Baby Pendo murder case: Court gives DPP 30 days to review charges, find missing suspect

The High Court has given the Director of Public Prosecutions (DPP) Renson Ingonga 30 days to amend the charges against 11 police officers accused of the murder of Baby Pendo clobbered to death allegedly by the police during the 2017 post-election violence – (PEV)

Ingongo must liaise with the police to trace retired police officer Mohammed Baa Amin within the duration, to be charged with the murder of the six-year-old infant and 39 protesters in Kisumu during the PEV.

Lady Justice Margaret Muigai ordered the Inspector General of Police Douglas Kanja to file a formal report over Mohammed within the same period so that the case could proceed in his (Baa's) absence.

Muigai noted that the absence of Mohammed's unavailability to be charged alongside the others has unduly delayed the case and the court is permitted under the law to try the other suspects in his absence.

The amendments will include removing Mohammed from the charge sheet that includes his 11 accomplices.

"I will not allow any further delay in the matter. The eleven police officers in court will have to face prosecution if (Mohammed) is not found within 30 days," said the judge.

Justice Muigai noted that four rulings by the former presiding judges have required the DPP to commence prosecution which stalled for three years.

The judge additionally directed the Office DPP to also consider withdrawing the charges against Baa if all the efforts to trace him are futile as the matter cannot remain in court indefinitely.

This was Justice Muigai's ruling after Ingonga made the application to have the plea deferred for 45 days to allow the apprehension of Mohammed, a retired Assistant Superintendent of Police who left the National Police Service in July 2021.

"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," stated Senior Assistant DPP Mark Barasa.

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

Principle of command responsibility

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

The senior and middle-level commanders are being prosecuted for offences of murder, rape and torture as crimes against humanity on account of command responsibility because they failed to restrain their juniors under their direct command from committing such crimes.

There were widespread murders, rape and torture in Kisumu town and its surroundings.

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