The High Court has asked the Director of Public Prosecution to consider dropping charges against a former police officer who cannot be arrested in connection with Baby Pendo's murder.
Mohamed Baa remains at large.
In a ruling delivered on Thursday, Justice Margaret Muigai acknowledged that the suspect could be outside the court’s jurisdiction and that the state may drop charges against him so the case can proceed with suspects who are present.
She gave the prosecution 30 days to amend the charges and directed that the other suspects be presented in court to plead to charges of murder on March 3 with or without Mohamed Baa.
Plea-taking in the case has stalled the commencement of the trial for the last two years owing mainly to Baa’s absence.
There is an active warrant of arrest against him.
On Wednesday, Inspector Peter Kanagi representing police IG Douglas Kanja on behalf of the National Police Service told Justice Margaret Muigai that they have been unable to arrest Baa.
Baa is among 12 former and serving police commanders who are facing 47 counts of crimes against humanity.
The others are Titus Yoma, Titus Mutune, John Chengo, Linah Kogey, Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robi, Josphat Sensira, Mohammed Ali Guyo and James Rono.
State prosecutor Mark Baraza on Wednesday said they needed 45 days to review and amend the charges before plea-taking could take place, an application that was vehemently opposed by lawyers representing victims.
In her ruling, Justice Muigai directed the DPP to amend the charges in 30 days so the other 11 suspects who are present can take plea.
“The ODPP may consider withdrawing charges against the eleventh suspect if he cannot be apprehended and brought to court,” Justice Muigai said.
In his submissions on Wednesday, Inspector Kanagi stated that Baa is believed to have crossed into a neighbouring country - 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 argues that the suspects are not arraigned under the normal penal code offences but under the International Crimes Act in which they are charged jointly and severally.
As such, all suspects must be present to plead to the charges together.
State counsel Mark 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.
While Justice Muigai only granted 30 days, she directed that all possible means be explored to arrest and present Baa in court on March 3.
Police are also expected in court on that day to explain the outcome of their efforts to arrest the suspect.
Baa is a retired police commander. He has never appeared in court since October 2022 when the other suspects were first arraigned.
Justice Muigai said his absence cannot hold the court and that the DPP should consider dropping charges against him so the case can proceed with those who are present.
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.
A month later, plea-taking was again deferred at 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.
Lawyers representing victims led by Willis Otieno of Utu Wetu said they welcomed the date of March 3 for plea-taking so the matter can commence.
Defence lawyers led by senior counsel Nelson Havi also said they would be ready to proceed even with the amended charges