Court rejects police officers' plea to stop Baby Pendo case

Police officers suspected to have been involved in the the murder of Baby Pendo during post-election violence in Kisumu in 2017 at a Milimani court on Monday,November 21,2022 when there plea taking was deferred to January 30,2023.[Collins Kweyu,Standard]

Court of Appeal has rejected an application by 11 senior police officers who sought to halt their prosecution over the murder of six-month-old Baby Samantha Pendo during the 2017 post-election violence in Kisumu.  

The officers, facing charges of murder, torture, and crimes against humanity under the International Crimes Act had hoped to block their prosecution arguing that there were conflicts between Kenya’s laws and the Rome Statute under which they are being charged. 

However, in a unanimous decision, the appellate judges Patrick Kiage, Weldon Korir, and Joel Ngugi dismissed the officers’ plea allowing the prosecution to proceed at the High Court. 

 "We are of the view that although we have found that the suspects’ appeal will not be rendered nugatory, the novel issues raised in the appeal need to be determined without undue delay," the Judges ruled.

The officers, including senior commanders such as Linah Kogey, Mohamed Guyo and Titus Mutune Yoma, are accused of overseeing brutal police operations that led to the death of Baby Pendo and 39 other protesters during the violent protests that erupted after the contested 2017 presidential election results.

The application seeking a stay of the High Court's decision that okayed their prosecution was brought by the officers led by Mutune, who argued that there were no clear rules or regulations guiding proceedings in trials of international crimes under the International Crimes Act. 

They contended that the potential conflict between Kenya’s municipal laws and the provisions of the Rome Statute, particularly in such a unique case, posed a threat to their constitutional right to a fair trial.

According to Mutune’s application, if the officers were required to take a plea before their appeal was determined, they would suffer prejudice, including immediate interdiction as per the National Police Standing Orders. 

He argued that such a scenario would leave them without income, and even if the appeal succeeded, their reinstatement could not be guaranteed due to the likelihood that their positions would be filled.

However, in rejecting the officers’ plea, the appellate judges noted that the Director of Public Prosecutions (DPP) was within its rights to prefer charges against the officers.

The court emphasized that the International Crimes Act had not been repealed or declared unconstitutional, and therefore, it continued to enjoy the presumption of constitutionality.

"Having satisfied ourselves that the applicants are not faced with imminent injustice, we find no good reason to warrant further deferral of their taking of plea and the commencement of their trial," Justice Kiage, who led the bench, stated.

The judges also addressed the officers' fears regarding the trial, particularly their concern that they were being used as "guinea pigs" in the application of the International Crimes Act. 

However, the bench made it clear that this fear was not sufficient grounds to halt the prosecution. 

They further reassured the officers that their constitutional rights would be protected during the trial and that any grievances could be raised through an appeal after the case.

"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 the constitution. Should they be dissatisfied with any aspect of the trial, they will have an opportunity to challenge it in a substantive appeal," the judges ruled.

The case stems from the tragic death of Baby Samantha Pendo, who was killed during police operations in Kisumu in August 2017, following disputed presidential election results.

 The death of Baby Pendo, who was reportedly struck by a blunt object as police pursued protesters in Nyalenda, Kisumu, became emblematic of the violence and human rights abuses that marred the post-election period.

The officers face a total of 47 charges, including murder, torture, and rape, under the International Crimes Act and the Rome Statute. 

They are charged under the principle of "command responsibility," which holds senior officers accountable for the actions of their subordinates during law enforcement operations.

The application to block the prosecution was filed after High Court Judge Kanyi Kimondo last year ordered the 11 officers to take their plea in relation to the charges.

 The officers, who include former and current members of Kenya's national police service now face the prospect of standing trial for their alleged roles in the deaths and human rights violations that occurred during the chaotic and violent aftermath of the 2017 elections.