The High Court will tomorrow rule on whether the plea-taking of 10 senior police officers linked to the murder of Baby Samantha Pendo, and 39 protesters in Kisumu will take place.

This is after the Director of Public Prosecutions (DPP), Renson Ingonga sought a further 45-day delay in the prosecution of the officers citing the need for additional time to review the investigations file and locate the missing retired police officer, Mohammed Baa.

Ingonga through State Counsel Mark Barasa urged for an adjournment explaining that the absence of Baa, who has gone missing since 2022 has hindered the progression of the case. 

Baa, a senior police officer, is allegedly one of the key individuals involved in the events that led to Pendo’s death and the subsequent killings of protesters in Kisumu’s volatile neighbourhoods including Nyalenda, Nyamasaria, Kondele and Obunga.

“We are requesting more time to track down Mohammed Baa, who may have fled the country,” said Barasa. 

“The charges we are pursuing are serious charges of international crimes, including murder, torture, and extrajudicial killings. These cannot proceed without all accused persons being present.”

READ: Judiciary refutes delay claims in Baby Pendo’s case, cites lengthy process

The prosecution had drawn attention to the principle of command responsibility, under which the officers are held accountable for actions carried out by their subordinates. 

As the case involves atrocity crimes, the DPP emphasized that international standards under the Rome Statute necessitate all suspects be brought to trial.

“We are focusing on Article 61 of the Rome Statute, which requires all suspects to be brought before a pretrial chamber,” Barasa stated. 

“The absence of one officer is a serious impediment, but the justice system cannot be allowed to bypass accountability for the sake of delay.”

Further, the court heard that efforts to locate Baa have included seeking assistance from the National Police Service and even contacting his family in Wajir County. 

However, it appears that Baa has not returned to his village since his retirement and may have fled to neighbouring countries.

Legal officers from the National Police Service (NPS) Peter Kanagi who appeared in court on behalf of Inspector General of Police Douglas Kanja who had been summoned revealed that they had been unable to locate Baa.

“After reviewing his service file, we found that Mbaa hailed from a village in Wajir County, located in the North Eastern region, known as Adaga. Upon receiving the orders and the warrant, we forwarded this information to the Regional Commander of the North Eastern region, Peter Lankan,” stated Kanagi, 

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“Their efforts to locate him in the village involved contacting his parents, but the local chief and villagers informed us that the officer never returned to the village after his retirement. There is no trace of him or his relatives there.”

Additionally, Kanagi said that Baa did not register with the National Commission of Retired Officers.

“Given that the officer was close to the border, there is a likelihood that he may have fled to neighbouring countries,” he said.
The NPS said it has since requested international legal assistance to trace him, while the DPP supported efforts to secure an extradition order for his return.

However, the Law Society of Kenya (LSK) strongly opposed the DPP’s application for another adjournment saying It is unfair to continue postponing this matter,

Mwaura Kabata, Vice President of LSK informed the court that: “The DPP must appear in court to explain why this case has not progressed for the fourth time.”

Representing the victims, lawyer Willis Otieno criticized the request for postponement, accusing the DPP of dragging the case further. 

“The victims have suffered for more than seven years, and their families are desperate for justice. This delay only prolongs their agony,” Otieno said.

 “We cannot continue to allow delays in what is a critical case of justice for Baby Pendo and the other victims. The plea must be taken today.”

While calling out the DPP for delaying the matter now twice, Otieno further pointed out the disparity in how cases are handled, emphasizing that the absence of one officer should not stall the entire trial.

“As a state institution, the DPP has a duty to all Kenyans to ensure justice is delivered in every case. It cannot be that, in some cases, trials proceed in the absence of others, but in this particular case, the absence of one person becomes a reason to seek an adjournment. Such a delay would undermine the constitutional provisions for access to justice and the expeditious conclusion of cases,” lawyer otieno says.

“At the very least, this court should invite the DPP to make this application at the trial stage, not at the plea stage. Charges can be amended at any point during the trial, but the plea must be taken today. If the DPP brings an amended charge sheet, the plea can be taken then.”

He also highlighted that one of the accused officers had already been promoted to commissioner of police, further complicating the pursuit of justice.

The senior officers face a total of 47 counts, including murder, torture, and rape, stemming from their roles in the violent clashes that erupted during the 2017 protests over the presidential election results.

The officers, whose names include senior police commanders such as Linah Kogey (Inspector and Post Commander, Nyalenda), Mohamed Guyo (Chief Inspector), Titus Yoma (former Commissioner of Police and Retired County Commander), John Masha (GSU Inspector and platoon commander), and Benjamin Koima (Retired Administration Police Senior Superintendent), face 47 counts of crimes against humanity, including murder, torture, and rape.

The others are James Rono (Chief Inspector), Benjamin Lorema (Kenya Prisons Service), Volker Edambo (Inspector, in charge of Crime Kisii), Cyprine Wankio (Chief Inspector), and Mohammed Baa. 
The charges stem from the Command Responsibility principle under the International Crimes Act 2008.

The tragic murder of Baby Pendo, allegedly at the hands of police officers, occurred between August 11 and 15, 2017, during a time when the country was wracked by violent protests in Kisumu.

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 The protests were sparked by disputes over the presidential election results. In the heat of the unrest, police officers clashed violently with protesters, resulting in multiple deaths, including that of Baby Pendo.

Baby Pendo, who died after she was allegedly hit by a blunt object as anti-riot police officers pursued protesters in their compound, has become the face of the victims.

 The police commanders are said to bear the responsibility for the actions and inactions of their juniors who were under their command.
The minor’s death, along with the deaths of 39 other protesters, ignited widespread public outrage and calls for justice.

In 2022, following an investigation by the Independent Policing Oversight Authority (IPOA), the DPP approved over 40 charges against the implicated officers, but the case has stalled in the courts ever since.