Abdala v Republic (Criminal Revision E351 of 2025) [2026] KEHC 8479 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 8479 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA CRIMINAL REVISION E351 OF 2025 PK ROTICH, J MAY 28, 2026 BETWEEN MWANAHAMISI ABDALA .................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. Before the Court is a Notice of Motion in which the applicant seeks that her sentence of 2 years be reviewed to a non-custodial sentence. The accused was charged in the Chief Magistrate Court at Mombasa with the ofience of obtaining money by false pretense contrary to section 313 of the Penal Code on 9th August, 2023 and she pleaded not guilty. The particulars of the ofience are that on diverse dates the accused with intent defraud obtained Kshs.520,000 from Najmun Abdalla by falsely pretending she was in a position to provide her with a visa knowing it was untrue or false. 2. On 31st July 2023 the accused was granted bail in terms of bond of Kshs.300,000 with one surety and cash bail of Kshs.200,000 which she did not meet. Upon review, she was released on bond of Kshs.200,000 on 10th June,2024. The accused person’s surety, however, was discharged and the applicant was again held in custody on 23.1.2024. 3. On 10.4.2025 the applicant changed her plea to plea of guilty and she was sentenced the accused to pay a fine of Kshs.50,000 in default to serve 6 months imprisonment. She was also sentenced to compensate the complainant Kshs.250,000 in default to serve 18 months imprisonment. Both sentences ran concurrently. 4. In her application the accused pointed that urged the court to be lenient to her and pointed out that the trial court did not consider period of 1 year 4 months she spent in custody while sentencing her. She also pointed out that she already served 1 year in custody. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8479/eng@2026-05-28 1
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5. Section 362(1) of the Criminal Procedure Code provides that: “ The High Court may call for and examine a record for 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 legality of any proceedings of such subordinate court” 6. Further, section 364 of Code provides inter alia that: “ In the case of proceedings in a subordinate court the record which had been called for of which has been reported for orders or which came to the knowledge of the High Court may- 7. a. In the case of conviction, exercise any powers conferred on it as a court of appeal by section 354, 357 and 358 and may enhance sentence b. In the case of any other order other than acquittal, alter or reverse the order….” The issue for determination is to there is any valid reason for review of the Lower Court’s sentence herein by this this Court. It is very clear from the lower court’s record that the applicant spent 1 year 4 months in custody during her trial herein which period was not factored in her sentence as provided under section 333(2) of the Criminal Procedure Code. It is therefore, my finding the sentence meted on the accused unlawful and improper. Having served over 1 year of 2 year sentence imposed on her, the applicant is hereby set free unless otherwise lawfully held. DATED, SIGNED AND VIRTUALLY DELIVERED THIS 28TH DAY OF MAY 2026 HON. P.K. ROTICH JUDGE In the presence of: Accused in person Mr. Sirima for DPP https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8479/eng@2026-05-28 2
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