Abalone v Republic (Miscellaneous Criminal Application E038 of 2025) [2025] KEHC 16306 (KLR) (13 November 2025) (Ruling)
Neutral citation:
[2025] KEHC 16306 (KLR)
Republic of Kenya
Miscellaneous Criminal Application E038 of 2025
JN Onyiego, J
November 13, 2025
Between
Ismael Abdi Abalone
Applicant
and
Republic
Respondent
(Being a revision application against the sentence of Hon.C.M. Maundu (CM) delivered on 22nd October 2020 in Sexual Offences Case No. 12 of 2019 Garissa CM’s court)
Ruling
1.The applicant herein was charged with the offence of defilement contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. Particulars were that on 18.03.2019 in Fafi Sub-County, within Garissa County, he intentionally and unlawfully caused his genital organ(penis) to penetrate the genital organ (anus) of OMI, a child of 10 years.
2.He was also faced with an alternative charge 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 18.03.2019 in Fafi Sub-County, within Garissa County, he intentionally and unlawfully caused his genital organ (penis) to touch the genital organ(anus) of OMI, a child of 10 years.
3.During the hearing, prosecution called four (4) witnesses in support of the charge. In its judgment delivered on 22.10.2020, the learned trial magistrate convicted the appellant of the main count and sentenced him to serve 20 years’ imprisonment.
4.Dissatisfied with the conviction and sentence, he proffered criminal appeal No.E002 of 2020 which confirmed the conviction but reduced the sentence to 15 years. Undeterred, he filed an undated notice of motion seeking to review the sentence by incorporating Section 333(2) of the CPC seeking consideration of the period spent in remand custody. In response, the respondent opposed the application on grounds that Section 333(2) of the CPC was taken into account during the hearing of the appeal. Learned counsel stated that the sentence meted out is legal.
5.I have considered the application herein and the response thereof. The law governing revision in a criminal case is captured under Section 362 and 364 of the CPC. Section 362 and 364 provides as follows;
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 CPC 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.From the record, the court is merely being asked to exercise mercy on the applicant. He is not appealing against sentence nor conviction. It trite law that sentencing is at the discretion of the court and an appellate court can only interfere if the same is illegal harsh or excessive or the trial court failed to take into account relevant factors or considered wrong legal principles.
8.The above position was stated succinctly by the Court of Appeal for East Africa in the case of Ogola S/o Owoura Vs Reginum (1954) 21 270 as follows:-
9.It is therefore clear, taking into account the nature of the offence committed, the sentence imposed is not excessive nor harsh. The trial court properly exercised its discretion hence I have no reason to interfere with it. The issue of Section 333(2) of the CPC was considered during the appeal and 20 months spent in remand custody taken into account. In my view, the court is functus officio. Accordingly, the application is dismissed.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 13TH DAY OF NOVEMBER 2025...................................J.N.ONYIEGOJUDGE