Machumu & 15 others v Republic [2023] KEHC 23822 (KLR)

Machumu & 15 others v Republic (Criminal Revision E063 & E064 of 2023 (Consolidated)) [2023] KEHC 23822 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23822 (KLR)

Republic of Kenya

In the High Court at Busia

Criminal Revision E063 & E064 of 2023 (Consolidated)

WM Musyoka, J

October 19, 2023

Between

Sophia Machumu

1st Applicant

Neema Murhula

2nd Applicant

Aline Eksanti

3rd Applicant

Jackline Kika

4th Applicant

Alpha Kulimushi

5th Applicant

Ansima Kulumushi

6th Applicant

Tatu Uredi Tatiana

7th Applicant

and

Republic

Respondent

As consolidated with

Criminal Revision E064 of 2023

Between

Aline Eksanti

1st Applicant

Alpha Kulimushi

2nd Applicant

Ansima Kulimushi

3rd Applicant

Neema Murhula

4th Applicant

Sophia Machumu

5th Applicant

Jacqueline Kika

6th Applicant

Israel Mugisho

7th Applicant

Yusufu Bashige

8th Applicant

Ruhamya Carmel

9th Applicant

Oneshore Kafafa

10th Applicant

Victoire Bibentyo

11th Applicant

Benjamin Cizungu

12th Applicant

Dieumerci Mungua Konkwa

13th Applicant

Imani Manius

14th Applicant

Marc Kafafa

15th Applicant

and

Republic

Respondent

(Revision arising from convictions and sentences, in Busia CMCCRC No. E1467 of 2023 by Hon. ES Nyaloti, Chief Magistrate, CM, made on 11th September 2023, and in Malaba PMCCRC No. 77 of 2023 (formerly Busia CMCCRC No. E1495 and 1496 of 2023, by Hon. O Momanyi, Principal Magistrate, PM, made on 19th September 2023)

Ruling

1. There are 2 revision proceedings herein that were initiated separately, one by a formal application by way of a Motion, and the other informally by way of a letter. The 2 proceedings were handled separately, and 2 separate rulings would have been ideal. However, when I settled to prepare the rulings, I noted that some of the applicants were common in both applications, and I opted to write one ruling.

2. The first application, in time, was that initiated by the Motion, dated 28th September 2023, filed herein on 3rd October 2023. The principal prayers are that the court revise and set aside the conviction s and sentences handed out to the applicants in that application, and an order directing that the applicants be handed over to the Department of Refugee Affairs for registration or safe transfer or return to a designated refugee camp or designated urban residence to enable them make an application as asylum seekers. The grounds and facts, as set out on the face of the application and the affidavits in support, sworn by Aline Eksanti and Tatu Uredi Tatiana, are that the applicants were Congolese, from Goma, in the Democratic Republic of Congo, who had fled the war there, and were in Kenya to seek asylum, something that they had disclosed to the police at both the Busia and Malaba border points, but they were arrested, presented in court, convicted, sentenced, with an order for their repatriation. They state that their lives would be in danger, should they be repatriated. They have attached copies of the order of 19th September 2023, signed by Hon. Momanyi, PM, and a warrant of repatriation, signed by the Chief Magistrate, Busia, Kenya.

3. The second case was initiated by way of a letter dated 6th October 2023, lodged herein on 9th October 2023. The letter is addressed to the Judge, and the applicants ask the court to call for the records, in Busia CMCCRC No. E1495 and 1496 of 2023, and to exercise revisionary power to revise, review or set aside the orders of 19th September 2023, and in lieu give such other orders as fit, pursuant to section 18 of the Refugee Act, No. 10 of 2021 and Article 14 of the Universal Declaration of Human Rights.

4. The 2 matters were placed before me on separate dates, and I directed that the applicants serve the papers on the respondent, the Deputy Registrar to call for the trial court records, and that both matters be mentioned on 12th October 2023. At the mention on 12th October 2023, the respondent craved for time, whereupon I adjourned the matter for mention on 17th October 2023. I also granted stay orders, of the enforcement of the repatriation order.

5. At the mention on 17th October 2023, the respondent, through Ms. Chepkonga, indicated that the State did not oppose the revision sought, on grounds that no effort was made, when the applicants were arraigned in court, to ascertain their intentions, and, therefore, section 24(1) of the Refugee Act was not complied with. It was submitted that once the applicants intimated to the court that they were asylum seekers, the trial court ought to have downed its tools, and referred the matter to the refugee agencies, in terms of sections 12 and 14 of the Refugee Act. She cited Bivamunda Erick vs. Republic [2014] eKLR (F. Tuiyott, J) and Fysha Abrha Redae & 2 others vs. Cabinet Secretary Ministry of Interior & Coordination & another [2015] eKLR (Ngenye-Macharia, J).

6. I have reviewed the Refugee Act, No. 10 of 2021, and other decisions, in addition to Bivamunda Erick vs. Republic [2014] eKLR (F. Tuiyott, J) and Fysha Abrha Redae & 2 others vs. Cabinet Secretary Ministry of Interior & Coordination & another[2015] eKLR (Ngenye-Macharia, J), that is to say Unknown vs. Director of Public Prosecutions & another [2017] eKLR (Ngenye-Macharia, J), Majid Ali Abdu & another vs. Republic [2021] eKLR (Njagi, J), Soliana Mehari & 7 others vs. Republic [2021] eKLR (Njuguna, J), Espoir Ndahuruya 7 another vs. Director of Public Prosecution & another [2022] eKLR (J Kamau, J), and Serogo Alex & 3 others vs. Republic [2022] eKLR (Musyoka, J). What emerges is that foreigners, who enter Kenya, whether legally or not, whether with the relevant entry papers or not, have a 30-day window, by virtue of section 24 of the Refugee Act, within which to report to the nearest reception centre or the nearest government administration centre, to express their intention to apply for asylum or refugee status, and to commence the process of registration as refugees or asylum seekers; and, during that window, such persons shall not be treated as illegal aliens or foreigners unlawfully present in Kenya.

7. As the applications herein are not opposed, and in view of what I have stated above, I shall not belabour the point. I, accordingly, find and hold that the proceedings that were conducted in Busia CMCCRC No. E1467 of 2023 by Hon. Nyaloti, CM, on 11th September 2023, and in Malaba PMCCRC No. 77 of 2023 (formerly Busia CMCCRC No. E1495 and 1496 of 2023, by Hon. Momanyi, PM, on 19th September 2023, were tainted by illegality, impropriety, incorrectness and irregularity, and I hereby quash the said convictions of the applicants, set aside the sentences imposed upon them and the repatriation orders, and direct that the applicants be handed over to the Commissioner for Refugee Affairs, or the Department of Refugee Affairs, forthwith, to make their intentions known, and for processing, thereafter, in accordance with sections 12, 14 and 24 of the Refugee Act. Orders accordingly.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 19TH DAY OF OCTOBER 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Masiga, Ms. Nabulindo and Ms. Omboto, instructed by Masiga Wainaina & Associates, DK Nabulindo & Company, Advocates, and Kituo Cha Sheria, respectively, for the applicants.Ms. Chepkonga, instructed by the Director of Public Prosecutions, for the respondent.