One of the five Chinese nationals who were convicted in February last year and later deported to their country of origin is back in the country.
Shao Guixiang is conducting business, even though a repatriation court order is yet to be vacated.
Questions are being raised as to why the immigration department is not taking action on him despite the fact he is an illegal immigrant and they have received complaints from workers at his joint of harassment.
Guixiang and four other Chinese nationals were charged with having been unlawfully present in Kenya and engaging in business without being authorized by a work permit.
They were convicted on their own plea of guilty, and sentenced to one year in prison or to pay a fine of Sh400,000 each and were to be repatriated to their respective countries upon completion of their sentences or payment of fines.
Guixiang, Qian Kun, Sun Qiang, Ye Yajian, and Lyu Yinhua were arrested on January 28, 2022 by a multi-agency team comprising police and immigration department officers at a construction company in Imara Daima, Nairobi.
However, after repatriation on February 24 last year, Guixiang returned to Kenya on March 8, 2022 even before the court order for repatriation was vacated.
Guixiang used the Ugandan route to come back to Kenya, officials say.
Guixiang was then issued with tourist visas, and as a result he continued to engage in business and employment.
The special pass he was granted was only valid for three months -from March 17, 2022 up to June 16, 2022.
The foreigner later went to court through a Notice of Motion dated April 21, 2022 seeking orders that the Department of Immigration services be barred from repatriating them from Kenya.
Justice Lilian Nabwire Mutende however on October 10 last year ruled and struck out the application, adding that since the foreigners were convicts and ultimately repatriated to their country of origin, such special passes though valid may not be of any assistance as they remain prohibited immigrants.
“In the premises, this being a wrong forum, the Preliminary Objection is merited, therefore, the application is struck out,” she ruled.
The foreigner and his co-accused, in their application, had listed the Director General of Immigration, the Department of Immigration Services, the Director of Public Prosecutions (DPP) and the Attorney General as the respondents.
The DPP filed grounds of opposition where it was stated that the conviction and sentence had not been challenged, and, the application was not founded on any criminal case or criminal appeal hence an abuse of due process.
The AG, on his part, filed a Preliminary Objection on a point of law. The AG said the foreigners were prohibited immigrants under section 33 (1) (a) of the Kenya Citizenship and Immigration Act, having been convicted in Kenya for offences under the Act, therefore, their entry was unlawful.
“That the applicants having been repatriated from Kenya following a court order dated February 18, 2022, in Milimani Criminal Case No. E133 of 2022, which was not appealed or reviewed, they were prohibited persons under the Act who were barred from taking up residence in the country and no document would allow them entry. That special passes and work permits do not give them an exemption,” the AG said.
Justice Mutende further ruled that an Immigration Officer is seized of discretionary power to issue a prohibited immigrant with a pass to remain temporarily in Kenya.
“In the instant case I do note that the applicants were granted special passes that were valid from March 17, 2022 up to June 16, 2022. Considering the status of having been convicts and ultimately repatriated to their country of origin such special passes though valid may not be of any assistance as they remain prohibited immigrants,” she ruled.
The matter was also last week brought to the attention of the Immigration and Citizen Services Principal Secretary Prof Julius Bitok, in a letter dated September 28, 2023.
Jacktone Otieno, through Rapando and Odunga Advocates, wrote to the PS saying he was aware that the foreigners came back to the country purportedly on temporary passes.
However, upon being discovered by the government authorities they tried to stop their deportation by filing an application at the High Court.
“The application by Shao Guixiang was dismissed by the High Court vide a ruling delivered on November 10, 2022. The court while dismissing the application on account of jurisdiction also observed that having been convicted and ultimately repatriated to their country of origin such special passes though valid may not be of any assistance as they remain prohibited immigrants,” the letter to Bitok reads.
It says special passes were not of any assistance to Shao Guixiang and his fellow convicts as they remained prohibited immigrants.
“Despite his conviction and repatriation to China after the dismissal of their case, our client has discovered that Mr. Shao Guixiang has again illegally gained entry into the country apparently through unlawful means and is without authorization carrying out business unperturbed in Kilimani area.”
The lawyer attached recent photographs of Guixiang taken in Nairobi to the PS for action.
He added the conduct of Guixiang of illegally gaining entry into the Country in violation of valid court orders and government directives is the highest level of impunity and utmost disrespect for the country’s laws and sovereignty.
“Our instruction is to request your office to urgently intervene and interrogate the circumstances under which Shao Guixiang illegally gained entry into the country and is carrying out business and to take appropriate administrative measures within the law to not only safeguard the rule of law and our sovereignty but also to ensure our security is not jeopardized by undocumented convicted immigrants.”
This prompted detectives from the DCI’s Serious Crimes Unit to raid the group’s yard along Kindaruma Road where they arrested the foreigner and handed him to the immigration officials for action.
The foreigner was however later released and is in business in unclear circumstances.
We could not get a comment from acting Director General of immigration Evelyn Cheluget.
A spokesman for interior Cabinet Secretary Kithure Kindiki said he had demanded explanations from the immigration PS on the issue.
“He will take action if and when he gets a response from the PS on the issue. If there are issues that need action he will act. Be assured,” said an official who asked not to be named.
The issue is said to have caused much tension among those who have handled the case.