'Introduction
1. The Petition dated 15th January 2024 is supported by the Petitioner’s affidavit in support sworn on even date and a further affidavit dated 16th September 2024.
2. The main grievance in this Petition is about the treatment that the Petitioner claims he has been subjected to by the Respondents as a refugee/ asylum seeker in Kenya which he contends violates the rights of an asylum seeker and infringes on constitutional rights and rights under international refugee law.
3. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
DECLARATIONS
a) A declaration that the Respondents have jointly and severally violated and contravened Articles 21, 27 and 43 of the Constitution.
b) A declaration that the Respondents have jointly and severally violated and contravened Articles 3, 18 and 28 of the Refugees Convention, 1951.
c) A declaration that the Respondents have jointly and severally violated and contravened Articles 7, 9 and 17 of the International Convention on Civil and Political Rights.
d) A declaration that the Respondents have jointly and severally violated and contravened Articles 7 and 23 of the Universal Declaration of Human Rights.
e) A declaration that the Respondents have jointly and severally violated and contravened Section 8 (m) of the Refugees Act, Cap 173.
f) A declaration that the Respondents have jointly and severally violated and contravened Articles 4 of the Organisation of African Unity Convention.
g) A declaration that the Petitioner''s right to own property is curtailed by the refusal to issue him with identification documents being mandate and alien identification card.
h) A declaration be issued to the effect that the failure to issue the identification documents was a violation of Article 27 of the 1951 Convention relating to the status of refugees, Article 27, 28 and 29 of the Constitution.
i) Damages be awarded to the Petitioner with regards to the violation of the refusal to issue identification documents as prayed in prayer (h) above.
j) A declaration that the Petitioner was entitled to identification documents as matter of right.
k) A declaration be issued that the Petitioner''s detention for 11 days was a violation of his rights under Article 29 of the Constitution.
l) Upon the declaration in (k) above damages be awarded to the Petitioner.
m) A declaration be issued to the effect that the insistence on the Respondents to forcefully move the Petitioner back to Kakuma before his security issue was addressed is a violation of Article 3 and 26 of the 1951 Convention relating to the status of refugees, Article 9 of the Convention of the Civil and Political Rights Article 39(1) of the Constitution.
n) Damages be awarded to the Petitioner with regard to prayer (m) above.
o) A declaration be granted that the delay in issuing the Petitioner with identification documents was an inordinate delay.
p) A declaration be granted that the delay in communicating the Petitioner''s refugee status was in violation of Article 28 and 47 of the Constitution.
q) Damages be granted with regards to prayers (0) and (p) above.
r) A declaration be issued to the effect that the Respondents delay in processing the Petitioner as a Refugee is a direct co-relation with the Petitioner''s quality of life.
s) Damages be granted with regards to the Respondent''s delay in processing the Petitioner as envisioned in prayer (r) above.
t) A declaration that the Respondents behaviour towards the Petitioner amounts to torture and cruel treatment in violation to Article 7 of the International Convention on Civil and Political Rights.
u) Damages to be awarded to the Petitioner with regard to prayer (t) above.
v) A declaration to be issued to the effect that the failure to issue the Petitioner with identification documents was a violation of his rights to seek employment or self - employ as envisioned under Article 23 of the Universal Declaration of Human Rights, Article 17 and 18 of the 1951 Convention relating to the status of Refugees.
w) Damages be awarded to the Petitioner with regard to prayer (v) above.
x) A declaration that the Petitioner''s right as provided under Article 37 of 1951 Convention relating to status of refugees have been violated with regard to the failure to issue relevant documents to assist the Petitioner commence the process.
y) Damages to be awarded with regard to prayer (x) above.
z) A declaration to be issued to the 2nd and 4th Respondents that they owe a duty to the Petitioner with regard to resettlement or assimilation.
aa) A declaration be issued that the 2nd and 4th Respondents have failed in their duty with regards to (z) above with regards to the Petitioner.
bb) The Court do direct the 2nd and 4th Respondents to report back to Court within a period of ninety (90) days after the granting of this order and report to the court on the steps taken to redress the violations in this petition especially but limited to prayer (aa) and issuance of identification to the Petitioner.
ORDERS
a) An order granting the Petitioner actual custody of his children.
b) An order compelling the 1st and 2nd Respondents to release the Petitioner''s refugee documents to him.
c) An order compelling the Respondents to grant the Petitioner safety and security within the Kenyan territory.
d) An order compelling the Respondents to conduct the eligibility test to enable the Petitioner get a mandate and an alien identity card securing consistent means of income to provide for himself and his children.
e) An order quashing the terrorism charges pressed against him by the 1st Respondent.
f) Any other or further remedy that this Court shall deem fit to grant.
g) An order that the Respondents do compensate the Petitioner for the loss of his tools of trade.
h) An order for general damages.
i) Interest on any amounts awarded.
j) An order that the Respondents do bear the costs of this Petition.
Petitioner’s Case
4. The Petitioner is an immigrant from Congo and came to Kenya on 26th February 2021. He asserts that upon his arrival, the 4th Respondent never issued him with an asylum seeker pass as required by law.
5. He depones that back in May and October 2021, he was attacked by persons in Kakuma Refugee Camp who wanted to take away his children. He avers that he reported the matter to the 1st and 2nd Respondent’s representatives in the camp and the police, who then arrested the culprits. He however claims that the investigation and prosecution of these persons was mishandled and as such they returned back to the camp.
6. He alleges that upon the return, the perpetrator proceeded to attack him in his home and broke his arm. He informs that his neighbours rescued and saved him and his children. Fearing for the welfare of his children, he avers that he relocated to Nairobi in November 2021 with the assistance of the Child Protection officer at Kakuma Camp. It is there that he started his business.
7. He depones that on 7th January 2023, the Chief of Kangemi and Officer in Charge of Station (OCS) of Spring Valley Police Station arrested him while engaging in his business. He states that before arresting him, they took away his tools of trade. In addition, they took his children and placed them in a children’s home as no one else could look after them.
8. He states that he was detained for 11 days and never presented in Court during this period. He claims that he was instructed to pay Ksh.300,000 so that he can be issued with his tools of trade. Since he had no money, he requested he be issued with an inventory of the items that were seized. He claims that this request was not granted.
9. The Petitioner states that upon his release on 7th March 2023, he sought assistance from the 1st Respondent through its officer Madam Grace so as to recover his goods. In addition, he hoped to be given Ksh.45,000 so that he could pay his rent since he had been evicted from his house. He asserts that instead of assisting him, the 1st Respondent threatened to take him back to Kakuma Camp.
10. He avers that when he sought to get his children back, the Children Officer informed him that this was not possible as there were allegations against him that he had defiled the children. His attempt to further get assistance from the 3rd Respondent is said to have also been futile.
11. The Petitioner informs that since he had nowhere else to go, he went back to the 1st Respondent on 8th March 2023 with his belongings. He was however locked out of the premises which caused him to pitch a tent outside Haki House. He avers that his persistent stay there, caused Madam Grace to intervene. She informed him that she would assist him get a license and secure funding from one of the organizations on the condition that he would cease following up on the seized goods and leave the office premises. He declined this proposal.
12. The Petitioner depones that when the 1st Respondent attempted to relocate him and his family in April 2023, he fled. When he returned the following day to take his belongings, he learnt that the same had been taken by the 1st and 3rd Respondents’ officers. In addition, he claims that he was beaten by Cobra Security guards and thereafter taken to Kilimani Police Station.
13. He depones that he was detained and charged with the offence of raiding the 1st Respondent’s offices, breaking the windows of the vehicles parked there in the parking bay, interrupting the operations of the 1st Respondent and presenting himself naked. These charges are said to have been lodged by Madam Grace.
14. The Petitioner was arraigned in Kibera Law Courts the following day. He denied the charges and was later on remanded at Industrial Area for 3 weeks. At the next Court mention, he admitted that he had committed the offences and narrated his account which led him to the 1st Respondent. He avers that following this, the Hon. Magistrate directed the 1st Respondent to assist the Petitioner and also released him.
15. The Petitioner depones that on the following day, he went back to the 1st Respondent but his request to meet the representatives was declined. He alleges that he was attacked on 20th August 2023 by policemen instructed by the 1st Respondent without any justification.
16. On the following day, as he headed to the 1st Respondent’s office, he asserts that he saw his belongings being carried away by the 1st and 2nd Respondent’s personnel. He depones that when he went to report the matter at Kilimani Police Station, he was instead informed that the 1st Respondent had lodged terrorism charges against him thus advised him not to press any charges. He claims that these false charges are being used to tarnish his character and status as a refugee.
17. The Petitioner informs that since the 1st and 2nd Respondent took away his refugee documents, he cannot relocate to another country. He is apprehensive that the Respondents will continue to torture him in the manner they have. In fact, he avers that the 1st Respondent has even had him followed by its personnel.
18. He further notes that the asylum seeker pass issued on 15th August 2024 relied upon by the 4th Respondent is false as well as the manifest claimed to have been issued to him on 23rd March 2021. He claims that he was never issued with these documents and moreover the asylum pass does not bear the 4th Respondent’s signature. In fact, the Petitioner questions why the 4th Respondent is in possession of these documents which should have been issued to him 4 years ago terming the action overall as malicious.
1st Respondent’s Case
19. The 1st Respondent filed Grounds of Opposition dated 26th September 2024 on the basis that:
i. The 1st Respondent is not a state organ and therefore it does not owe any obligations towards the Petitioner under Article 21 of the Constitution. This Article places the obligation on the state and state organs to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
ii. The 1st Respondent did not discriminate against the Petitioner. The 1st Respondent’s failure to issue assistance requested by the Petitioner was justifiable because the assistance sought was not within the mandate of the 1st Respondent a fact that was duly explained to the Petitioner.
iii. The 1st Respondent is a Non-Governmental Organization established and registered in Kenya with the following objectives:
a. Representing refugees and asylum seekers who are arrested in police stations, prisons and courts of law and on issues related to their asylum in Kenya.
b. Providing legal support, advice and accompanying refugee complainants to the courts of law especially survivors of sexual violence, gender-based violence and on issues of child welfare.
c. Representing refugees in child protection matters including child custody and child maintenance.
d. Counselling of refugees with trauma problems and who are being assisted with services.
e. Training refugees on self-representation skills.
f. Sensitizing refugees on refugee law including the duty to comply with the laws of Kenya among other areas of law as identified through needs assessment.
iv. The 1st Respondent’s failure to offer economic support and repatriation did not amount to discrimination as alleged by the Petitioner but rather an adherence to the objectives of the 1st Respondent. Furthermore, the Petitioner was referred to other agencies that could offer the assistance he sought, a process followed by all other refugees and asylum seekers who find themselves in similar circumstances.
v. Under Article 21(2) of the Constitution as read to together with Article 43, the obligation to provide decent housing is firmly placed on the state and not private agencies such as the 1st Respondent. The 1st Respondent therefore did not violate the Petitioner’s right to decent housing.
vi. Under Article 18 and 28 of the 1951 Convention Relating to the Status of Refugees, it is the role of the contracting states to issue travel documents, work permits and other necessary documents to refugees to facilitate their capacity to engage in self-employment, and not private agencies such as the 1st Respondent.
vii. Under Part III of the Criminal Procedure Code, the arrest of suspects and the subsequent decision to charge or release them is the responsibility of the National Police Service in conjunction with the Director of Public prosecutions. Therefore, any grievances and alleged violations relating to his arrest, detention and arraignment in court should not be directed at the 1st Respondent.
viii. The 1st Respondent played no role in the closure of the business of the Petitioner and only learnt of this after the Petitioner reported on said closure to its officer in Nairobi.
ix. Under Section 8(m) of the Refugees Act 2021, provision of security to refugees and asylum seekers is a function of the Commissioner for Refugee Affairs and not the 1st Respondent.
x. The Petition is otherwise incompetent, baseless and an abuse of the process of this Court as the Petitioner’s rights have not been violated in any manner as alleged or at all and the same ought to be dismissed with costs.
20. In addition, the 1st Respondent through its Executive Director, Barlet Colly Jaji filed its Replying Affidavit sworn on 26th September 2024.
21. To begin with, he avers that the Petitioner did not report the alleged attack that occurred in May and October 2021.He nonetheless notes that the 1st Respondent is not vested with the mandate to prosecute criminal matters. He states that the 1st Respondent’s assistance revolves around representing and supporting refugees and asylum seekers.
22. He depones that the Petitioner came to the 1st Respondent on 21st February 2023 and was attended to by Fresha Nabwire. He informed them that his children had been taken to alternative care. This was after his liquor business was raided and liquor worth Ksh.79,000 confiscated by the police.
23. He states that the Petitioner in addition sought assistance to pay his rent and to be repatriated to his Congo with his children. With regard to the second request, the Petitioner was referred to the 2nd and 3rd Respondents as they are the only agencies whose mandate extends to repatriation.
24. He claims that the Petitioner is cognizant of the 1st Respondent’s mandate and also that it lacks capacity to provide him with house rent as sought. He stresses that doing so would be acting outside its scope.
25. He depones that the 1st Respondent in a bid to assist the Petitioner visited the area chief and Kangemi Police Station. He states that Ms.Fresha was informed that the Petitioner was running an illegal wines and spirits shop in Kangemi without a license. Furthermore, she was informed that the Petitioner had been arrested severally and released with a warning over the issue.
26. He depones that Ms. Fresha advised the Petitioner that the 1st Respondent would assist him secure a work permit for his business. He states that the Petitioner declined this offer and persisted that he only wants to be repatriated.
27. With regard to the Petitioner’s children, it is alleged that as per the OCS, the Petitioner had abandoned his children at the police station following his release, arguing that the police had taken his source of income and so was unable to take care of them a fact that was unknown to the 1st Respondent. He informs that the police treated the children as abandoned and handed them over to the children’s department who then took them to Nairobi Children Rescue Center on 21st January 2023.Later on, on 14th August 2023, they were transferred to Tumshangilie Children’s home.
28. It is noted that when Ms.Fresha visited the children, she was informed that no court process had been initiated in their case. They in addition required Ms. Fresha to provide a physical location of the Petitioner so as to assess suitability in line with the principle of a child’s best interest.
29. He states that the Petitioner returned to the 1st Respondent’s offices in May 2023 and camped outside their office thereafter. He notes that Ms. Grace’s attempt to assist him get a license was vehemently declined by the Petitioner. In addition, the Petitioner is said to have stripped naked causing a lot of commotion. At this juncture, he notes that they had to engage the services of security agents, Cobra Security team who forcibly dressed the Petitioner and took him to Kilimani Police Station.
30. He depones that following this incident, the City Council decided to remove all the campers outside their premises. The 2nd Respondent relocated them to Kakuma camp. He adds that the campers including the Petitioner had camp documents however had not requested for a change of address from the 4th Respondent.
31. In view of this, he informs that the Petitioner was not forcibly removed outside their offices and his belongings taken as alleged. Likewise, he states that when the Petitioner was arrested he was only charged with public indecency and not terrorism as alleged. Equally, the 1st Respondent did not take his refugee documentation as claimed.
32. He argues that the Petitioner in bringing this Petition has come with unclean hands as depones false and misleading information. On this basis, he states that the Petition does not have any merit.
2nd, 3rd and 6th Respondents’ Case
33. The 2nd, 3rd and 6th Respondents responses and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
4th Respondent’s Case
34. The 4th Respondent, John Burugu filed his Replying Affidavit sworn on 14th August 2024. He informs that he is the head of the Department of the Refugee Services established under the Refugees Act.
35. He depones that contrary to the Petitioner’s allegation that his Department has refused to issue him identification documents, he affirms that the Petitioner was issued with an asylum seeker’s pass which serves as proof of a bona fide application for recognition as a refugee and proof of registration which allows his children to enroll in school.
36. He notes that although this is a termporary document, it legalizes the Petitioner’s presence in Kenya. The same is issued pending the processing and consideration of issuance of a refugee identification. He avers that issuance of this document is dependent on approval of the refugee status application on a discretionary basis. Considering this, he stresses that the same cannot be presumed or demanded as the Petitioner is seeking to do. He however notes that the discretionary power to issue it is based on national and international legal standards which safeguards the integrity of the asylum process.
37. He points out that the Petitioner conceded that he left Kakuma Refugee Camp without obtaining proper authorization forms and in addition failed to notify him. He informs that this is contrary to the law and contravenes Section 31 of the Refugee Act which requires refugees and asylum seekers to stay in the designated areas. He informs that these designated areas are equipped to provide security, food, shelter, education and medical assistance. As such, he argues that the Petitioner’s decision to relocate to Nairobi in addition to being unlawful was unwarranted and premature.
38. He makes known that resettlement and assimilation as sought is not a matter of right but a solution offered to these groups on a discretionary basis. He informs that this process is overseen by the United Nations High Commissioner for Refugees (UNHCR).
39. It is deponed that in the circumstances of this case, he is not able to continue the process of determining the Petitioner’s refugee status until he is acquitted of the terrorism charges as deponed by the Petitioner. He avers that he is obligated to balance protection of asylum seekers and refugees with the imperative of first safeguarding national security under Section 27 of the Refugee Act.
40. In light of this and as guided by the law, he concludes that the Petitioner obligated to prove the allegations cited in his Petition.
5th Respondent’s Submissions
41. CI Albert Chebii and OCS for Kilimani Police Station on behalf of the 5th Respondent filed a Replying Affidavit sworn on 16th September 2024.
42. He depones that on 8th May 2023 at 9:00am, they received a complaint from the 1st Respondent’s officer, Grace Maina. She reported that the Petitioner was outside their gate with placards stating ‘Haki Iko Wapi’ and began shouting as he demanded to be let it. The report added that the Petitioner had become violent and even stripped naked causing a disturbance contrary to Section 95(1) of the Penal Code. The 1st Respondent’s team is said to have dressed him and then brought him to the station. The complaint was recorded under OB Entry Number 17/08/05/2023.
43. He depones that in addition to Grace Maina’s statement, they recorded a statement from the security guard, Kennedy Ondieki Maranga. He informs that the arrest was done by PC Tabitha N. Nkaitole. The matter was reported to the Office of the Director of Public Prosecutions on 9th May 2023 and Petitioner arraigned before Kibera Law Courts.
44. He makes known that the allegation that the 1st Respondent lodged a terrorism claim against the Petitioner is false. He states that their Occurrence Book records indicates that no such complaint has ever been lodged. He further affirms that the whole process was conducted in accordance with the law. For this reason, he argues that the Petition does not disclose any legal and justifiable claim against the 5th Respondent.
Petitioner’s Submissions
45. On 16th January 2024, Mutungi Kithinji and Company Advocates filed submissions on behalf of the Petitioner and highlighted the issues for discussion as: whether the 1st and 3rd Respondents failed to exercise their mandate by refusing to assist the Petitioner; whether the 2nd and 4th Respondent failed to exercise their mandate by refusing to issue the Petitioner the required documents and whether the 5th and 6th Respondent failed to exercise their mandate to offer the Petitioner protection.
46. Counsel in the first issue submitted that the 1st Respondent’s mandate is to promote and protect the rights of refugees and asylum seekers. Reiterating the averments in the Petitioner’s affidavit, Counsel submitted that when the Petitioner sought assistance and legal representation from the 1st Respondent to recover his children, goods and to be issued with house rent, he was threatened that he would be returned to Kakuma Refugee Camp if he kept asking for help.
47. Counsel further submitted that the Petitioner was charged at Kilimani Police Station following the 1st Respondent complaint against him and no evidence was adduced to support it. Counsel recapping the unfortunate events that befell the Petitioner submitted that the 1st Respondent had acted contrary to its mandate in relation to the Petitioner and his children’s case.
48. Counsel stated that the Court in Kituo Cha Sheria and others vs Attorney General (2013) eKLR, affirmed that refugees fall within the category of vulnerable persons as lack means, support systems of family and friends and also by the fact of being in a foreign land where hostility is never very far. Counsel stated that UNHCR in its Guidelines on protection and care of refugee children directs that children need special attention. Equally the Constitution under Article 53 affirms that a child’s best interest is of paramount importance in every matter concerning the child. Counsel submitted that similar protections are accorded in the Children Act and the Convention on Rights of the Child.
49. In Counsel’s view, the 1st and 3rd Respondents failed to assist the Petitioner get back his children despite the 1st Respondent being the reason the minor children were taken away from him. Furthermore, that the 1st Respondent denied the Petitioner access to his children. All these acts are said not to have been in the children’s best interest. As such, Counsel submitted that the Petitioner’s rights had been grossly violated by the 1st and 3rd Respondent.
50. The 2nd and 4th Respondents’ are argued to have also violated the Petitioner’s rights as they failed to issue him with the relevant documents. Counsel submitted that when the Petitioner and his children were received on 26th February 2021, they were not issued with any asylum seeker pass as required by law. Counsel stated that the asylum seeker pass adduced by the 4th Respondent shows that it was issued on 15th August 2024, yet the date of entry indicates that the Petitioner entered the country on 26th February 2021, a clear indication of mischief by the 4th Respondent.
51. Counsel further stated that the 4th Respondent in its Replying Affidavit had admitted that they had suspended the Petitioner’s refugee status process owing to allegations of terrorism charges. Counsel pointed out that the 4th Respondent did not produce any evidence to prove the terrorism charges. Counsel reasoned that if at all the Petitioner had been charged with terrorism he would not have been released from Kibera Law Courts.
52. Counsel relied in Isca Adhiambo Okayo v Kenya Women''s Finance Trust KSM(2016)eKLR where it was held that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
53. Counsel contended that as a result of this claim the 2nd and 4th Respondents had willingly refused to process the Petitioner''s refugee status and grant him the required documentation.
54. On the final issue, Counsel submitted that the 5th Respondent’s action of continually arresting and beating the Petitioner for no particular reason violated his rights as an arrested person under Article 49(1)(f) )(i) of the Constitution. The 6th Respondent is accused of failing in his capacity as the overseer of various legal sector institutions to call out the 5th Respondent on the illegal arrests and detention of the Petitioner and also not offering him any assistance.
1st Respondent Submissions
55. The 1st Respondent’s Counsel, Sandra Wabosha filed submissions dated 26th September 2024 and underscored the issues for examination: whether the 1st Respondent has violated the Petitioner’s rights under Article 21, 27 and 43 of the Constitution, whether the 1st Respondent has violated the Petitioner’s rights under Article 3, 18 and 28 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, whether the 1st Respondent has violated the Petitioner’s rights under Article 7, 9 and 17 of the International Covenant on Civil and Political Rights, whether the 1st Respondent has violated the Petitioner’s rights under Article 7 and 23 of the Universal Declaration of Human Rights, whether the 1st Respondent has violated Section 8(m) of the Refugee Act and whether the 1st Respondent has violated Article 4 of the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.
56. Counsel in the first issue, submitted that the 1st Respondent was unable to respond to the Petition appropriately due to the unspecific, generic, vague and omnibus nature of the Petitioner’s allegations. Counsel argued as such that the 1st Respondent was unable to ascertain precisely the nature of allegations against it. Counsel relied in Anarita Karimi Njeru Vs. Republic (1970) eKLR, where it was held as follows:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
57. Counsel further stressed that the Petitioner had not explained
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1. The Petition dated 15th January 2024 is supported by the Petitioner’s affidavit in support sworn on even date and a further affidavit dated 16th September 2024.
2. The main grievance in this Petition is about the treatment that the Petitioner claims he has been subjected to by the Respondents as a refugee/ asylum seeker in Kenya which he contends violates the rights of an asylum seeker and infringes on constitutional rights and rights under international refugee law.
3. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
DECLARATIONS
a) A declaration that the Respondents have jointly and severally violated and contravened Articles 21, 27 and 43 of the Constitution.
b) A declaration that the Respondents have jointly and severally violated and contravened Articles 3, 18 and 28 of the Refugees Convention, 1951.
c) A declaration that the Respondents have jointly and severally violated and contravened Articles 7, 9 and 17 of the International Convention on Civil and Political Rights.
d) A declaration that the Respondents have jointly and severally violated and contravened Articles 7 and 23 of the Universal Declaration of Human Rights.
e) A declaration that the Respondents have jointly and severally violated and contravened Section 8 (m) of the Refugees Act, Cap 173.
f) A declaration that the Respondents have jointly and severally violated and contravened Articles 4 of the Organisation of African Unity Convention.
g) A declaration that the Petitioner''s right to own property is curtailed by the refusal to issue him with identification documents being mandate and alien identification card.
h) A declaration be issued to the effect that the failure to issue the identification documents was a violation of Article 27 of the 1951 Convention relating to the status of refugees, Article 27, 28 and 29 of the Constitution.
i) Damages be awarded to the Petitioner with regards to the violation of the refusal to issue identification documents as prayed in prayer (h) above.
j) A declaration that the Petitioner was entitled to identification documents as matter of right.
k) A declaration be issued that the Petitioner''s detention for 11 days was a violation of his rights under Article 29 of the Constitution.
l) Upon the declaration in (k) above damages be awarded to the Petitioner.
m) A declaration be issued to the effect that the insistence on the Respondents to forcefully move the Petitioner back to Kakuma before his security issue was addressed is a violation of Article 3 and 26 of the 1951 Convention relating to the status of refugees, Article 9 of the Convention of the Civil and Political Rights Article 39(1) of the Constitution.
n) Damages be awarded to the Petitioner with regard to prayer (m) above.
o) A declaration be granted that the delay in issuing the Petitioner with identification documents was an inordinate delay.
p) A declaration be granted that the delay in communicating the Petitioner''s refugee status was in violation of Article 28 and 47 of the Constitution.
q) Damages be granted with regards to prayers (0) and (p) above.
r) A declaration be issued to the effect that the Respondents delay in processing the Petitioner as a Refugee is a direct co-relation with the Petitioner''s quality of life.
s) Damages be granted with regards to the Respondent''s delay in processing the Petitioner as envisioned in prayer (r) above.
t) A declaration that the Respondents behaviour towards the Petitioner amounts to torture and cruel treatment in violation to Article 7 of the International Convention on Civil and Political Rights.
u) Damages to be awarded to the Petitioner with regard to prayer (t) above.
v) A declaration to be issued to the effect that the failure to issue the Petitioner with identification documents was a violation of his rights to seek employment or self - employ as envisioned under Article 23 of the Universal Declaration of Human Rights, Article 17 and 18 of the 1951 Convention relating to the status of Refugees.
w) Damages be awarded to the Petitioner with regard to prayer (v) above.
x) A declaration that the Petitioner''s right as provided under Article 37 of 1951 Convention relating to status of refugees have been violated with regard to the failure to issue relevant documents to assist the Petitioner commence the process.
y) Damages to be awarded with regard to prayer (x) above.
z) A declaration to be issued to the 2nd and 4th Respondents that they owe a duty to the Petitioner with regard to resettlement or assimilation.
aa) A declaration be issued that the 2nd and 4th Respondents have failed in their duty with regards to (z) above with regards to the Petitioner.
bb) The Court do direct the 2nd and 4th Respondents to report back to Court within a period of ninety (90) days after the granting of this order and report to the court on the steps taken to redress the violations in this petition especially but limited to prayer (aa) and issuance of identification to the Petitioner.
ORDERS
a) An order granting the Petitioner actual custody of his children.
b) An order compelling the 1st and 2nd Respondents to release the Petitioner''s refugee documents to him.
c) An order compelling the Respondents to grant the Petitioner safety and security within the Kenyan territory.
d) An order compelling the Respondents to conduct the eligibility test to enable the Petitioner get a mandate and an alien identity card securing consistent means of income to provide for himself and his children.
e) An order quashing the terrorism charges pressed against him by the 1st Respondent.
f) Any other or further remedy that this Court shall deem fit to grant.
g) An order that the Respondents do compensate the Petitioner for the loss of his tools of trade.
h) An order for general damages.
i) Interest on any amounts awarded.
j) An order that the Respondents do bear the costs of this Petition.
Petitioner’s Case
4. The Petitioner is an immigrant from Congo and came to Kenya on 26th February 2021. He asserts that upon his arrival, the 4th Respondent never issued him with an asylum seeker pass as required by law.
5. He depones that back in May and October 2021, he was attacked by persons in Kakuma Refugee Camp who wanted to take away his children. He avers that he reported the matter to the 1st and 2nd Respondent’s representatives in the camp and the police, who then arrested the culprits. He however claims that the investigation and prosecution of these persons was mishandled and as such they returned back to the camp.
6. He alleges that upon the return, the perpetrator proceeded to attack him in his home and broke his arm. He informs that his neighbours rescued and saved him and his children. Fearing for the welfare of his children, he avers that he relocated to Nairobi in November 2021 with the assistance of the Child Protection officer at Kakuma Camp. It is there that he started his business.
7. He depones that on 7th January 2023, the Chief of Kangemi and Officer in Charge of Station (OCS) of Spring Valley Police Station arrested him while engaging in his business. He states that before arresting him, they took away his tools of trade. In addition, they took his children and placed them in a children’s home as no one else could look after them.
8. He states that he was detained for 11 days and never presented in Court during this period. He claims that he was instructed to pay Ksh.300,000 so that he can be issued with his tools of trade. Since he had no money, he requested he be issued with an inventory of the items that were seized. He claims that this request was not granted.
9. The Petitioner states that upon his release on 7th March 2023, he sought assistance from the 1st Respondent through its officer Madam Grace so as to recover his goods. In addition, he hoped to be given Ksh.45,000 so that he could pay his rent since he had been evicted from his house. He asserts that instead of assisting him, the 1st Respondent threatened to take him back to Kakuma Camp.
10. He avers that when he sought to get his children back, the Children Officer informed him that this was not possible as there were allegations against him that he had defiled the children. His attempt to further get assistance from the 3rd Respondent is said to have also been futile.
11. The Petitioner informs that since he had nowhere else to go, he went back to the 1st Respondent on 8th March 2023 with his belongings. He was however locked out of the premises which caused him to pitch a tent outside Haki House. He avers that his persistent stay there, caused Madam Grace to intervene. She informed him that she would assist him get a license and secure funding from one of the organizations on the condition that he would cease following up on the seized goods and leave the office premises. He declined this proposal.
12. The Petitioner depones that when the 1st Respondent attempted to relocate him and his family in April 2023, he fled. When he returned the following day to take his belongings, he learnt that the same had been taken by the 1st and 3rd Respondents’ officers. In addition, he claims that he was beaten by Cobra Security guards and thereafter taken to Kilimani Police Station.
13. He depones that he was detained and charged with the offence of raiding the 1st Respondent’s offices, breaking the windows of the vehicles parked there in the parking bay, interrupting the operations of the 1st Respondent and presenting himself naked. These charges are said to have been lodged by Madam Grace.
14. The Petitioner was arraigned in Kibera Law Courts the following day. He denied the charges and was later on remanded at Industrial Area for 3 weeks. At the next Court mention, he admitted that he had committed the offences and narrated his account which led him to the 1st Respondent. He avers that following this, the Hon. Magistrate directed the 1st Respondent to assist the Petitioner and also released him.
15. The Petitioner depones that on the following day, he went back to the 1st Respondent but his request to meet the representatives was declined. He alleges that he was attacked on 20th August 2023 by policemen instructed by the 1st Respondent without any justification.
16. On the following day, as he headed to the 1st Respondent’s office, he asserts that he saw his belongings being carried away by the 1st and 2nd Respondent’s personnel. He depones that when he went to report the matter at Kilimani Police Station, he was instead informed that the 1st Respondent had lodged terrorism charges against him thus advised him not to press any charges. He claims that these false charges are being used to tarnish his character and status as a refugee.
17. The Petitioner informs that since the 1st and 2nd Respondent took away his refugee documents, he cannot relocate to another country. He is apprehensive that the Respondents will continue to torture him in the manner they have. In fact, he avers that the 1st Respondent has even had him followed by its personnel.
18. He further notes that the asylum seeker pass issued on 15th August 2024 relied upon by the 4th Respondent is false as well as the manifest claimed to have been issued to him on 23rd March 2021. He claims that he was never issued with these documents and moreover the asylum pass does not bear the 4th Respondent’s signature. In fact, the Petitioner questions why the 4th Respondent is in possession of these documents which should have been issued to him 4 years ago terming the action overall as malicious.
1st Respondent’s Case
19. The 1st Respondent filed Grounds of Opposition dated 26th September 2024 on the basis that:
i. The 1st Respondent is not a state organ and therefore it does not owe any obligations towards the Petitioner under Article 21 of the Constitution. This Article places the obligation on the state and state organs to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
ii. The 1st Respondent did not discriminate against the Petitioner. The 1st Respondent’s failure to issue assistance requested by the Petitioner was justifiable because the assistance sought was not within the mandate of the 1st Respondent a fact that was duly explained to the Petitioner.
iii. The 1st Respondent is a Non-Governmental Organization established and registered in Kenya with the following objectives:
a. Representing refugees and asylum seekers who are arrested in police stations, prisons and courts of law and on issues related to their asylum in Kenya.
b. Providing legal support, advice and accompanying refugee complainants to the courts of law especially survivors of sexual violence, gender-based violence and on issues of child welfare.
c. Representing refugees in child protection matters including child custody and child maintenance.
d. Counselling of refugees with trauma problems and who are being assisted with services.
e. Training refugees on self-representation skills.
f. Sensitizing refugees on refugee law including the duty to comply with the laws of Kenya among other areas of law as identified through needs assessment.
iv. The 1st Respondent’s failure to offer economic support and repatriation did not amount to discrimination as alleged by the Petitioner but rather an adherence to the objectives of the 1st Respondent. Furthermore, the Petitioner was referred to other agencies that could offer the assistance he sought, a process followed by all other refugees and asylum seekers who find themselves in similar circumstances.
v. Under Article 21(2) of the Constitution as read to together with Article 43, the obligation to provide decent housing is firmly placed on the state and not private agencies such as the 1st Respondent. The 1st Respondent therefore did not violate the Petitioner’s right to decent housing.
vi. Under Article 18 and 28 of the 1951 Convention Relating to the Status of Refugees, it is the role of the contracting states to issue travel documents, work permits and other necessary documents to refugees to facilitate their capacity to engage in self-employment, and not private agencies such as the 1st Respondent.
vii. Under Part III of the Criminal Procedure Code, the arrest of suspects and the subsequent decision to charge or release them is the responsibility of the National Police Service in conjunction with the Director of Public prosecutions. Therefore, any grievances and alleged violations relating to his arrest, detention and arraignment in court should not be directed at the 1st Respondent.
viii. The 1st Respondent played no role in the closure of the business of the Petitioner and only learnt of this after the Petitioner reported on said closure to its officer in Nairobi.
ix. Under Section 8(m) of the Refugees Act 2021, provision of security to refugees and asylum seekers is a function of the Commissioner for Refugee Affairs and not the 1st Respondent.
x. The Petition is otherwise incompetent, baseless and an abuse of the process of this Court as the Petitioner’s rights have not been violated in any manner as alleged or at all and the same ought to be dismissed with costs.
20. In addition, the 1st Respondent through its Executive Director, Barlet Colly Jaji filed its Replying Affidavit sworn on 26th September 2024.
21. To begin with, he avers that the Petitioner did not report the alleged attack that occurred in May and October 2021.He nonetheless notes that the 1st Respondent is not vested with the mandate to prosecute criminal matters. He states that the 1st Respondent’s assistance revolves around representing and supporting refugees and asylum seekers.
22. He depones that the Petitioner came to the 1st Respondent on 21st February 2023 and was attended to by Fresha Nabwire. He informed them that his children had been taken to alternative care. This was after his liquor business was raided and liquor worth Ksh.79,000 confiscated by the police.
23. He states that the Petitioner in addition sought assistance to pay his rent and to be repatriated to his Congo with his children. With regard to the second request, the Petitioner was referred to the 2nd and 3rd Respondents as they are the only agencies whose mandate extends to repatriation.
24. He claims that the Petitioner is cognizant of the 1st Respondent’s mandate and also that it lacks capacity to provide him with house rent as sought. He stresses that doing so would be acting outside its scope.
25. He depones that the 1st Respondent in a bid to assist the Petitioner visited the area chief and Kangemi Police Station. He states that Ms.Fresha was informed that the Petitioner was running an illegal wines and spirits shop in Kangemi without a license. Furthermore, she was informed that the Petitioner had been arrested severally and released with a warning over the issue.
26. He depones that Ms. Fresha advised the Petitioner that the 1st Respondent would assist him secure a work permit for his business. He states that the Petitioner declined this offer and persisted that he only wants to be repatriated.
27. With regard to the Petitioner’s children, it is alleged that as per the OCS, the Petitioner had abandoned his children at the police station following his release, arguing that the police had taken his source of income and so was unable to take care of them a fact that was unknown to the 1st Respondent. He informs that the police treated the children as abandoned and handed them over to the children’s department who then took them to Nairobi Children Rescue Center on 21st January 2023.Later on, on 14th August 2023, they were transferred to Tumshangilie Children’s home.
28. It is noted that when Ms.Fresha visited the children, she was informed that no court process had been initiated in their case. They in addition required Ms. Fresha to provide a physical location of the Petitioner so as to assess suitability in line with the principle of a child’s best interest.
29. He states that the Petitioner returned to the 1st Respondent’s offices in May 2023 and camped outside their office thereafter. He notes that Ms. Grace’s attempt to assist him get a license was vehemently declined by the Petitioner. In addition, the Petitioner is said to have stripped naked causing a lot of commotion. At this juncture, he notes that they had to engage the services of security agents, Cobra Security team who forcibly dressed the Petitioner and took him to Kilimani Police Station.
30. He depones that following this incident, the City Council decided to remove all the campers outside their premises. The 2nd Respondent relocated them to Kakuma camp. He adds that the campers including the Petitioner had camp documents however had not requested for a change of address from the 4th Respondent.
31. In view of this, he informs that the Petitioner was not forcibly removed outside their offices and his belongings taken as alleged. Likewise, he states that when the Petitioner was arrested he was only charged with public indecency and not terrorism as alleged. Equally, the 1st Respondent did not take his refugee documentation as claimed.
32. He argues that the Petitioner in bringing this Petition has come with unclean hands as depones false and misleading information. On this basis, he states that the Petition does not have any merit.
2nd, 3rd and 6th Respondents’ Case
33. The 2nd, 3rd and 6th Respondents responses and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
4th Respondent’s Case
34. The 4th Respondent, John Burugu filed his Replying Affidavit sworn on 14th August 2024. He informs that he is the head of the Department of the Refugee Services established under the Refugees Act.
35. He depones that contrary to the Petitioner’s allegation that his Department has refused to issue him identification documents, he affirms that the Petitioner was issued with an asylum seeker’s pass which serves as proof of a bona fide application for recognition as a refugee and proof of registration which allows his children to enroll in school.
36. He notes that although this is a termporary document, it legalizes the Petitioner’s presence in Kenya. The same is issued pending the processing and consideration of issuance of a refugee identification. He avers that issuance of this document is dependent on approval of the refugee status application on a discretionary basis. Considering this, he stresses that the same cannot be presumed or demanded as the Petitioner is seeking to do. He however notes that the discretionary power to issue it is based on national and international legal standards which safeguards the integrity of the asylum process.
37. He points out that the Petitioner conceded that he left Kakuma Refugee Camp without obtaining proper authorization forms and in addition failed to notify him. He informs that this is contrary to the law and contravenes Section 31 of the Refugee Act which requires refugees and asylum seekers to stay in the designated areas. He informs that these designated areas are equipped to provide security, food, shelter, education and medical assistance. As such, he argues that the Petitioner’s decision to relocate to Nairobi in addition to being unlawful was unwarranted and premature.
38. He makes known that resettlement and assimilation as sought is not a matter of right but a solution offered to these groups on a discretionary basis. He informs that this process is overseen by the United Nations High Commissioner for Refugees (UNHCR).
39. It is deponed that in the circumstances of this case, he is not able to continue the process of determining the Petitioner’s refugee status until he is acquitted of the terrorism charges as deponed by the Petitioner. He avers that he is obligated to balance protection of asylum seekers and refugees with the imperative of first safeguarding national security under Section 27 of the Refugee Act.
40. In light of this and as guided by the law, he concludes that the Petitioner obligated to prove the allegations cited in his Petition.
5th Respondent’s Submissions
41. CI Albert Chebii and OCS for Kilimani Police Station on behalf of the 5th Respondent filed a Replying Affidavit sworn on 16th September 2024.
42. He depones that on 8th May 2023 at 9:00am, they received a complaint from the 1st Respondent’s officer, Grace Maina. She reported that the Petitioner was outside their gate with placards stating ‘Haki Iko Wapi’ and began shouting as he demanded to be let it. The report added that the Petitioner had become violent and even stripped naked causing a disturbance contrary to Section 95(1) of the Penal Code. The 1st Respondent’s team is said to have dressed him and then brought him to the station. The complaint was recorded under OB Entry Number 17/08/05/2023.
43. He depones that in addition to Grace Maina’s statement, they recorded a statement from the security guard, Kennedy Ondieki Maranga. He informs that the arrest was done by PC Tabitha N. Nkaitole. The matter was reported to the Office of the Director of Public Prosecutions on 9th May 2023 and Petitioner arraigned before Kibera Law Courts.
44. He makes known that the allegation that the 1st Respondent lodged a terrorism claim against the Petitioner is false. He states that their Occurrence Book records indicates that no such complaint has ever been lodged. He further affirms that the whole process was conducted in accordance with the law. For this reason, he argues that the Petition does not disclose any legal and justifiable claim against the 5th Respondent.
Petitioner’s Submissions
45. On 16th January 2024, Mutungi Kithinji and Company Advocates filed submissions on behalf of the Petitioner and highlighted the issues for discussion as: whether the 1st and 3rd Respondents failed to exercise their mandate by refusing to assist the Petitioner; whether the 2nd and 4th Respondent failed to exercise their mandate by refusing to issue the Petitioner the required documents and whether the 5th and 6th Respondent failed to exercise their mandate to offer the Petitioner protection.
46. Counsel in the first issue submitted that the 1st Respondent’s mandate is to promote and protect the rights of refugees and asylum seekers. Reiterating the averments in the Petitioner’s affidavit, Counsel submitted that when the Petitioner sought assistance and legal representation from the 1st Respondent to recover his children, goods and to be issued with house rent, he was threatened that he would be returned to Kakuma Refugee Camp if he kept asking for help.
47. Counsel further submitted that the Petitioner was charged at Kilimani Police Station following the 1st Respondent complaint against him and no evidence was adduced to support it. Counsel recapping the unfortunate events that befell the Petitioner submitted that the 1st Respondent had acted contrary to its mandate in relation to the Petitioner and his children’s case.
48. Counsel stated that the Court in Kituo Cha Sheria and others vs Attorney General (2013) eKLR, affirmed that refugees fall within the category of vulnerable persons as lack means, support systems of family and friends and also by the fact of being in a foreign land where hostility is never very far. Counsel stated that UNHCR in its Guidelines on protection and care of refugee children directs that children need special attention. Equally the Constitution under Article 53 affirms that a child’s best interest is of paramount importance in every matter concerning the child. Counsel submitted that similar protections are accorded in the Children Act and the Convention on Rights of the Child.
49. In Counsel’s view, the 1st and 3rd Respondents failed to assist the Petitioner get back his children despite the 1st Respondent being the reason the minor children were taken away from him. Furthermore, that the 1st Respondent denied the Petitioner access to his children. All these acts are said not to have been in the children’s best interest. As such, Counsel submitted that the Petitioner’s rights had been grossly violated by the 1st and 3rd Respondent.
50. The 2nd and 4th Respondents’ are argued to have also violated the Petitioner’s rights as they failed to issue him with the relevant documents. Counsel submitted that when the Petitioner and his children were received on 26th February 2021, they were not issued with any asylum seeker pass as required by law. Counsel stated that the asylum seeker pass adduced by the 4th Respondent shows that it was issued on 15th August 2024, yet the date of entry indicates that the Petitioner entered the country on 26th February 2021, a clear indication of mischief by the 4th Respondent.
51. Counsel further stated that the 4th Respondent in its Replying Affidavit had admitted that they had suspended the Petitioner’s refugee status process owing to allegations of terrorism charges. Counsel pointed out that the 4th Respondent did not produce any evidence to prove the terrorism charges. Counsel reasoned that if at all the Petitioner had been charged with terrorism he would not have been released from Kibera Law Courts.
52. Counsel relied in Isca Adhiambo Okayo v Kenya Women''s Finance Trust KSM(2016)eKLR where it was held that:
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
53. Counsel contended that as a result of this claim the 2nd and 4th Respondents had willingly refused to process the Petitioner''s refugee status and grant him the required documentation.
54. On the final issue, Counsel submitted that the 5th Respondent’s action of continually arresting and beating the Petitioner for no particular reason violated his rights as an arrested person under Article 49(1)(f) )(i) of the Constitution. The 6th Respondent is accused of failing in his capacity as the overseer of various legal sector institutions to call out the 5th Respondent on the illegal arrests and detention of the Petitioner and also not offering him any assistance.
1st Respondent Submissions
55. The 1st Respondent’s Counsel, Sandra Wabosha filed submissions dated 26th September 2024 and underscored the issues for examination: whether the 1st Respondent has violated the Petitioner’s rights under Article 21, 27 and 43 of the Constitution, whether the 1st Respondent has violated the Petitioner’s rights under Article 3, 18 and 28 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, whether the 1st Respondent has violated the Petitioner’s rights under Article 7, 9 and 17 of the International Covenant on Civil and Political Rights, whether the 1st Respondent has violated the Petitioner’s rights under Article 7 and 23 of the Universal Declaration of Human Rights, whether the 1st Respondent has violated Section 8(m) of the Refugee Act and whether the 1st Respondent has violated Article 4 of the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa.
56. Counsel in the first issue, submitted that the 1st Respondent was unable to respond to the Petition appropriately due to the unspecific, generic, vague and omnibus nature of the Petitioner’s allegations. Counsel argued as such that the 1st Respondent was unable to ascertain precisely the nature of allegations against it. Counsel relied in Anarita Karimi Njeru Vs. Republic (1970) eKLR, where it was held as follows:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
57. Counsel further stressed that the Petitioner had not explained
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