REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CRIMINAL REVISION NO. E138 OF 2024
REPUBLIC……………………………………………………………………….......APPLICANT
VERSUS
TEKUIT OKBAY & 14 OTHERS………………………………………………….RESPONDENTS
RULING
Introduction
1. Before this court is an Application for Revision brought under Article 165(6) of the Constitution as read with Sections 362 and 364 of the Criminal Procedure Code. The Applicant urges this Honourable Court to examine the proceedings and specifically the ruling and orders of the Senior Principal Magistrate (Hon. C.A. Mayamba) in Kakuma MCCR E279 of 2024 (Republic v Tukuit Okbay and 14 Others) . The genesis of the proceedings was the arrest of the Respondents on 14 th June 2024 at approximately 1840 hours at Prestige Guest House in Kakuma town. Following a tip-off, DCI officers arrested the individuals after they failed to produce documentation or movement passes. The Respondents were charged with being unlawfully present in Kenya, an offence contrary to Section 53(1)(j) read with Section 53(2) of the Kenya Citizenship and Immigration Act, 2011.
2. On 24 th June 2024, the charges were read to the accused persons in the Tikringinya language through an interpreter. All fifteen accused persons pleaded, ‘ It is true ’ leading the Court to enter a plea of guilty. On 25 th June 2024, the Refugee Consortium of Kenya intervened, arguing that the Department of Refugee Services had the mandate over refugees and asylum seekers under the Refugee Act, 2021, emphasizing that Section 15 requires the exhaustion of the right of appeal before prosecution can proceed. The court solidified its procedural course correction by ordering a comprehensive multi-agency review, specifically including Immigration officials, the DRS legal team, and the Anti-Terror Unit.
3. Despite the multi-agency report not being tabled, the court proceeded on 28 th June 2024, reading fresh charges and recording a second plea of guilty from all the Fifteen 15 Respondents, resulting in their conviction. RCK immediately objected to sentencing, invoking Section 15 of the Refugee Act, the principles of non-refoulement, and the necessity of conducting an onward mover assessment. In response, the SPM, noting the alleged non-compliance by DRS in participating in the ordered assessment, issued warrants for the arrest of the Camp Manager.
4. The final ruling was delivered on 1 st July 2024 whereby the court confirmed receipt of the final multi-agency report, which revealed that the accused persons were victims and not involved in any security threat. The SPM recognized that the accused were vulnerable people who had fled Eritrea and were refugees in Sudan.
5. It is for this that the Applicant seeks the revision of the orders issued by the SPM, arguing that the magistrate’s decision was grossly erroneous, illegal, and represented a perverse exercise of judicial discretion. The primary prayer is for the impugned orders to be set aside and for the Respondents to be sentenced as provided for under Section 53(1)(j) read with Section 53(2) of the KCIA.
6. The Applicant submitted that the Magistrate Court acted arbitrarily and perversely by ordering that the Respondents be allowed to seek asylum within Kenya even after they had pleaded guilty to the offence of unlawful presence. It is presented that the charges were read in a language the Respondents understood, they pleaded guilty, and during mitigation, they failed to indicate they were fleeing war or seeking asylum, which, the Applicant argued, would have necessitated a plea of not guilty.
7. The Applicant contend that a discharge granted pursuant to Section 35(1) of the Penal Code ought to be unconditional. It is argued that the trial court disregarded the earlier recommendations of the Commissioner for Refugees Affairs, conveyed through the Camp Manager’s report dated 18 th June 2024, which had recommended that the Respondents be charged for being unlawfully present in Kenya following an assessment. The Applicant further aver that the subsequent Multi-Agency Report of 29 th -30 th June 2024 was improperly before the Court, the report having been an afterthought, filed after the plea stage, and that the multi-agency team members lacked the authority of probation officers typically required to file a pre-sentence report.
8. In response to the Applicant’s Application, the Respondents submitted that Kenya is legally bound by the Refugees Act, 2021, which domesticates international instruments such as the 1951 UN Convention Relating to the Status of Refugees and the 1969 OAU Convention, all of which form part of Kenyan law under Article 2(6) of the Constitution. The Respondents invoked the mandatory non-penalization clause under Section 15 of the Refugees Act, 2021. It is argued that the charge sheet was defective on its face, and the prosecution should have withdrawn the charges the moment the protection claims emerged.
9. Further, it is the Respondent’s case that they had not exhausted their right to appeal their status determination under Section 14 of the Act, rendering the criminal prosecution premature. The Respondents affirm that the trial court was rightly guided by the principle of non-refoulement, a fundamental principle of international law enshrined in Section 29 of the Act, which prohibits the expulsion or return of any person to a country where their life or liberty would be threatened.
10. On the status of the seven of the Respondents who were onward movers, six having previously been registered as refugees in Sudan and one in Ethiopia, it is asserted that Section 4(2)(b) of the Act, which suggests disqualification for those granted asylum elsewhere, only applies if the person can be readmitted to that country and benefit... for effective protection. That given the ongoing civil war in Sudan, which constitutes events seriously disturbing public order, effective protection was clearly unattainable, thus justifying their movement to Kenya to seek safety. That the flight movement was a direct result of fleeing persecution and insecurity.
11. The Respondents further challenged the validity of the initial plea of guilty asserting that the plea was questionable and failed to meet the threshold of an unequivocal plea required by Article 50 of the Constitution and the principles established in Adan V R (1973) EA 45 . They highlighted that the Respondents were unrepresented and relied on a Tigrinya Interpreter, suggesting a lack of full understanding regarding the legal consequences or the existence of a statutory defence based on their asylum claim.
12. Finally, the Respondents defended the Magistrate’s reliance on the Multi-Agency Report. They submitted that the team comprised necessary experts including DRS, DCI, ATPU, Immigration required to address complex protection concerns and potential security or trafficking risks under Section 27 of the Act. The assessment in their view was essential, particularly since no security agency had presented a report indicating the Respondents were a threat to national security.
Analysis and Determination
13. Having considered the grounds in the Application, the parties’ respective submissions as well as the facts presented in the trial record, this Court isolates two main issues for determination being; (i) whether the trial court erred in applying Section 15 of the Refugees Act to nullify the effect of the conviction under the KCIA; and, (ii) whether the SPM’s discharge order under Section 35(1) of the Penal Code was rendered illegal or improper by the imposition of conditions.
14. Preliminarily, the application raises an issue on whether the plea of guilty entered by the Respondents was unequivocal and satisfied the constitutional dictates under Article 50 in light of the protection claim under the Refugees Act, 2021. On this point, the Court wish to state that the fundamental standard for accepting a guilty plea Article 50 of the Constitution mandates a plea to be unequivocal with full knowledge of the consequences. The principle established in Adan v Republic [2023] KEHC 27353 (KLR) requires the court to satisfy itself that the accused understands the charges and has no available defence, before entering a plea of guilt.
15. In the context of this file, where the respondents faced the charge of unlawful presence under the Kenya Citizenship and Immigration Act, Section 15 of the Refugees Act, 2021, provides an absolute statutory defence for anyone who passes the definition of a refugee or has has made a bona fide application for asylum.
16. Notably, when the proceedings commenced, the Respondents were unrepresented and required interpretation in Tikringinya. The very act of the trial court of immediately questioning the charges and ordering a multi-agency report on 24 th June 2024, the day of the initial plea, demonstrates that the court was acutely alert on the possible vulnerability of the accused persons. It is apparent that the court harboured a reasonable suspicion that the recorded plea was rendered unsafe and equivocal ab initio due to the unaddressed protection claims.
17. The subsequent proceedings, culminating into the Court’s final ruling that the Respondents were vulnerable people and victims who ought not to be subjected to criminal proceedings was the court’s judicial correction of the initial procedural defect in protecting the Respondent’s constitutional rights over a technical criminal conviction that was unsound in law.
18. Having held so, onto the gist as to whether the trial court erred in applying Section 15 of the Refugees Act to nullify the effect of the conviction under the Kenya Citizenship and Immigration Act, it is the Court’s view that the conflict between the Kenya Citizenship and Immigration Act (henceforth KCIA) and the Refugees Act, is better resolved by the application of the maxims expressed as lex specialis derogat legi generali together with that of generalia specialibus non derogant as rules of interpretation. Both command that a specific legislation override the general statute.
19. The maxims when employed as rules and tools for interpretation prioritize the specific, purpose-oriented statute, over one of general application on a broad subject. In this case Refugees Act, which deals with refugee protection grounded on international instruments must be allowed to override the general law on immigration under the KCIA wherever asylum claims are shown to be exist. The court thus determines that Section 15 of the Refugees Act is a mandatory command, establishing statutory immunity from prosecution for the specific charge of unlawful presence, provided the asylum claim is prima facie bona fide .
20. The court holds that the finding by the trial court, guided by the Multi-Agency Report that the accused were victims of hostile environment in the counties of origin and those of first asylum, essentially affirmed the bona fide nature of their claim, thereby nullifying the legal effect of the conviction.
21. On the Applicant’s contention over the extension of protection to the six respondents from Sudan and one from Ethiopia, the court notes that the Respondent’s demonstration that the civil war in Sudan constituted events seriously disturbing public order was justifiable. Undoubtedly, this condition prevents Sudan, their country of first asylum, from offering effective protection, thereby validating their onward movement under the explicit exemption provided in Section 4(2)(b) of the Refugees Act. By facilitating their asylum determination in Kenya, the trial court correctly upheld the fundamental principle of non-refoulement under Section 29 of the Act.
22. On the issue of whether the trial Court’s discharge order under Section 35(1) of the Penal Code was rendered illegal or improper by the imposition of conditions, the Court makes it clear that section 35(1) Penal Code allows for discharge where other forms of punishment is inexpedient and inappropriate, leading to absolute or conditional discharge contrary to the Applicant’s contention. Section 35(2) permits and details the procedure for conditional discharge under section 35(1) requiring the court to explain the consequences of breaching the condition.
23. The trial court by holding that penalizing the Respondents, vulnerable people, was inexpedient in the court’s view satisfies the threshold for discharge. The imposed condition that the Respondents do co-operate with DRS in their status determination served to facilitate their mandatory transition into the protection determination process, a direct relation to the statutory purpose of the discharge in consistency with Section 35(2) of the Penal Code. The court also views that position to sit in congruence with the need to protect the asylum seekers from all threats including the threat of human smuggling and trafficking.
24. The court holds that the Applicant’s objection that the Multi-Agency Report was an afterthought and lacked the legal standing of a presentence report is without merit. The Refugee Act itself under Section 27 mandates the involvement of multiple agencies in security screening. The complexity of this case, involving international flight, onward movement, and potential trafficking/security concerns, necessitated this broad collaboration. The trial court acted responsibly, exercising an inherent judicial power to seek comprehensive, expert information essential for a procedurally fair outcome. Moreover, the court was never strictly bound by the initial 18 th June 2024 recommendation from the DRS Camp Manager to charge the individuals. Every report to court, even those based on expertise, are merely persuasive and never binding. Once a more thorough evaluation and a resultant report was availed at the request of the court which revealed the Respondents to have been victims and asylum seekers, not involved in any security threat, the court was entitled to rely on this contextual information in making its determination.
25. Accordingly, the Court thus finds and holds that the proceedings and the final order issued by the Senior Principal Magistrate on 1 st July 2024 were, accurately appropriate, correct and legal. The Court correctly invoked the principle of non-penalization under Section 15 of the Refugees Act as read with Section 35 of the Penal Code to secure a just outcome consistent with Kenya’s constitutional obligations under Article 2(6) and the compelling obligations premised on the fundamental principles of international refugee law.
26. consequently, the Application for Revision seeking to reverse the determination by the trial court on the vulnerability of the respondents is determined to be without any merit and is hereby dismissed.
27. Orders accordingly.
Dated, signed and delivered virtually this 6 th day of November, 2025
Patrick J O Otieno
Judge
Page | 8
IN THE HIGH COURT OF KENYA AT LODWAR
CRIMINAL REVISION NO. E138 OF 2024
REPUBLIC……………………………………………………………………….......APPLICANT
VERSUS
TEKUIT OKBAY & 14 OTHERS………………………………………………….RESPONDENTS
RULING
Introduction
1. Before this court is an Application for Revision brought under Article 165(6) of the Constitution as read with Sections 362 and 364 of the Criminal Procedure Code. The Applicant urges this Honourable Court to examine the proceedings and specifically the ruling and orders of the Senior Principal Magistrate (Hon. C.A. Mayamba) in Kakuma MCCR E279 of 2024 (Republic v Tukuit Okbay and 14 Others) . The genesis of the proceedings was the arrest of the Respondents on 14 th June 2024 at approximately 1840 hours at Prestige Guest House in Kakuma town. Following a tip-off, DCI officers arrested the individuals after they failed to produce documentation or movement passes. The Respondents were charged with being unlawfully present in Kenya, an offence contrary to Section 53(1)(j) read with Section 53(2) of the Kenya Citizenship and Immigration Act, 2011.
2. On 24 th June 2024, the charges were read to the accused persons in the Tikringinya language through an interpreter. All fifteen accused persons pleaded, ‘ It is true ’ leading the Court to enter a plea of guilty. On 25 th June 2024, the Refugee Consortium of Kenya intervened, arguing that the Department of Refugee Services had the mandate over refugees and asylum seekers under the Refugee Act, 2021, emphasizing that Section 15 requires the exhaustion of the right of appeal before prosecution can proceed. The court solidified its procedural course correction by ordering a comprehensive multi-agency review, specifically including Immigration officials, the DRS legal team, and the Anti-Terror Unit.
3. Despite the multi-agency report not being tabled, the court proceeded on 28 th June 2024, reading fresh charges and recording a second plea of guilty from all the Fifteen 15 Respondents, resulting in their conviction. RCK immediately objected to sentencing, invoking Section 15 of the Refugee Act, the principles of non-refoulement, and the necessity of conducting an onward mover assessment. In response, the SPM, noting the alleged non-compliance by DRS in participating in the ordered assessment, issued warrants for the arrest of the Camp Manager.
4. The final ruling was delivered on 1 st July 2024 whereby the court confirmed receipt of the final multi-agency report, which revealed that the accused persons were victims and not involved in any security threat. The SPM recognized that the accused were vulnerable people who had fled Eritrea and were refugees in Sudan.
5. It is for this that the Applicant seeks the revision of the orders issued by the SPM, arguing that the magistrate’s decision was grossly erroneous, illegal, and represented a perverse exercise of judicial discretion. The primary prayer is for the impugned orders to be set aside and for the Respondents to be sentenced as provided for under Section 53(1)(j) read with Section 53(2) of the KCIA.
6. The Applicant submitted that the Magistrate Court acted arbitrarily and perversely by ordering that the Respondents be allowed to seek asylum within Kenya even after they had pleaded guilty to the offence of unlawful presence. It is presented that the charges were read in a language the Respondents understood, they pleaded guilty, and during mitigation, they failed to indicate they were fleeing war or seeking asylum, which, the Applicant argued, would have necessitated a plea of not guilty.
7. The Applicant contend that a discharge granted pursuant to Section 35(1) of the Penal Code ought to be unconditional. It is argued that the trial court disregarded the earlier recommendations of the Commissioner for Refugees Affairs, conveyed through the Camp Manager’s report dated 18 th June 2024, which had recommended that the Respondents be charged for being unlawfully present in Kenya following an assessment. The Applicant further aver that the subsequent Multi-Agency Report of 29 th -30 th June 2024 was improperly before the Court, the report having been an afterthought, filed after the plea stage, and that the multi-agency team members lacked the authority of probation officers typically required to file a pre-sentence report.
8. In response to the Applicant’s Application, the Respondents submitted that Kenya is legally bound by the Refugees Act, 2021, which domesticates international instruments such as the 1951 UN Convention Relating to the Status of Refugees and the 1969 OAU Convention, all of which form part of Kenyan law under Article 2(6) of the Constitution. The Respondents invoked the mandatory non-penalization clause under Section 15 of the Refugees Act, 2021. It is argued that the charge sheet was defective on its face, and the prosecution should have withdrawn the charges the moment the protection claims emerged.
9. Further, it is the Respondent’s case that they had not exhausted their right to appeal their status determination under Section 14 of the Act, rendering the criminal prosecution premature. The Respondents affirm that the trial court was rightly guided by the principle of non-refoulement, a fundamental principle of international law enshrined in Section 29 of the Act, which prohibits the expulsion or return of any person to a country where their life or liberty would be threatened.
10. On the status of the seven of the Respondents who were onward movers, six having previously been registered as refugees in Sudan and one in Ethiopia, it is asserted that Section 4(2)(b) of the Act, which suggests disqualification for those granted asylum elsewhere, only applies if the person can be readmitted to that country and benefit... for effective protection. That given the ongoing civil war in Sudan, which constitutes events seriously disturbing public order, effective protection was clearly unattainable, thus justifying their movement to Kenya to seek safety. That the flight movement was a direct result of fleeing persecution and insecurity.
11. The Respondents further challenged the validity of the initial plea of guilty asserting that the plea was questionable and failed to meet the threshold of an unequivocal plea required by Article 50 of the Constitution and the principles established in Adan V R (1973) EA 45 . They highlighted that the Respondents were unrepresented and relied on a Tigrinya Interpreter, suggesting a lack of full understanding regarding the legal consequences or the existence of a statutory defence based on their asylum claim.
12. Finally, the Respondents defended the Magistrate’s reliance on the Multi-Agency Report. They submitted that the team comprised necessary experts including DRS, DCI, ATPU, Immigration required to address complex protection concerns and potential security or trafficking risks under Section 27 of the Act. The assessment in their view was essential, particularly since no security agency had presented a report indicating the Respondents were a threat to national security.
Analysis and Determination
13. Having considered the grounds in the Application, the parties’ respective submissions as well as the facts presented in the trial record, this Court isolates two main issues for determination being; (i) whether the trial court erred in applying Section 15 of the Refugees Act to nullify the effect of the conviction under the KCIA; and, (ii) whether the SPM’s discharge order under Section 35(1) of the Penal Code was rendered illegal or improper by the imposition of conditions.
14. Preliminarily, the application raises an issue on whether the plea of guilty entered by the Respondents was unequivocal and satisfied the constitutional dictates under Article 50 in light of the protection claim under the Refugees Act, 2021. On this point, the Court wish to state that the fundamental standard for accepting a guilty plea Article 50 of the Constitution mandates a plea to be unequivocal with full knowledge of the consequences. The principle established in Adan v Republic [2023] KEHC 27353 (KLR) requires the court to satisfy itself that the accused understands the charges and has no available defence, before entering a plea of guilt.
15. In the context of this file, where the respondents faced the charge of unlawful presence under the Kenya Citizenship and Immigration Act, Section 15 of the Refugees Act, 2021, provides an absolute statutory defence for anyone who passes the definition of a refugee or has has made a bona fide application for asylum.
16. Notably, when the proceedings commenced, the Respondents were unrepresented and required interpretation in Tikringinya. The very act of the trial court of immediately questioning the charges and ordering a multi-agency report on 24 th June 2024, the day of the initial plea, demonstrates that the court was acutely alert on the possible vulnerability of the accused persons. It is apparent that the court harboured a reasonable suspicion that the recorded plea was rendered unsafe and equivocal ab initio due to the unaddressed protection claims.
17. The subsequent proceedings, culminating into the Court’s final ruling that the Respondents were vulnerable people and victims who ought not to be subjected to criminal proceedings was the court’s judicial correction of the initial procedural defect in protecting the Respondent’s constitutional rights over a technical criminal conviction that was unsound in law.
18. Having held so, onto the gist as to whether the trial court erred in applying Section 15 of the Refugees Act to nullify the effect of the conviction under the Kenya Citizenship and Immigration Act, it is the Court’s view that the conflict between the Kenya Citizenship and Immigration Act (henceforth KCIA) and the Refugees Act, is better resolved by the application of the maxims expressed as lex specialis derogat legi generali together with that of generalia specialibus non derogant as rules of interpretation. Both command that a specific legislation override the general statute.
19. The maxims when employed as rules and tools for interpretation prioritize the specific, purpose-oriented statute, over one of general application on a broad subject. In this case Refugees Act, which deals with refugee protection grounded on international instruments must be allowed to override the general law on immigration under the KCIA wherever asylum claims are shown to be exist. The court thus determines that Section 15 of the Refugees Act is a mandatory command, establishing statutory immunity from prosecution for the specific charge of unlawful presence, provided the asylum claim is prima facie bona fide .
20. The court holds that the finding by the trial court, guided by the Multi-Agency Report that the accused were victims of hostile environment in the counties of origin and those of first asylum, essentially affirmed the bona fide nature of their claim, thereby nullifying the legal effect of the conviction.
21. On the Applicant’s contention over the extension of protection to the six respondents from Sudan and one from Ethiopia, the court notes that the Respondent’s demonstration that the civil war in Sudan constituted events seriously disturbing public order was justifiable. Undoubtedly, this condition prevents Sudan, their country of first asylum, from offering effective protection, thereby validating their onward movement under the explicit exemption provided in Section 4(2)(b) of the Refugees Act. By facilitating their asylum determination in Kenya, the trial court correctly upheld the fundamental principle of non-refoulement under Section 29 of the Act.
22. On the issue of whether the trial Court’s discharge order under Section 35(1) of the Penal Code was rendered illegal or improper by the imposition of conditions, the Court makes it clear that section 35(1) Penal Code allows for discharge where other forms of punishment is inexpedient and inappropriate, leading to absolute or conditional discharge contrary to the Applicant’s contention. Section 35(2) permits and details the procedure for conditional discharge under section 35(1) requiring the court to explain the consequences of breaching the condition.
23. The trial court by holding that penalizing the Respondents, vulnerable people, was inexpedient in the court’s view satisfies the threshold for discharge. The imposed condition that the Respondents do co-operate with DRS in their status determination served to facilitate their mandatory transition into the protection determination process, a direct relation to the statutory purpose of the discharge in consistency with Section 35(2) of the Penal Code. The court also views that position to sit in congruence with the need to protect the asylum seekers from all threats including the threat of human smuggling and trafficking.
24. The court holds that the Applicant’s objection that the Multi-Agency Report was an afterthought and lacked the legal standing of a presentence report is without merit. The Refugee Act itself under Section 27 mandates the involvement of multiple agencies in security screening. The complexity of this case, involving international flight, onward movement, and potential trafficking/security concerns, necessitated this broad collaboration. The trial court acted responsibly, exercising an inherent judicial power to seek comprehensive, expert information essential for a procedurally fair outcome. Moreover, the court was never strictly bound by the initial 18 th June 2024 recommendation from the DRS Camp Manager to charge the individuals. Every report to court, even those based on expertise, are merely persuasive and never binding. Once a more thorough evaluation and a resultant report was availed at the request of the court which revealed the Respondents to have been victims and asylum seekers, not involved in any security threat, the court was entitled to rely on this contextual information in making its determination.
25. Accordingly, the Court thus finds and holds that the proceedings and the final order issued by the Senior Principal Magistrate on 1 st July 2024 were, accurately appropriate, correct and legal. The Court correctly invoked the principle of non-penalization under Section 15 of the Refugees Act as read with Section 35 of the Penal Code to secure a just outcome consistent with Kenya’s constitutional obligations under Article 2(6) and the compelling obligations premised on the fundamental principles of international refugee law.
26. consequently, the Application for Revision seeking to reverse the determination by the trial court on the vulnerability of the respondents is determined to be without any merit and is hereby dismissed.
27. Orders accordingly.
Dated, signed and delivered virtually this 6 th day of November, 2025
Patrick J O Otieno
Judge
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