESHA..............................................................................................2ND APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION...........................................................1ST RESPONDENT

DIRECTOR OF IMMIGRATIONS AND REGISTRATION OF PERSONS.....2ND RESPONDENT

RULING

1. In their Notice of Motion application dated and filed on 7th January 2022, the Applicants moved the court seeking revision to set aside the conviction and sentence that was meted against them by Hon J. Wambilyanga (SPM) on 30th November 2021 and that they be handed over to the Department of Refugee Affairs for registration and/or safe transfer/ return to a designated refugee camp or designated urban residence. The said application was supported by the Affidavit of their advocate, Joshua Odhiambo Nyamori that was sworn on 7th January 2022.

2. The Applicants’ case was that they fled persecution from their country of origin, Democratic Republic of Congo (DRC), and came to Kenya to seek refuge as asylum seekers. They contended that the 1st Applicant was already registered as a refugee in Kenya while the 2nd Applicant was arrested on the day he arrived in Kenya on 27th November 2021 along Busia- Mombasa Road on his way to the Refugees Affairs Secretariat.

3. They averred that they were arraigned before the aforesaid Learned Magistrate and charged with the offence of being in Kenya illegally contrary to Section 53(1)(j) as read together with Section 53(2) of the Kenya Citizenship and Immigration Act, 2011 to which they pleaded guilty. They were fined Kshs 10,000/= and in default, they were to serve six (6) months imprisonment whereafter they would be deported to Rwanda within thirty (30) days of completion of their sentence. They paid the fine and as at the time of making their present application, they were being held at Kisumu Central Police Station awaiting their deportation.

4. It was their contention that the Trial Court conducted the proceedings in English without first ascertaining if they could understand the language. They stated that they only spoke French and their native Congolese language and they were therefore incapable of following the said proceedings. They asserted that if it was not because of the fact that they did not understand the English language and/or they were not represented by counsel, they would have furnished the court with information that they were seeking asylum.

5. They were apprehensive that being deported without their application being heard was likely to violate the obligation of the Kenyan State to protect the human rights of everyone in its territory as they would be subjected to re-foulement. They thus urged this court to allow their application.

6. In response to the said application, on 23rd February 2022, the Respondents herein filed undated Grounds of Opposition. They pointed out that the Trial Court was not satisfied that the Applicants had justified their presence in Kenya and that they had not provided any documents to prove that they were asylum seekers or indeed that the 1st Applicant was already registered as a Refugee in Kenya. They further pointed out that the Applicants failed to present themselves to the Commissioner of Refugees immediately upon entry in Kenya as stipulated in the Refugee Act, 2006. They therefore averred that the present application had not been made in good faith and was thus not merited.

7. The Applicants’ Written Submissions were dated and filed on 24th February 2022. The Respondents did not file any Written Submissions.

8. This Ruling is based on the said Grounds of Opposition and Written Submissions which all the parties relied upon in their entirety.

LEGAL ANALYSIS

9. The Applicants submitted that they had approached this court for a revision for the reason that Trial Court did not consider Sections 11, 13 and 18 of the Refugee Act 2006 (now repealed) which mirror Sections 15, 24 and 29 of the Refugees Act that came into law on 23rd November 2021 thus rendering the proceedings an illegality. They added that the Refugee Act, 2021 (hereinafter referred to as the “Refugee Act”) was very clear that Kenya was required to abide by the international laws on refugees.

10. They pointed out that the Trial Court did not indicate the language they preferred and understood as it was clear that they were from DRC where French was the official language although languages like Kikongo amongst others were recognised.

11. They were emphatic that both the Constitution of Kenya, 2010 and the Criminal Procedure Code Cap 75 (Laws of Kenya) provide that the official languages in Kenya and used in criminal trials are English and Kiswahili. They further asserted that where an accused person did not understand both languages, he was entitled to an interpreter as provided in Section 198 of the Criminal Procedure Code and Article 50 (2)(m)(3) of the Constitution of Kenya and as was reiterated in the cases of Wilson Kipchirchir Koskei vs Republic [2019] eKLR, Elijah Njihia Wakianda vs Republic [2016] eKLR amongst other cases they relied upon.

12. They further submitted that had the Trial Court enquired their language, it would have been revealed that they were asylum seekers who ought not to have been punished. It was their submission that mere illegal or unlawful entry into Kenya did not in itself expose a person who did so enter as an illegal immigrant to be handled as an illegal alien or foreigner. They argued that illegal entry meant that such entry would mean entry without requisite travel documents.

13. They referred this court to the case of Serogo Alex & 3 Others vs Republic [2022] eKLR where the court therein quashed the proceedings of the Trial Court for having been tainted with illegality.

14. Whilst this court noted the Applicants’ submissions regarding the Refugee Act, 2006 (hereinafter referred to as “the Repealed Refugee Act.”), it did not dwell so much on the analysis of the same for the reason that the said Act had since been repealed and replaced with the Refugees Act that came into effect on 23rd November 2021. This was the applicable Act in the circumstances of the case herein as the Applicants were charged for being unlawfully in Kenya on 30th November 2021.

15. Section 15 of the Refugee Act stipulates that:-

“Despite the provisions of the Kenya, Citizenship and Immigration Act, 2011, no proceedings shall be instituted against any person or member of his or her family in respect of his or her unlawful entry or presence within Kenya if such person-

a. has made a bona fide application for recognition as a refugee, until a decision has been made on the application and, where appropriate, such person had had an opportunity to exhaust his or her right of appeal; or

b. has become a refugee.”

16. Section 2 of the Refugee Act states that a refugee includes an asylum seeker, which the 2nd Applicant was contending he was. Notably, the 1st Applicant had submitted that he was already a refugee living in Kenya. However, the court perused the lower court proceedings and their present application but did not see any documentation that was attached thereto showing that the 1st Applicant already had refugee status in Kenya. In the absence of any temporary pass and/or asylum seekers’ pass envisaged under Section 23(1) of the Refugee Act or other relevant documentation, the court could only consider if they had satisfied the criteria of being considered as asylum seekers as stipulated in Section 2 of the refugee Act.

17. The process of applying for refugee status is set out in Section 12 (1) - (9) of the Refugee Act. In a nutshell, it provides that an application for the grant of refugee status shall be made to the Commissioner either directly or through an authorised officer and that the Commissioner shall invite the applicant to appear before him or her to provide oral or documentary evidence in support of the claim for asylum. The asylum seeker may present the application in person or be represented by counsel at his or other third party’s cost but not at the cost of the Department of Refugee Services that has been established under Section 6(a) of the Refugee Act.

18. The Commissioner may delegate the function of interviewing the applicant and upon finalising the interviews, he or she shall forward the interview file to the Status Eligibility Panel that has been established under Section 13(1) of the Refugee Act for further review. It is the Eligibility Panel that forwards the recommendations to grant or not grant the status. The decision of the Commissioner to grant or not to grant the application shall be communicated to the applicant in writing within ninety (90) days from the date when the application was made and where it is refused, the Commissioner shall give reasons for such refusal.

19. An applicant who is aggrieved by the decision of the Commissioner shall appeal to the Refugee Status Appeals Committee that has been established under Section 11(1) of the Refugee Act within thirty (30) days of the decision of the Commissioner and further to the High Court within thirty (30) days if he or she is aggrieved by the decision of the said Appeals Committee.

20. Where the High Court upholds the decision of the Commissioner, Section 14(3) of the Refugee Act states that the Commissioner shall within sixty (60) days of the ruling of the High Court notify the Director of Immigration of the decision, who shall thereafter deal with the applicant in accordance with the written law on immigration.

21. If the applicant does not appeal the decision of the Commissioner or the decision of the Appeal Committee, Section 14(4) of the Refugee Act provides that the Commissioner shall notify the Director of Immigration, within sixty (60) days of his or her determination or the ruling of the Appeals Committee who shall then deal with the applicant in accordance with written law on immigration.

22. Notably, Section 24(1) of the Refugee Act states that any person entering Kenya to seek asylum shall make his intention known immediately upon entry or within thirty (30) days by reporting to the nearest reception centre or the nearest government administrative office.

23. Section 25 (1) of the Refugee Act gives a duty to the Commissioner to designate reception officers at entry points and where there are no designate reception officers, the immigration officers or other government officers stationed at the entry points shall act as reception officers.

24. As was evident from the facts of the case herein, the Applicants herein were dealt with in accordance with Kenya Citizenship and Immigration Act, 2011, which is the immigration law in Kenya.

25. So as to establish if the criminal proceedings that were instituted against them were proper and lawful, this court called for the lower court record in line with Section 362 of the Criminal Procedure Code that stipulates that:-

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

26. A perusal of the proceedings of the lower court showed that the Applicants herein were arrested at Kisian Junction within Kisumu County. They were arraigned in court on 1st December 2021 where they were charged with being present in Kenya contrary to Section 53(1)(j) as read with 53 (2) of the Kenya Citizenship and Immigration Act.

27. Under Section 53(1)(j) of the Kenya Citizenship and Immigration Act, “Any person whounlawfully enters or is unlawfully present in Kenya in contravention of this Act.”

28. Further, Section 53(2) of the said Kenya Citizenship and Immigration Act,

“Any person convicted of an offence under this section shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years or to both;”

29. The Applicants herein pleaded guilty to the charge. However, when the facts were read to them, they pointed out that the date was not correct. The Trial Court therefore entered a Plea of Not Guilty against them and set the hearing date for 14th December 2021. The Trial Court did not sit on the said Hearing date as a result of which the matter was fixed for further mention on 8th February 2022. However, on 22nd December 2022, they informed the court that they wished to change their plea.

30. The charge was read to them afresh and they pleaded guilty to the same and also admitted the facts that were read out to them. They were fined Kshs 10,000/= or in default, to serve six (6) months imprisonment. An order for their repatriation to their country of origin within thirty (30) days upon satisfaction of the sentence was also made.

31. Whereas the court considered their submissions that they did not understand the language of the court and that they only spoke French or Congolese, this court found the same not to have been true. The language of the court was clearly shown to have been Kiswahili.

32. They pleaded guilty to the charge on 1st December 2021 but did not admit the facts that were read to them as they contended that the date of the occurrence was wrong and further changed their plea to “Guilty” on 22nd December 2021. If they did not understand the repercussions of their plea of “not guilty”, they would not have changed their plea. In fact, before being sentenced, in their mitigation, they pleaded for leniency from the court and indicated that they wanted to go home.

33. It was clear from the said proceedings that the Applicants clearly understood the language of the proceedings as they were able to communicate to the Trial Court in a language that it understood. Their plea was unequivocal leaving no doubt in the mind of the Trial Court and that of this court of how they intended to plead to the charge. In addition, at no given time did they inform the court that they were asylum seekers.

34. It was evident that the proceedings were conducted in a fair manner as far as reading of the charges, pleading to the charges, reading of the facts, admitting of the facts, mitigation and sentencing were concerned. This court did not see anything that demonstrated any impropriety or illegality of the proceedings and consequently, the Trial Court could not have been faulted in proceeding in the manner that it did.

35. Whereas Section 364(1)(5) of the Criminal Procedure Rules Cap 75 (Laws of Kenya) stipulates that “when an appeal lies from a finding, sentence or order, and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who would have appealed,”this court was not persuaded that there was merit in the application for revision as far as the Applicants’ trial was concerned.

36. Having said so, this court noted that even if the Applicants had entered Kenya illegally, they still had thirty (30) days that was stipulated in Section 24(1) of the Refugee Act to apply for the refugee status as provided in Section 12(1) -(9) of the Refugees Act.

37. In light of the Refugee Act, this court therefore found the case of Abush Tamaske & 15 Others vs Republic [2021] eKLR that the Respondents relied upon not to have been a useful point of reference for the reason that the same was based on the repealed Refugee Act which had not spelt out a period within which an asylum seeker was to report to the Commissioner, only stating that it was to be immediately after entry in Kenya.

38. Indeed, Section 11(1) of the repealed Refugee Act had provided that:-

“Any person who has entered Kenya, whether lawfully or otherwise and wishes to remain within Kenya as a refugee in terms of this Act shall make his intentions known by appearing in person before the Commissioner immediately upon his entry into Kenya (emphasis court).”

39. As has been seen in Section 14(3) and Section 14(4) of the Refugee Act, dealing with asylum seekers in accordance with written law on immigration is a last resort and after exhausting all the quasi-judicial and judicial avenues envisaged in Section 12(1) -(9) of the Refugee Act. The Applicants were arrested after the Refugee Act came into force and hence they were entitled to be processed in the elaborate manner that had been set out in Section 12(1)- (9) of the Refugee Act.

40. The preamble of the Refugee Act is clear that the said Act is “to provide for the recognition, protection and management of refugees; to give effect to the 1951 United Nations Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees and the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in African and Connected purposes.”

41. Section 44(4) of the Refugee Act further states that:-

“The principles and standards applicable to the delegated power referred to under this Act are those found in –

c. the general rules of international law as specified under Article 2(5) of the Constitution and;

d. any treaty and convention ratified by Kenya under Article 2(6) of the Constitution”

42. There exists a diversity of definition of refugees across the globe, where countries and local districts even have differing legal meanings and rights allocated to refugees.

43. The above notwithstanding, the 1951 United Nations Convention Relating to the Status of Refugees restricted refugee status to those whose circumstances had come about "as a result of events occurring before 1 January 1951", as well as giving states party to the Convention the option of interpreting this as "events occurring in Europe" or "events occurring in Europe or elsewhere".

44.  Article 31 of the 1951 Convention relating to the Status of Refugees deals with non-penalization, detention and protection of refugees. It provides that a refugee has the right not to be expelled from a country. It further recognises threats to life or freedom as possible reasons for illegal entry or presence. It further refrains from linking such threat to the refugee's country of origin and further recognises that refugees may have “good cause” for illegal entry other than persecution in their country of origin.

45. The said Article 31 of the said 1951 Convention relating to the Status of Refugees provides that:-

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees’ restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

46. Going further, the Protocol Relating to the Status of Refugees is a key treaty in international refugee law. The 1967 Protocol removed both the temporal and geographic restrictions. It entered into force on 4 October 1967 and one hundred and forty six (146) countries are parties. Kenya is one of the contracting parties to the Protocol.

47. In addition, Article 2 of the 1969 OAU Convention Governing Specific Aspects of Refugee Problems in African and connected purposes. It stipulates that:-

1. Member States of the OAU shall use their best endeavours consistent with their respective legislations to receive refugees and to secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality. 2. The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State. 3. No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory

48.  The provisions of Section 44(4) of the Refugee Act have been given effect by Article 2(5) of the Constitution of Kenya which states that:-

“The general rules of international law shall form part of the law of Kenya.”

49. Further, Article 2(6) of the Constitution of Kenya provides that:-

“Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”

50. Notably, Section 364(1)(b) of the Criminal Procedure Code states that:-

“In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may in the case of any other order other than an order of acquittal, alter or reverse the order.”

51. Bearing in mind that the Refugee Act came into force on 23rd November 2021 and the Applicants had not exhausted all their rights as asylum seekers before they could be processed as illegal aliens, this court considered their application as if it were an appeal. In this regard, it fully associated itself with Ojwang J (as he then was) when he stated in the case of Charles Gitau vs Republic [2008] eKLR that “the court can in its discretion, act suo moto even where the matter had been brought to its notice by an aggrieved party who had a right of appeal…”

52. Accordingly, having given the Applicants the benefit of doubt that they may have been asylum seekers and that refugees may have “good cause” for illegal entry other than persecution in their country of origin as provided in Article 31 of 1951 Convention relating to the Status of Refugees and that there is a very elaborate process of processing of asylum seekers as provided in the Refugee Act, this court came to the firm conclusion that despite the ever present threat of unwanted elements who might carry out terrorist activities and unfriendly acts against Kenya, the deportation of the Applicants pursuant to the Kenya Citizenship and Immigration Act was premature as they had not exhausted their application and appeal mechanisms stipulated under the Refugee Act.

53. In the event their claims will be found to be unsuccessful after exhausting all their legal rights before the Commissioner, the Appeals Committee and High Court, they will be processed under the immigration law and deported to their country of origin.

DISPOSITION

54. For the foregoing reasons, the upshot of this court’s decision was that the Applicants’ Notice of Motion application dated and filed on 7th January 2022 was merited and the same be and is hereby allowed in terms of Prayer Nos (6) and (7) therein.

55. The effect of this is that the conviction and sentence that was imposed upon the Applicants be and is hereby set aside and/or vacated and any fine that may have paid be refunded forthwith.

56. For the avoidance of doubt, the Applicants shall be handed over to the Department of Refugee Affairs forthwith to enable them make an application for refugee status for their processing as asylum seekers in accordance with Section 12, Section 14 and in particular so as to comply with Section 24(1) and any other relevant provision of the Refugee Act, 2021.

57. It is so ordered.

DATED and DELIVERED at KISUMU this 10th day of March 2022

J. KAMAU

JUDGE