Abdullahi v Republic (Miscellaneous Criminal Application E002 of 2026) [2026] KEHC 5446 (KLR) (16 April 2026) (Ruling) Neutral citation: [2026] KEHC 5446 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT GARISSA MISCELLANEOUS CRIMINAL APPLICATION E002 OF 2026 JN ONYIEGO, J APRIL 16, 2026 BETWEEN NOOR HASSAN ABDULLAHI .............................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being revision application against the sentence of hon. E. MULEKA (PM) in S.O Case No. E013 of 2025 delivered on 7-1-2026 in Dadaab law courts) RULING 1. The Applicant was charged before the Principal Magistrate’s’ Court at Dadaab Law Courts with the offence of Defilement Contrary to Section 8(1)(4) of the Sexual Offences Act No.3 of 2006. Particulars were that, on diverse dates between 3-7-2015 and 4-7-2025 in [Particulars Withheld] within Dadaab Sub-county, Garissa County, he intentionally and unlawfully caused his penis to penetrate into the vagina of N.O.M a child aged 16 years old. 2. He was also charged with the alternative count of Committing an Indecent Act with a Child Contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars were that, on diverse dates between 3-7-2015 and 4-7-2025 in [Particulars Withheld] within Dadaab Sub- County, Garissa County, he intentionally and unlawfully caused his penis to penetrate into the vagina of N.O.M a child aged 16 years old. 3. Having denied the charges, the case proceeded to full trial. Consequently, he was convicted and sentenced to 25 years. Aggrieved by both the conviction and sentence he filed a Memorandum of Appeal citing several grounds. During the hearing, he opted to argue the grounds challenging the severity of sentence only. He pleaded that he was very old and that his wife had died. That he was the sole bread winner. In response, prosecution opposed the application contending that the sentence was lawful. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5446/eng@2026-04-16 1
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4. I have considered the application and the oral submissions by both parties. The main issue for determination is whether this Honourable Court has jurisdiction to determine the application herein and issue the orders sought. 5. The law governing revision in a criminal case is captured under Section 362 and 364 of the Criminal Procedure Code. Section 362 and 364 which provides as follows; “ 362. Power of High Court to call for records The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court. 364. Powers of High Court on revision (1) (2) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may — (a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by Sections 354, 357 and 358, and may enhance the sentence; (b) in the case of any other order other than an order of acquittal, alter or reverse the order. (c) in proceedings under Section 203 or 296(2) of the Penal Code (Cap. 63), the Prevention of Terrorism Act (Cap. 59B), the Narcotic Drugs and Psychotropic Substances (Control) Act (Cap. 245), the Prevention of Organized Crimes Act (Cap. 59), the Proceeds of Crime and Anti-Money Laundering Act (Cap. 59A), the Sexual Offences Act (Cap. 63A) and the Counter-Trafficking in Persons Act (Cap. 61), where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review. No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5446/eng@2026-04-16 2
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was required to pass under the written law creating the offence concerned. 3. Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence. (4) Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction. (5) When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed. 6. It is clear from the above provisions that an application for review of sentence can be entertained only for purposes of the court satisfying itself as to the correctness, legality or propriety of the proceedings. Section 364(5) of the Criminal Procedure Code is emphatic that no application for revision should be entertained where an appeal lies from a sentence or order. This position was espoused in Criminal Revision number 194 of 2023 Kisii High Court in the case of Barongo Sianyo Atembe vs Republic. 7. In the instant case, the court is being asked to exercise mercy and therefore reduce the sentence. It is trite that sentencing is at the discretion of the court. An Appellate Court can only interfere if the same is illegal, excessive or imposed after taking into account wrong principles. (See Gacheru v Republic (Criminal Appeal 188 of 2000 [2002] KECA94 (KLR)(20 February 2002) (Judgment). 8. In the instant case, the Applicant is challenging the alleged excess sentence. The offence he is charged of does attract a minimum sentence of 15 years. In his mitigation, the Applicant pleaded for leniency citing his old age (59) as a factor for consideration. He also claimed to be the sole bread winner. Considering the conduct of the Complainant by keeping the affair of a prolonged relationship with the Applicant a secret, there was sufficient reason for the Applicant to benefit from the minimum sentence provided in law. 9. I do not see any aggravating factor to attract the severe sentence of 25 years. In the circumstances, I am persuaded to substitute the sentence of 25 years with that of 15 years’ imprisonment to start running from the date of arrest. In meting out this sentence I have taken into account the period spent in remand custody. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 16TH DAY OF APRIL 2026 ………………… J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5446/eng@2026-04-16 3
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