FK (Kenya) v. Secretary of State for the Home Department

"The court considered whether the Asylum and Immigration Tribunal had given due consideration to the consequences of the the Appellant returning to a different part of Kenya. The found that the Asylum and Immigration Tribunal had in fact failed to consider all the circumstances surrounding the Appellant's return to Kenya.

23. In our judgment the tribunal has failed to engage properly with this critical issue. Earlier in their determination (at ?81) they say: ?No example has been adduced before us of communities being targeted by the Mungiki, particularly to undergo FGM.? This is a surprising assertion: what had happened to the appellant and her family was a very clear example of exactly this process. It is set in context, no doubt, by what they go on to note: that there are evidently millions of Kenyan women who are not required to undergo FGM and who therefore, it can be inferred, escape the attention of Mungiki. But that, like the first sentence of ?103, cited above, does not meet the particularity of the appellant?s case.

24. Nor, with respect, does the second sentence of that paragraph do so. On the very clear evidence before the tribunal - both the appellant?s specific evidence and Dr Knighton?s generic evidence ? the penetration of Mungiki into communities where they have as yet no influence has little or nothing to do with whether they are welcomed. That is not how they operate. On the evidence, they operate by recruiting individuals where they can and, for the rest, by imposing their customs and practices on the community by violence and intimidation.

25. The tribunal?s earlier remark (at ?81) that ?If whole communities came under such pressure with such violence, it is perhaps surprising that nothing in the media has been published? is not only speculative but appears to overlook the fact that the material part of Dr Knighton?s report gives sources in the Kenyan press, the second of them derived from a statement by the provincial chief of police for Nairobi, for the Mungiki?s revanchist policy and practice towards renegades. If a distinction is intended by the tribunal between the penetration of communities and the oppression of them, it does not seem to us illuminating in the present context.

26. It is in ?101 that the tribunal set out to deal with the case they have set out in the previous paragraph. They begin by describing that case as a generalised statement, which in our judgment it is not. They then assert that there is little support for it in the detail of the evidence. For reasons we have already given, this too is incorrect: both the appellant and Dr Knighton had given detailed evidence capable of making out thecase. Contrary to what the tribunal next assert, there was every reason, given such evidence, to suppose that the appellant both had been and would remain of particular interest to the sect because of what happened in Kiambu in 2002. The finding in the final sentence of the paragraph seems to us to verge on the perverse: by focusing solely (and dubiously) on the appellant and her father, it ignores the real agent of mischief, her father-in-law, and the strong likelihood that both the insult to him and the elder?s lost dowry would be very well remembered.

27. A similar imbalance is apparent in ?103-4. The suggestion that only the willing are drawn into the Mungiki orbit, contrasting the father-in-law on the one hand with the appellant and her husband on the other, fails to take account of what happened first to her husband, who was murdered, and then to the appellant?s daughter, who narrowly escaped FGM. And the tribunal?s further finding that ?there is nothing advanced before us to indicate that [Mungiki] seek systematically to impose FGM upon noninitiates overlooks the clear evidence that FGM is initiation, and that the appellant, in fear after the killing of her husband, had agreed to it: clear evidence, in other words, of systematic imposition.

28. Lastly, the finding that there was no reason to suppose that the appellant would necessarily stand out in a community where FGM is not practised fails to engage with Dr Knighton?s evidence that her name would always identify her as Kikuyu and ? to Mungiki ? as a renegade. Whether her name stands out may therefore be beside the point: the question is whether it may sooner or later enable her to be identified and targeted."