Tribunal decisions

The decision

AJB
Heard at Field House

APPEAL NO HX24893-2001
On 18 April 2002
Dictated 4 June 2002

JW (Fear-Sufficiency of Protection-Mungiki) Kenya CG [2002] UKIAT 03402

IMMIGRATION APPEAL TRIBUNAL

Date Determination notified:

1ST AUGUST 2002

Before:

Mr K Drabu (Chairman)
Mrs R Faux

Between

JOSEPH NJOROGE WAMBUI

APPELLANT

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

RESPONDENT

Representatives:
For the appellant: Mr S Ahmed of Counsel instructed by Gwilym Hughes & Partners, Solicitors.
For the respondent: Ms M Banwait for the respondent.

DETERMINATION AND REASONS

1. The appellant is a Kenyan citizen, whose date of birth is 12 December 1972. He is married. He arrived in the United Kingdom on 24 May 2001 and gained entry by claiming to be a “ships crew member”. The same day he claimed asylum. On 31 May 2001 the respondent for reasons set out in his letter of that date, refused to grant asylum and decided to give directions for his removal to Kenya. The appellant appealed against that decision claiming that his removal would be contrary to the UK’s governments obligations under the Convention on Refugees and also that it would infringe his human rights as guaranteed under Articles 2, 3 and 8 of the European Convention on Human Rights. The appellant gave oral evidence before the Adjudicator (Mrs A K Simpson). In her written determination promulgated on 9 November 2001, she dismissed the appeal. On 26 January 2002 the appellant was granted leave to appeal to the Tribunal (Miss Kate Eshun, Vice President). In granting leave, Miss Eshun said “the Tribunal is of the view that the Adjudicator’s failure to consider whether members of the Mungiki sect constitute agents of persecution and whether or not authorities in Kenya are able and willing to offer the applicant protection from that sect are the only issues that merit further consideration.”

2. The facts of this case have been admirably summed up in the Adjudicator’s determination. These are as follows. “The appellant is a Catholic and a member of the Kikuyu Tribe. He lived with his parents in the village of Njoro, near the town of Molo until December 1995. His parents were both killed in December 1995 in ethnic clashes with the Nandi Tribe. The appellant’s home was destroyed. As a result, the appellant and his brother moved to the Mattiare district of Nairobi. In February 1996 the appellant obtained employment at a butcher in Korogocho district in Nairobi and went to live there. He married Eunice Mwangangi, a member of the Kamba tribe, in early 1996. He has two children. In January 1997 the appellant decided to revisit his parents farm in Njoro. While he was there he met his uncle, a leader of the religious sect called Mungiki. His uncle asked him to join the sect so that he could avenge his parents death and fight for the rights of the Kikuyu. The appellant did not wish to join the sect because he was Catholic and knew that the Mungiki were harassed by the police and government, so his uncle locked him in a room in his house until the evening. At 6pm, the appellant was taken to a nearby forest by five men. The appellant’s uncle pierced his left arm and drank some of his blood: the appellant was then forced to drink some blood taken from his uncle’s eldest son. The appellant was informed that he had just taken an oath and was warned not to tell the secrets of Mungiki sect – if he did, he would be tracked down and killed. The appellant remained with his uncle for two months and attended meetings every Sunday. However, he did not tell his uncle that he lived in Korogocho and led him to believe that he lived in Nakuru. On two occasions the Mungiki meetings were disrupted by police who used teargas and battens to disperse the participants. The appellant was arrested on both occasions. On the first occasion the appellant was detained for two days and on the second he was detained overnight. He was held in crowded conditions and was not allowed to speak to anyone, even to police officers. On both occasions he was released without charge. Following his second arrest in February 1997, the appellant returned to his uncle’s home. In April 1997 the appellant’s uncle discovered that the appellant was married to a member of the Kamba tribe and told him that his wife would have to be circumcised and that he would have to undergo a second circumcision in order to leave a mark called Ngwati. Upon hearing this, the appellant decided to escape – he travelled home to Kokogocho by Matatu and informed his wife and his employer of what had happened. He remained in Kokogocho until December 2000 and did not attend any further meetings of the Mungiki sect. In December 2000, the appellant went to Gikomba open-air market in Nairobi’s eastern Kamukunji estate to buy childrens clothes. Whilst there, he was accosted by his uncle, who grabbed him and told onlookers that he was the appellant’s father. He claimed that the appellant had run away from home and had stolen money from him. The appellant was able to escape once members of the public helped him after he had explained to them that he had been forced to join the Mungiki sect and that his uncle wanted to kill him. The appellant fled to Mombassa in January 2001 and obtained employment as a fruit seller in Mwembe Taxari market. In April 2001, whilst at work, he was befriended by a British man called Mr Jones, who wanted an African girlfriend. The appellant introduced him to someone he knew. When the appellant later met someone from his uncles village in Mombassa and feared that he would be killed by the villager or other members of the Mungiki sect, he sought assistance from Mr Jones. Mr Jones arranged for him to leave Mombassa in a cargo ship on 5 May 2001. The appellant left his wife and children in Nairobi. The appellant did not seek assistance of the Kenyan police, as he believes them to be corrupt and did not believe that they could offer him protection. He stated that leaders of the Mungiki sect sometimes kill people but are not arrested because they bribed the police officers. He fears that if he is removed to Kenya, he would be persecuted by his uncle and his uncles associates in the Mungiki sect.

3. After referring to the objective evidence that was submitted to her and referring to the arguments advanced on behalf of the respondent as well as the appellant, the Adjudicator made the following findings. She accepted that the appellant is a member of the Kikuyu Tribal group and is a Catholic. She accepted that he had become a reluctant member of the Mungiki sect in January 1997 and had left that sect in March 1997. She did not accept that he had been discovered by his uncle in Nairobi in December 2000 as the appellant had claimed. She regarded this part of the appellant’s evidence as implausible and devoid of credibility. She accepted that the appellant was frightened and had a genuine fear of retribution by the members of the Mungiki Sect. The Adjudicator went on to say, “in essence, the appellant has incurred the hostility of the Mungikis, a religious sect. He left the sect, which he claims to have joined under duress, because he insisted that his wife would have to undergo female circumcision – more commonly called female genital mutilation – and because of his own Catholic faith. However, the hostility of the Mungiki did not arise because his race, religion, nationality, membership of a particular social group or political opinion – the fact that he was Kikuyu, Catholic and married was immaterial. The appellant is at risk merely because he had abandoned a sect notorious for its violence and chauvinism.”

4. The Adjudicator did not accept the submission made on behalf of the appellant that the appellant is a member of a particular social group. The Adjudicator went on to say, “at its strongest, and on the assumption that his claim is wholly credible, I take the view that the appellant’s claim of persecution by the Mungiki does not engage any of the specified reasons under Article 1 of the Refugee Convention.”

5. With regard to the appellant’s claim that he had been arrested twice in early 1997 the Adjudicator said that the detentions do not cross the threshold of severity required to constitute persecution. She went on to say that the appellant had in fact severed his ties with the Mungiki Sect in March 1997 and that the objective evidence shows that the Kenyan authorities took little heed of the activities of Mungiki prior to May 2000, at which time the appellant was not involved with the sect anyway.

6. The Adjudicator also considered the human rights aspect of the appeal and dismissed it on the basis that there was no evidence to support the claim that the appellant is at risk of ill treatment by the Kenyan authorities contrary to Article 3. The Adjudicator concluded her determination by referring to an article which had been submitted to her on behalf of the appellant. According to the article since 10 August 2001 there had been a dramatic change in the attitude of the authorities towards the Mungiki sect and a sea change in the activities of the Mungiki sect. Following their meeting on 10 August 2001 the national coordinator of Mungiki had declared that the Mungiki was to be transformed into a political moment which would target 150 constituencies in the 2002 Presidential elections. The Kenyan government allowed this meeting to proceed despite its strong political agenda. In the light of these recent developments, said the Adjudicator, there are no substantial grounds to believe that the appellant is at risk of ill-treatment by the Mungiki sect.

7. When the matter came before the Tribunal the Counsel for the appellant did not have any papers to place before the Tribunal. He said that his instructing solicitors should have sent us a bundle of documents. We told him that we had received no such bundle. We adjourned to enable the Counsel to make enquiries of the solicitors.

8. When we reconvened, the Counsel apologised and said that his solicitors had made a mistake and had not forwarded the bundle to the Tribunal. He accepted that on this occasion his solicitors had let their client down. We decided to proceed with the appeal with his consent and with the consent of Ms Banwait. However, we decided that it would be in the interests of justice to allow the Counsel seven days to submit further evidence. We directed that such further evidence should be served upon the Home Office Presenting Officer and that the Home Office Presenting Officer would have seven days from the date of the receipt of that evidence to consider if the further evidence merited any comments. In the event, any comments were made by the Home Office Presenting Officer, the appellant’s representative would have three further days to make final observations and forward the same to the Tribunal.

9. We heard arguments from Mr Ahmed and from Ms Banwait. Mr Ahmed relied on the written grounds of appeal and we pointed out to him that the only issues before us were sufficiency of protection for the appellant in Kenya according to the decision granting leave to appeal in this case. Mr Ahmed submitted that the police were incapable of providing protection to the appellant because they were corrupt. He undertook that to provide evidence to back-up his assertion. Ms Banwait defended the Adjudicator’s findings and her conclusions. She argued that the Adjudicator had taken account of all the evidence that had been adduced before her. In her view the Adjudicator’s conclusion that the facts of the case did not engage the Convention was perfectly proper and in the circumstances, she said, it was not surprising that the Adjudicator did not go on to consider whether the appellant would have sufficiency of protection in Kenya. She drew the Tribunals attention to the objective evidence that had been adduced before the Adjudicator and to which the Adjudicator had made full reference in her written determination. Ms Banwait asked that the appeal be dismissed.

10. In the event we did receive a bundle of documents from the appellant’s instructing solicitors and that bundle arrived on 26 April 2002 with a covering letter dated 25 April 2002. In their covering letter the solicitors accept that the bundle was not submitted in time and that this was due to administrative error. We do not accept that because in our view it was pure and simple carelessness on the part of the solicitors in this matter. We are not even sure that a copy of the bundle was served upon Ms Banwait, the Home Office Presenting Officer as we had directed at the hearing on 18 April 2002. However, in our view, no prejudice will be caused to Ms Banwait by us proceeding with our determination without being satisfied as to whether the bundle had been served upon her as we had directed.

11. We have given full and proper consideration to the written submissions made by the Counsel.

12. The Adjudicator had taken the view that the facts of this case did not engage any of the Convention reasons. We can well understand the logic of that finding but we have looked at the case assuming that the fear of persecution claimed by the appellant was for a Convention reason i.e. his religious belief.

13. In our view the written submissions made on behalf of the appellant have little substance. The assertion that the two arrests neither of which lasted more than two nights and both of which took place in 1997 should be regarded as persecution for the purposes of the claim before us, is wholly misconceived. The appellant lived in Kenya for four years after these arrests and he was not subjected to any adverse treatment from the authorities since 1997. On both occasions he was released without charge. In the circumstances, the arrests are of little or no consequence in the issue that is before us – whether upon removal the appellant will be at risk from the authorities for his past association with the Mungiki tribe. In this context, it is important to point out that he had become a member under duress and gave up the membership of the sect only months after having agreed to join it. So he has had nothing to do with this sect since 1997. There is no evidence that he has been harassed or hounded by anyone for his membership or non-membership of this sect. The members of the sect have done nothing to harm him since he escaped in April 1997. He lived in Korogocho until December 2000. His evidence that in December 2000 he was seen and grabbed by his uncle in an open-air market in Nairobi has been rejected by the Adjudicator as implausible and devoid of credibility. The Adjudicator heard oral evidence and the Tribunal does not lightly interfere with findings made by the Adjudicator who has heard oral evidence. We find no reason to disturb the Adjudicator’s finding of disbelief in that part of the appellant’s evidence. Indeed we fully agree with it. In the circumstances, there is little if anything left in the claim of the appellant. The objective evidence shows as has been pointed out by the Adjudicator, that the Mungiki sect has changed its ethos and that the government has implicitly accepted its change of direction to peaceful political activity.

14. The question of sufficiency of protection does not arise because is our view there is no one in Kenya that the appellant requires protection from – not the authorities and not the Mungiki sect. In our view, even if he did, it would be our finding, based upon the current objective evidence, that he would be protected by the authorities in the event of any threat by Mungiki sect and that he would not be threatened by Mungiki tribe since there has been sea-change in their ethos and in their operations.

15. The assertion in the written submission that his 1997 arrests would be on record with the authorities and that therefore the authorities would not protect him and/or that it would be unreasonable to expect him to seek their protection, are lacking in weight and in merit. There is no evidence before us to establish that it is reasonably likely that the appellant will face persecution for a Convention reason on removal from the United Kingdom. Similarly, there is no evidence before us that the appellant’s rights under Articles 2 and/or 3 would be infringed by his removal to Kenya. Unhesitatingly we endorse the Adjudicator’s decision and we dismiss this appeal.

K Drabu
Vice President