Some of the suspects during the hearing of the Baby Pendo case at Milimani Law Courts on January 29, 2025 /EZEKIEL AMING'A
The much-anticipated plea-taking for police commanders in the Baby Pendo murder case failed to take place for the fifth time on Wednesday after the prosecution said it was not ready to proceed.
State prosecutor Mark Baraza instead asked Justice Margaret Muigai to give them 45 days to review and amend the charges before plea-taking can take place.
His application followed an admission by the National Police Service that it was unable to apprehend eleventh suspect Mohamed Baa.
Baby Pendo murder case failed to take place for the fifth time on Wednesday after the prosecution said it was not ready to proceed.
They are facing 47 counts of crimes against humanity including murder, torture and rape. However, DPP asked the court for another 45 days to review and amend the charges.
The police said Baa is believed to have escaped into neighbouring Somalia and that it would require the help of international police to have him arrested.
Somalia is also not a member of the Rome Statute and thus cannot therefore be asked to extradite the suspect to face the charges in the Kenyan court.
The prosecution argued that the suspects were not arraigned under the normal penal code offences but under the International Crimes Act, in which they are charged jointly and severally.
Some of the suspects during the hearing of the Baby Pendo case at Milimani Law Courts on January 29, 2025 /EZEKIEL AMING'A
Baraza said the charges contain high atrocity crimes, which are considered the most serious because they affect the whole of humanity.
"Under the circumstances therefore and because Baa has not been produced, the DPP wishes to humbly pray for an adjournment and more time," he said.
That application, however, faced vehement opposition from lawyers representing victims.
The lawyers led by Willis Otieno and Edward Mbanya asked that plea-taking proceeds because the issues raised by the prosecution had been dealt with by Justice Kanyi Kimondo in a ruling delivered in July last year.
"It is imperative to note that this is the fourth time we are appearing for plea-taking only for the DPP to seek adjournment. Any further delay not only denies justice but causes even more trauma to victims," Mbanya said.
Otieno said the DPP could have amended the charges had he wanted and asked that suspects present plead to charges.
"It is a cardinal teaching in law that suspects can plead to charges even if others are not in court," Otieno said.
He said further adjournments would undermine the law that requires that the administration of justice is expedited.
Lawyers prepare before the beginning of the baby pendo case at Milimani law courts on January 29, 2025/EZEKIEL AMING'A
The suspects were first presented in court in October 2022, but they have yet to plead to the charges.
Initially, they had challenged their prosecution until Justice Kimondo ruled in July last year that the High Court has jurisdiction to hear the case.
Judge Kimondo ordered that the suspects plead to murder charges on October 3, 2024.
But when parties appeared before Justice Lillian Mutende on that day, Mohamed Baa did not show up causing an adjournment after the prosecution argued that the nature of the charges required all the suspects to take plea together.
Defence lawyers leave milimani law courts after the case was pushed to tomorrow/EZEKIEL AMING'A
A month later, plea-taking was again deferred on the request of the fourth suspect, Linah Kogey who was taken ill.
Again, Baa was not present and Justice Mutende ordered his production in court in December.
But the matter was to be adjourned again; this time it was because Judge Mutende had been transferred to Nyahururu.
The file was then transferred to Justice Mutende's replacement Justice Margaret Muigai with plea-taking fixed for Wednesday, January 29, 2025. The police were also directed to file explanations on why they could not arrest Baa.
Justice Muigai will on Thursday, January 30, issue directions on how the case will proceed.
