Court dismisses appeal to delay trial of 12 police officers accused of killing Baby Pendo

The Court of Appeal has dismissed an application by 12 police officers accused of killing baby Samatha Pendo at the height of the 2017 General Elections to delay their plea-taking, allowing the Director of Public Prosecutions the leeway to proceed with formal charges.

A three-judge bench comprising Judges Patrick Kiage, Weldon Korir, and Joel Ngugi on Friday ruled that the crimes for which the applicants are charged stem from omissions and commissions that took place in 2017, which is over seven years ago. Therefore, any further delay in the trial will negatively impact the victims' rights to access justice.

The judges further reminded the suspects that a delay in the trial would affect the quality of justice.

"It is possible that the memories of the witnesses are fading and the quality of the exhibits, if any, is deteriorating," the ruling stated adding that "The Court is called upon to strike a balance between the alleged violation of the rights of the applicants and the right to access justice by the victims of the alleged crimes."

Following the declaration of the presidential results in the 2017 General Election, violence erupted in, among other places, the informal settlement of Nyalenda in Kisumu where police were called to quell the violence.

As a result, a baby called Samantha Pendo ("Baby Pendo") lost her life in the skirmishes, and so did other civilians as others got maimed; raped and tortured.

An inquest was conducted into the cause of Baby Pendo's death, and upon conclusion, it was determined that police officers, who included the suspects, were criminally liable for the death of Baby Pendo.

The findings were forwarded to the DPP for appropriate legal action and on October 26, 2022, the DPP notified the High Court, that 12 police officers, among them being the suspects, would be charged with multiple counts of murder, rape and torture being crimes against humanity under sections 6(3)(a) & (b) and 7(1)(f) of the International Crimes Act, as well as Article 28(b) of the Rome Statute of the International Criminal Court. One of the named victims in the information was Baby Pendo.

Conservatory orders

The case dragged on over the years with the suspects previously seeking conservatory orders from the High Court to restrain the Republic from arresting or charging them, a request that was dismissed on the ground of mootness on November 21, 2022.

Another application by the suspects that aimed at certifying the matter as raising significant legal questions to be heard by an uneven number of Judges, as stipulated in Article 165 (4) of the Constitution, was also dismissed in a ruling delivered on January 18 last year.

However, the question as to whether the suspects should stand trial, which was one of the prayers in the application, was reserved and later dispensed with through a ruling delivered by Justice J. Kimondo on July 25 2024.

This is the ruling the suspects had appealed against in the current ruling Criminal Appeal No. E124 of 2024.

In the impugned ruling, Justice Kimondo determined that the suspects had failed to prove that their rights under Articles 27, 28, 29, 47, 48, 50, and 73 of the Constitution had been violated merely by the decision to charge them or by the nature of the charges preferred against them.

The learned Judge then recused himself from presiding over the criminal trial and ordered that the trial be conducted by the next senior Judge in the Criminal Division, except the judge who had previously prosecuted the criminal matter.

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According to court documents, the applicant-one of the suspects felt that if he took plea before the appeal was determined, he would be prejudiced, and the appeal would be rendered nugatory as he would be interdicted immediately as per the provisions of the National Police Standing Orders.

This would then affect his income, and even if his appeal succeeds, his reinstatement could not be guaranteed as another person would have taken over his position.

The court also found the suspects' fears of an injustice or even an infringement of their rights, as unfounded.

"We wish to reiterate the obvious fact that the trial court will be under an obligation to protect the suspects' rights as guaranteed under Articles 49 and 50 of Page 29 of 31 Constitution, and should they be dissatisfied, they will have an opportunity to challenge any aspect of the trial in a substantive appeal to be filed after the trial."

Additionally, the court ruled that 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 the stay is not granted.

"All issues surrounding the implementation of the command responsibility doctrine in our jurisdiction can always be addressed through a substantive appeal after the trial, should it ever come to that," the ruling states.

On NPS's wish to be included in the appeal as an interested party, the court opposed because the service is not subject to the criminal charges before the trial court; thus is not directly affected by the criminal trial; and has no identifiable stake or legal interest in the proceedings.

It is also averred that the NPS is not a necessary party for the complete settlement of the questions in the issue with the appeal, and it stands to suffer no prejudice should it not be allowed to join the proceedings.