Kisumu court to hear case against officers in 2017 Baby Samantha Pendo killing

Nearly eight years after the killing of six-month-old Baby Samantha Pendo during the 2017 post-election violence, the trial of three police officers facing crimes against humanity charges will now be conducted in Kisumu.

The Milimani High Court ordered that the case be transferred from Nairobi to Kisumu to ensure efficient evidence gathering, reduce costs, and expedite proceedings in the interest of justice and public interest.

“While the convenience and access of witnesses must be considered, the rights of the accused must equally be protected in line with Article 50 of the Constitution, which guarantees the right to a fair trial,” Lady Justice Margaret Muigai said.

The court also directed the National Police Service (NPS) to provide adequate protection for witnesses and the accused during transport and hearings. A senior officer from the Inspector General’s office will submit regular status reports on security and trial logistics.

At least 80 witnesses are expected to testify in the case.

The transfer was requested by the Office of the Director of Public Prosecutions (ODPP) and the Independent Policing Oversight Authority (IPOA). They argued that most witnesses live in Kisumu and that holding the trial there would facilitate inspections of key sites linked to the case.

“The over 80 witnesses are better served and will access justice by testifying in the nearest court and reduce the expenses of travel and stay in Nairobi until they testify in court. It is only fair and just that where the majority of witnesses reside, the court proceedings are conducted at the nearest court,” Justice Muigai said.

The case file will now be placed before Justice Kimondo in Kisumu for further directions.

Four officers — John Chengo Masha, Linah Kosgey, Cyprine Robi Wankio, and James Rono — who were serving as Inspectors of Police at the time, face charges under the International Crimes Act and the Rome Statute for crimes against humanity, including murder, rape, and torture committed by subordinates under their authority due to failure to exercise proper control. They have pleaded not guilty and were released on cash bail of Sh1 million.

A fifth suspect, Mohammed Baa, remains at large, and a warrant for his arrest has been issued. The alleged offences occurred in the informal settlements of Nyalenda, Nyamasaria, Kondele, and Obunga in Kisumu County.

The accused opposed the trial transfer, citing safety concerns, the condition barring them from Kisumu, and the financial burden of relocating. Justice Muigai, however, noted that the court may need to visit the sites in Kisumu where the offences allegedly occurred and ruled that public interest and justice outweighed the accused’s concerns.

The Court of Appeal had earlier dismissed the accused’s bid to halt the trial, assuring them that the trial court is obligated to protect their constitutional rights under Articles 49 and 50, and that any grievances can be challenged during proceedings.

“Their fear that they are being used as guinea pigs in respect of the application of the provisions of the International Crimes Act, 2008, and the Rome Statute to members of the National Police Service is also not sufficient reason for holding that their appeal will be rendered nugatory if stay is not granted,” the Court of Appeal said in May.

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