Rage v Republic [2022] KEHC 163 (KLR)

Rage v Republic (Criminal Revision 025 of 2022) [2022] KEHC 163 (KLR) (3 March 2022) (Judgment)

Neutral citation: [2022] KEHC 163 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Revision 025 of 2022

JM Mativo, J

March 3, 2022

Between

Iqra Rage

Applicant

and

Republic

Respondent

(From Original Conviction and Sentence in Criminal Case No. E047 of 2022 of the SRM’s Court at Msambweni)

Judgment

1. This matter came before me by way of Revision pursuant to Section 362 of the Criminal Procedure Code which provides 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 subordinate court.

2. The Accused persons who are all foreigners were charged with the offence of being unlawfully present in Kenya contrary to Section 53(1) (J) as read with Section 53(2) of the Kenya Citizenship and Immigration Act, No. 12 of 2011.

3. They all pleaded guilty to the offence and sentenced to pay a fine of Kshs. 200,000/= or 6 months in jail. It was ordered that the 3rd Accused will be repatriated upon serving the sentence.

4. It is the 3rd Accused person who is a minor now at the Shimo La Tewa Women Prison who attracted this court’s attention during its normal prison visit.

5. Prison officers raised the concern that she is a minor barely 10 years old or less, she is a Somali and cannot speak in Swahili or English and is too traumatized. Sadly, she has been put in a prison with adults and her stay there is not only inhuman but a clear breach of her rights.

6. Article 53 of the constitution is clear that children should not be sent to jail and if they are it should be for a short period and they should be held separately.

7. Perhaps I should say that the Bill of Rights applies to all including foreigners and the only right a foreigner does not have is the Right to Vote. It is not clear why the court overlooked this clear constitutional edict. To me this is a serious lapse.

8. Also, there is a lessor restrictive option which is repatriation. So, it was not necessary to deprive the Accused persons their liberty in the circumstances. Our prisons are already over congested and courts should be guided by the constitution, the Sentencing Policy/Guidelines and impose custodial sentences in deserving cases and where a lawful option exists, like repatriation, then it should be preferred instead of imprisonment.

9. Pursuant to Section 364 of the Criminal Procedure Code I hereby substitute the fine/sentence imposed by the learned magistrate with an order that the 3 Accused persons be repatriated immediately to their country of origin i.e. SOMALIA.

SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 3RDDAY MARCH 2022. JOHN M. MATIVOJUDGE