A former MP who successfully obtained orders blocking his prosecution for being in the country illegally will now be arraigned to face the same charges.
Former Wajir South legislator Mohammud Sirat, who obtained orders restraining a magistrate's court from charging him as an Australian citizen following an appeal, will now face the charges on May 4 following the High Court verdict.
Dr Sirat, who holds a Kenyan identity card and passport, had appealed to the higher court after he declined to plead to charges of being in the country illegally in a lower court, arguing it would breach his constitutional rights.
He had submitted if the prosecution believed he had dual citizenship, they should have stated in the charge sheet that he is a Kenyan/Australian citizen. He added that charging him as a foreigner would be taking away his presumption to a fair trial.
"In that case, proceedings filed under the Immigration Act are valid and should continue as filed. It is also in those proceedings that Sirat shall demonstrate that he has complied with the Kenya Citizen and Immigration Act. The appeal is dismissed and the MP will plead to the charges," Justice Ngenye Macharia ruled.
The judge said the MP's appeal narrowed down to the constitutionality and applicability of the Immigration Act, noting it had been repealed by the Constitution and the Transitional Schedule had not rendered proceedings filed before promulgation null and void.
"This position has also not been declared unconstitutional by the High Court. I order that the original file in the said magistrate's court be forwarded forthwith to the respective court," the judge ruled.
On August 23, 2010, the Immigration Department had sought Sirat, who was then contesting the Wajir South by-election, charging him as an Australian for being in Kenya illegally.
"On May 25, 2008, at Nairobi's South C estate, being an Australian, he was found to be in the country unlawfully," one of the charges read in part.
Sirat will also face a second charge of misleading William Okello, an immigration officer, on November 29, 2006, at Nyayo House, for not disclosing he was an Australian. He was expected to take a plea before Nairobi Chief Magistrate Gilbert Mutembei, but through lawyer Kethi Kilonzo, he raised an objection to the plea on account of a defect in the charge sheet.
However, State Counsel Victor Mule had argued there was no provision to defer taking a plea or rejecting a charge sheet.
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