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Court of AppealDismissedCriminal Appeal 447 of 2007· [2009] KECA 358 (KLR)

MOHAMED AYUB SHEIKH v REPUBLIC [2009] KECA 358 (KLR)

Court of Appeal of Kenya
23 January 2009
ROR.S.C. OmoloPWP.N. WakiJOJ.W. Onyango Otieno
2,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that you cannot challenge a deportation order through criminal proceedings — only judicial review can overturn it.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Mombasa against a single remark in a High Court judgment. The appellant, a Pakistani national, was convicted in the Chief Magistrate's Court at Mombasa on four counts under the Immigration Act and the Aliens Registration Act, including returning to Kenya in breach of a removal order made under section 8 of the Immigration Act after he had been declared a prohibited immigrant. On first appeal, Maraga, J allowed the appeal, quashed the convictions and set aside the sentences because the guilty pleas were not unequivocal owing to the absence of an interpreter, but stated that the trial magistrate's order of deportation stood. The appellant appealed against that remark on two grounds, only the first of which was argued: that the Judge could not confirm the removal order after declaring the plea a nullity. The Court of Appeal held that the removal order was made by the Minister under section 8 of the Immigration Act before the criminal proceedings and that the Act provides no appeal against such an order; the only remedy was judicial review, which the appellant never pursued. Neither the subordinate court nor the High Court therefore had jurisdiction to interfere with the order, even at sentencing, and quashing the convictions left the order intact. The appellant could regularize his status from outside Kenya. The Court affirmed the superior court's decision and dismissed the appeal. The judgment binds subordinate courts and the High Court to the proposition that criminal proceedings cannot be used to collaterally attack an unchallenged Minister's removal order.

Key legal issues

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01

Effect of the High Court's remark that the deportation order stands despite quashing the convictions

Holding

The Court of Appeal held that the learned Judge took the right course: quashing the convictions did not disturb the Minister's prohibition order, which remained in force and precluded the appellant's continued presence in Kenya.

Reasoning

The appellant had been declared a prohibited immigrant under section 8 of the Immigration Act before his arrest. That Act provides no appeal against such an order; the only remedy was judicial review, which was never pursued. The subordinate court could not interfere with the order even at sentencing. Similarly, the High Court, having quashed the convictions for want of an interpreter, could not allow the appellant to remain in Kenya, as no application for stay had been properly made. Regularization could be sought from abroad.

p. 4
02

Whether a nullified plea could undermine the subsequent removal order

Holding

No. The status of prohibited immigrant rested on the Minister's order predating the criminal proceedings; it was never a matter for the criminal courts to decide and its validity was unaffected by the defective plea.

Reasoning

It was not disputed that the appellant had been declared a prohibited immigrant before arrest and charge; he was charged under section 13(1)(g) for returning in breach of a section 8 order. The prosecution's admitted facts established the order's existence. Since the Act makes no provision for appeal against such an order, the criminal courts could not revisit it, even where the plea was later held to be a nullity; the only route was judicial review.

p. 4

Legal principles established

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  • A subordinate court has no jurisdiction to interfere with a Minister's removal/prohibited-immigrant order under section 8 of the Immigration Act, even at sentencing; the only avenue to challenge such an order is judicial review.
  • A prohibition order under section 8 of the Immigration Act continues in force and may be enforced by removing the person whenever found in Kenya; quashing related criminal convictions does not nullify the order.
  • A person facing an unrelated prosecution cannot use that prosecution as a vehicle to obtain remedies against an unchallenged Minister's removal order.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The decision of the superior court stands

Authorities

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Legislation

  • Immigration Actsection 13(2)(f)
  • Immigration Actsection 13(2)
  • Immigration Actsection 13(1)(g)
  • Immigration Actsection 8
  • Immigration Actsection 8(1) and (2)
  • Immigration Actsection 8(4)
  • Immigration Actsection 8(7)
  • Aliens Registration Orderregulation 4(1)
  • Aliens Registration Act (Cap 173)section 3(3)
  • Penal Codesection 26A
  • Constitution of Kenyarights of an accused person (referenced generally as rights violated by defective plea)
On appeal from
High Court of Kenya at Mombasa
H.C. Cr. A. No. 160 of 2007
Jurisdiction invoked
Second appellate jurisdiction under the Criminal Procedure Code over an appeal from the High Court sitting on first appeal (Criminal Appeal 447 of 2007, Court of Appeal at Mombasa)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "MOHAMED AYUB SHEIKH v REPUBLIC [2009] KECA 358 (KLR)", Case Analysis (2009). Criminal Appeal 447 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/358/eng@2009-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.