The High Court has rejected a prayer made by the former senior police officers accused of killing Baby Pendo, to have the crimes heard by an uneven number of judges.
The officers, who were charged under the International Crimes Act, also brought up the debate as to whether their crimes qualify to be tried under the Act.
They argued that the charges against them including murder, rape and torture, do not meet the threshold of crimes against humanity.
The crimes listed are contrary to the International Crimes Act and the Rome Statute.
In the application to have the matter heard by a bench, it was argued that the issues in the criminal trial are novel, and weighty and that the case raises substantial issues of the law.
The officers want the court to resolve conflicts between the International Crimes Act, which pre-dates the Constitution, and the Rome Statute.
They also want it to define the applicable regulations for a trial before the High Court.
Further, they argued that the International Crimes Act need to be aligned with sections 8 and 8A of the National Police Service Act.
This was, however, opposed by the Independent Policing and Oversight Authority (IPOA), the Director of Public Prosecutions (DPP), the Kenya National Commission on Human Rights (KNHCR), the Independent Medico-Legal Unit and the International Justice Mission.
The DPP argued that the issues raised can be determined by a single judge in line with Article 165 of the Constitution and that the majority of the arguments raised can be addressed during the trial.
The prosecutor also submitted that the applicant misapprehended the distinct procedures between a trial at the International Criminal Court (ICC) and a local trial before the High Court.
The aforementioned institutions contended that the constitution of a bench is unmerited and will only engender further delay of justice in the matter.
Justice Kanyi Kimondo acknowledged that the International Crimes Act dates back to 2008 and that its enactment was informed by the post-election violence then.
He, however, agreed that the statute may not have undergone necessary amendments to align it fully with the Constitution and that regulations under the Act may not have been enacted.
"That is a matter that can conveniently be addressed by the single judge and guided by section 7 (1) of the Sixth Schedule to the Constitution," he added.
The judge said the single judge would have to address some key questions including whether the allegations meet the threshold of international crimes and whether the suspects were commanders or ineffective responsibility of police officers under their control.
"I do not doubt that the issues are not easy. But they do not raise novel or substantial questions of law that cannot be conveniently determined by a single judge of the High Court," he said while dismissing the application.
The officers, among them service commanders, were charged in October 2022 for the offences committed on diverse dates in August 2017, at Nyalenda in Kisumu.
The 12 accused persons include Titus Yoma, Titus Mutune, John Chengo, Linah Kogey, Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robe, Josphat Sensira, Mohammed Ali Guyo and James Rono.
The 11th accused person, Mohammed Baa was not part of the proceedings as he is still at large.
During the plea-taking, a warrant of arrest was issued against him when he failed to turn up in court.