Trial involving 11 police officers accused of killing Baby Pendo deferred again

The Office of the Director of Public Prosecutions (ODPP) has once again made an application to postpone the charging of 11 Kisumu police officers mainly middle-level commanders with the murder and rape as crimes against humanity for 45 days.

The officers including a few who have retired are facing charges including the murder of Baby Pendo, a six-month-old clobbered dead as police quelled the violence in Kisumu.

They were expected to answer to the charges today as ordered by Justice Lilian Mutende but when they appeared before Justice Margaret Muigai, ODPP's Mark Barasa applied to have the plea deferred by 45 days to allow apprehension of Mohammed Baa, who is still at large.

Baa, a retired Assistant Superintendent of Police, has been at large since the charges were approved in 2022. Chief Inspector Peter Kanagi who represented the National Police Service said efforts by the police to trace Baa have been futile.

Pepita Ranka, the regional commander for North Eastern made efforts to arrest Baa without success and was informed that the suspect has not visited his rural home in Wanjir since retirement in July 2021.

Barasa said the ODPP has the intention of amending the charge sheet but did not indicate whether they will be making the amendments during the 45 days.

Barasa said there is a need for all the suspects to take plea together for joint prosecution, particularly raising issues of jurisdiction of the Kenyan courts over cases under the Rome statute.

However, the lawyers for the victims led by Edward Mbanya and Willis Otieno objected to the application.

They said the high court Justices Kanyi Kimondo and Lilian Mutende had made specific orders for the suspects to be charged today and such orders have not been appealed, varied or vacated.

"We strongly and vehemently oppose the application and our objection is supported by three court judgements that directed plea be taken on specific dates. For a good measure, that part of the ruling has not been appealed nor application to have it set aside and no order to vacate it made," stated Otieno.

"If the ODPP were minded to amend the charge sheet, they had more than four months to amend."

Justice Muigai will make a ruling tomorrow afternoon, on whether to allow the ODPP's application.

Justice Kanyi had made a ruling that the Kenyan courts had jurisdiction since the statute had been ratified in Kenya. The Rome statute was ratified in Kenya in 2008.

The serious crimes against humanity including torture and rape were committed in parts of Kisumu during the 2017 PEV.

The senior cops include former Kisumu county police commander Titus Yoma, Nyanza regional commander for the General Service Unit (GSU) Christopher Mutune and John Masha who was the Kisumu Central Administration police service (AP) commander.

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Others are Linah Kogey who was in charge of the Nyalenda police post, and inspectors of police Benjamin Koima and Benjamin Lorema who were alternately in charge of a GSU platoon deployed at the Kachok Roundabout among others.

They are accused of failure to exercise control of their juniors to repress unlawful activities including the murder of Baby Pendo on August 12, 2017, at around 1 am.

They will each be charged with murder as a crime against humanity under Kenya's International Crimes Act of 2008, for failing to report Baby Pendo's murder to competent authorities for investigation and prosecution despite knowing she had been killed by officers under their command.

Together with six others who were leading the operation, they face charges of crimes against humanity by failing to use their authority to restrain their officers from committing widespread cases of sexual violence including rape on civilian women during the "Operation post-election Mipango".

Baby Pendo's mother was fleeing her teargassed house and police brutality when the child was brutally injured allegedly by the police.

Dozens of residents of Nyalenda slums were extensively tortured and women gang-raped allegedly by the police officers during the operation to suppress protests by opposition supporters.