Read Also

A woman concurrently serving seven-year and 10-year sentences for possession of an assault rifle and ammunition has lost her bid to serve the remainder of her term on probation.

However, Jamila Maalim Hussein Eymoi secured a partial victory in her quest for freedom after the judge ordered that her time spent in police custody be deducted from her current jail term.

Eymoi, who was found in Mandera with a loaded firearm after illegally crossing the border from Somalia, had sought a total waiver of her remaining two-year sentence to return home to her young children.

She was convicted on two counts: being in possession of a specified firearm without a certificate, and being in possession of ammunition without a firearm certificate.

The court heard Eymoi was found with the weaponry on April 20, 2021 at around 1800hrs, in Busley, Mandera East subcounty. She was acquitted on a third count of entering Kenya through a place not designated as a point of entry.

The trial court sentenced her to 20 years’ imprisonment on the firearm count and 10 years on the ammunition count.

She appealed. “Being dissatisfied with the determination of the trial court, she appealed against both her conviction and sentence before the High Court vide Criminal Appeal Case No E050 of 2022," court records show.

"Upon evaluating the evidence on record, the court substituted the 20-year sentence with seven years in Count I and maintained the 10 years’ imprisonment in respect to Count II. The same was to start running from the date of conviction, being August 1, 2022. That the sentences were to run concurrently.”

In her latest application dated February 11, 2025, Eymoi argued that she had been faithfully serving her term and that the remainder of her sentence, about two years, should be waived to allow her to reintegrate into society.

She stated that she is remorseful, a first offender and a mother of children aged nine, seven, six, four and two years, who are in dire need of parental care.

Eymoi urged the court to grant her an opportunity to serve the remainder under probation, relying on section 4(b) of the Probation of Offenders Act and Article 165 of the Constitution. She also argued that the time spent in custody before sentencing had not been taken into account as required by the Criminal Procedure Code.

The prosecution opposed the application, arguing that the applicant had already appealed against her conviction and sentence and partially succeeded.

In his ruling on Wednesday, Justice John Onyiego at the High Court in Garissa agreed with the prosecution that he could not simply waive the sentence because a judge becomes ‘functus officio’ [duty or mandate has expired] once a sentence is pronounced.

However, the judge considered the time Eymoi spent behind bars awaiting trial.

“In recognition of the time spent as articulated under section 333(2) of the Criminal Procedure Code, it is noted that the applicant was arrested on April 20, 2021 and arraigned in court on April 22, 2021,” Justice Onyiego observed.

“She spent in custody until July 6, 2021 when she was released on bond and after absconding court, her bond terms were cancelled upon being re-arrested on March 31, 2022. She was consequently sentenced on August 1, 2022, thus she spent a total of six months and 17 days in custody, which ought to have been considered.”

While the judge refused to grant her probation, Eymoi gained partial victory, with Justice Onyiego stating: “To that extent, the application partially succeeds and partially fails.”