Trial in Baby Pendo case to eventually commence
By Zadock Angira, January 20, 2025
Twelve police officers are finally expected to be charged in court on January 29 over the death of six-month-old Baby Samantha Pendo, who lost her life during police operations in Kisumu following the contested 2017 General Elections.
High Court Judge Kanyi Kimondo, in July 2024, ruled that the officers be charged, the first time that the International Crimes Act of 2008 has been applied in Kenya, setting a precedent for future such cases.
The officers are Mohammed Baa, Inspector Linah Kosgey, former Kisumu County Police commander Titus Yoma, former OCPD Kisumu East Christopher Mutune, John Chengo, Inspector Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robe, Josphat Sensira, Mohammed Ali Guyo and James Rono.
The Office of the Director of Public Prosecutions (ODPP) became involved after the trial magistrate at the inquest into Pendo’s death highlighted the role of senior officers in the policing of protests. The widespread protests prompted heavy police operations, which also led to numerous human rights violations.
The magistrate asserted that the commanders in charge of operations at the Kilo Junction in Nyalenda Estate on the night of August 11, 2017 should be held liable.
The ODPP invoked the ICA, a law that provides for the punishment of certain international crimes. The use of the ICA, in this case, represents a shift from the usual focus on individual responsibility to the broader concept of superior or command responsibility. The doctrine of command responsibility holds that superiors can be held criminally liable for crimes committed by their subordinates if they fail to exercise proper control over their forces.
On February 14, 2019, the court found the police officers liable for the child’s death and directed the Director of Public Prosecutions (DPP) to act on the findings in accordance with the law. In October 2022, the DPP filed charges against the suspects at the High Court.
Justice delayed
The case has delayed for too long and the plea-taking has been postponed three times, leading to several complaints.
The Judiciary defended itself and said the plea-taking was rescheduled after Justice Lilian Mutende was transferred to Nyahururu. Judiciary spokesperson, Paul Ndemo Maina, said the delay was also due to the fact that the suspects filed a constitutional petition and application raising legal and constitutional questions for determination.
According to Maina these included the court’s jurisdiction to try crimes under the Rome Statute, potential conflicts between the ICA and the Rome Statute and whether the charges met the legal threshold for international crimes. The accused also sought the empanelment of a larger bench to hear and determine the legal and constitutional questions raised in their petition.
Last year Justice Kanyi Kimondo dismissed this application for empanelment of a larger bench on January 18 and later on in July dismissed the constitutional petition challenging the High Court’s jurisdiction.
When the suspects appeared in court for plea-taking, further applications were filed. After determining these applications, the court scheduled plea-taking for January 15, 2025. However, Justice Mutende was transferred to the High Court in Nyahururu.