The case involving the murder of Baby Pendo in 2017 failed to take off on Tuesday yet again because two suspects failed to show up in court.
Twelve police bosses who are believed to bear the greatest responsibility for the killing of Baby Pendo and others during the 2017 post-election chaos in Kisumu were to be charged today with the murder.
They are Titus Yoma, Titus Mutune, John Chengo, Linah Kogey, Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robi, Josphat Sensira, Mohammed Ali Guyo, Mohammed Baa and James Rono.
They were first arraigned in 2022 but are yet to take a plea.
When the case came up before Justice Lillian Mutende, lawyer K Jerono representing Linah Kogey said her client fell ill and was not able to be present.
Mohamed Baa who is the eleventh suspect was also not in court as he has remained at large ever since despite numerous arrest warrants being issued against him.
The DPP through senior assistant DPP Vincent Monda asked for adjournment saying the nature of the case requires that a plea be taken when all the suspects are present.
The application was vehemently opposed by lawyers representing victims led by Willis Otieno.
Otieno said victims were increasingly getting fatigued by the delay of the matter taking off and that they were apprehensive that the case might not get off if all suspects must be present.
“At this rate, it may be practically impossible for the case to start if the requirement is that all suspects must be present in court to take plea together,” he said.
He urged the court to direct that those present plead to the charges.
Otieno claimed that authorities were undermining the case by failing to arrest Baa yet he is frequently seen in Nairobi and Wajir counties.
“The suspect has been sighted severally in South C in Nairobi and often travels between Nairobi and Wajir with occasional trips to Somalia. The state cannot fail to arrest him if they want to,” he said.
He said there was complicity to undermine the case given that the suspects are former or serving police bosses including one currently serving as a commissioner of police based at Vigilance House, the police headquarters in Nairobi.
“We can’t and should not ignore their influence and leverage in undermining that taking of these proceedings. The victims are witnessing a judicial circus as their tormentors are abusing the judicial process,” he said.
The officers were first arraigned in October 2022 but are yet to take a plea.
The delay is mainly because of a case they filed that challenged their prosecution.
Through their lawyers, the officers had initially faulted the proposed charges in a preliminary objection until Justice Kanyi Kimondo ruled in July 2024 that the suspects were properly arraigned and should plead to the charges.
He directed all the suspects to be physically present in court on October 3, 2024, for plea-taking.
However, the plea-taking was again deferred as the eleventh suspect Mohammed Baa was not present in court.
Baa has never appeared since his colleagues were first arraigned and has not been arrested despite numerous warrants for his arrest.
Monda said the nature of the charges requires that all suspects must take plea together because the issues are intertwined.
The suspects are facing 47 counts of crimes against humanity including murder, torture and rape.
Monda said the DPP had written to Inspector General of Police Douglas Kanja to arrest Baa and produce him in court.
He said the court can summon the police boss to explain why Baa has not been arrested. L
awyer Betty Wambua representing the International Justice Mission on behalf of the victims asked that those present be directed to take plea.
“Criminal culpability is individual in nature as so the other suspects can plead to the charges. This case has dragged since 2017 and some victims have since died. We are at risk of witness fatigue and memory loss,” Wambua said.
Lawyer Victor Kamau for the Kenya National Commission on Human Rights agreed with Kamau and demanded that the IG be summoned to explain Baa’s whereabouts.
Defence lawyers however agree with the DPP that plea-taking be deferred until all suspects are present.
Justice Mutende will rule on the application at 2 pm Tuesday.
