Sadaq Ibrahim Olal, Adan Mohamed Ali, Abdifatan Abdillahi Ali & Abdillahi Abdi Gara v Republic [2018] KEHC 4604 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL REVISION NO. 349 OF 2018

SADAQ IBRAHIM OLAL

ADAN MOHAMED ALI

ABDIFATAN ABDILLAHI ALI

ABDILLAHI ABDI GARA..............APPLICANTS

VERSUS

REPUBLIC......................................RESPONDENT

RULING

Vide a letter filed in this court on 23rd May, 2018,Mr D Wamotsa, counsel for the applicants ( herein referred to S.I.O,A.M.A,A.A.A and  A.AG) has applied  to the Honourable court seeking to have it call for and exercise  the record of proceedings in Shanzu Criminal Case No. 461 of 2018, Republic  Vrs S.I.O and others and satisfy itself as to the correctness, legality, regularity and propriety of the proceedings, orders, convictions and sentences against the 1st, 2nd and 3rd Applicants by Hon L. Lewa ( SRM) on 14th May 2018.

The application is made under section 362 of the Criminal Procedure Code and Article 50 (a) of the Constitution.

The application is based on five grounds which have raised a number of issues.

I have considered this application with reference to the lower court record of proceedings, submissions by counsel and the law.

The application was not contested by the Respondent except for applying that the Applicants who it has been confirmed are victims of trafficking in person, be ordered to record their statements with the police.

I wish to state that the matter that is substantially before the court is for revision of the proceedings, convictions, sentences, and  orders that were passed against the 1st, 2nd  and 3rd applicants by the trial court. And on this, it has been conceded that the same were irregular, illegal, incorrect and unconstitutional.

I am reluctant to make any orders with regard to the applicant’s recording of statements and testifying in respect of 3rd count that is pending before the  trial magistrate, for this could  end up being  prejudicial  to either party. It will also be noted that the court has not even been told by the office of the Director of Public Prosecution, the arrangements they have made to facilitate the said process. And even then, the decision for the Applicants to record their statements and testify in the matter where they are cited as victims of trafficking in person, I believe is for the office of  the Director of Pubic Prosecution and  they can do this  formally  before a proper forum.

I therefore confine my orders to declaring that;

(i) the 1st, 2nd and 3rd Applicants having been cited as victims of trafficking in person in count II, the trial courts proceedings, convictions and respective sentences are irregular, illegal, incorrect and a miscarriage of justice;

(ii) the  convictions against the 1st, 2nd and 3rd applications are hereby quashed and  respective sentences  set aside.

(iii) the 1st and 2nd applicants be repatriated to/Somalis in accordance with the provisions of section 18 of the  Counter –Trafficking in  Person Act, 2010.

(iv) the 3rd Applicant to be sent back to the IFO Refugee Camp in accordance with the provisions of section 18  of the Counter Trafficking in Persons Act, 2010

(v) the Kenya Immigration Department to effect the above mentioned orders.

Orders accordingly.

Ruling delivered, signed and dated this 8th day of June, 2018.

HON. LADY JUSTICE D. O. CHEPKWONY

In the presence of;

M/s Ocholla , counsel for the  state.

Mr Wamotsa, counsel for the applicant

C/clerk- Beja