The Director of Public Prosecutions (DPP), Renson Ingongo, has been given 30 days to trace and present retired police officer Mohammed Baa in court to face charges over the deaths of Baby Samantha Pendo and 39 protesters in Kisumu.

Justice Margaret Muigai, on Thursday, also ordered the Inspector General of Police to submit a formal report on the missing officer within the same timeframe to allow the court to proceed with the case in his absence.

The judge issued the directive, noting that Baa’s absence was causing undue delays and that the court is permitted under the law to try the case in his absence.

The six-month-old baby was allegedly killed by police during the post-2017 poll skirmishes.

Furthermore, she granted the DPP’s request to review the charges against Baa and 11 others, allowing for the filing of an amended charge sheet to proceed with the case before the court.

“I will not allow any further delay in this matter. The 11 police officers in court will have to face prosecution if Baa is not found within 30 days,” Muigai stated.

She pointed out that, so far, four rulings by former presiding judges had instructed the DPP to begin prosecution, which has been stalled for seven years.

Justice Muigai also directed that the Office of the Director of Public Prosecutions may consider withdrawing charges against Baa if all efforts to trace him are unsuccessful, as the matter cannot remain in court indefinitely.

This follows a revelation by Ingongo that one of the suspects, Baa, a retired assistant superintendent of police, has disappeared without a trace.

The public prosecutor had sought 45 days to enable the police to arrest him before the plea-taking in the case could commence.

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

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

As the case involves atrocity crimes, the DPP emphasised that international standards under the Rome Statute require all suspects to 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,” said Mark Barasa, a state prosecutor.

State prosecutors, Mark Barasa and Gikui Gichuhi informed Justice Margaret Muigai on January 29, 2025, that efforts to trace Baa at his home in Madaga Village, Korwa sub-location in Wajir County, had been futile.

Barasa, through Chief Inspector of Police Peter Kanani, said it is feared that Baa has crossed the border into Somalia.

Justice Muigai was told that Baa retired from the National Police Service in July 2021 and that efforts to trace him have been unsuccessful.

Wajir County Regional Police Commander Pepita Ranka visited Baa’s home, where relatives reported that “he never went home after retirement.”

Barasa urged the court to grant the DPP’s office time to liaise with international security organisations to trace the suspect, to repatriate him to face justice.

He stated, “Although Somalia is not a signatory to international security organs, the government will seek assistance from relevant international organisations to help bring Baa to book, so he can be prosecuted alongside the other 11 senior police officers in the dock.”

Willis Otieno, representing the lobby group Utu Wetu for the victims, requested that the court issue an order for the victims to be supplied with photos of Baa, to allow them to pursue a civilian approach to enhance his apprehension.