The family of Baby Pendo and other victims of police brutality during the 2017 post-election violence in Kisumu were on Thursday disappointed after the prosecution of 12 police commanders was yet again deferred following a request by the DPP.
The victims through lawyer Willis Otieno told the court they were expecting the 12 police officers to plead to murder charges for the commencement of the administration of justice in the case.
High Court judge Kanyi Kimondo had on July 25 ruled that the suspects plead to murder charges on October 3.
However, when the suspects appeared before Justice Lilian Mutende for plea-taking, the DPP through senior assistant director of public prosecutions Vincent Monda made an application to defer the plea-taking.
His argument was that the eleventh suspect Mohammed Baa is yet to be apprehended and produced in court.
Monda asked that the matter be deferred for a month so the Inspector General of Police Douglas Kanja can arrest Baa and produce him in court to take plea. He said given the nature of the charges, it was imperative that all the 12 suspects be tried together given they are also accused jointly
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But that request was vehemently opposed by lawyers representing families of the victims.
Lawyer Willis Otieno asked the court to direct the 11 suspects who were present to plead to murder charges saying victims had waited for too long for the commencement of the justice process.
“The victims have been waiting for eight years now to find justice. Justice delayed is justice denied. The bid to have the plea-taking deferred amounts to an abuse of the court process,” Otieno said.
His position was supported by other lawyers representing the victims including the Law Society of Kenya that is also a party in the case.
Laywer Victor Kamau for the Kenya National Commission on Human Rights said deferring the plea would amount to trampling on the rights of victims.
“No cogent reason has been given by the prosecution to defer the plea-taking for the suspects who are in court. The application amounts to an abuse of the court process,” Kamau said.
The DPP had also argued that a case was still pending in the Court of Appeal on whether the suspects should be tried before a bench given they are being charged under the International Crimes Act.
However, the victims’ lawyers said there was no order barring the proceedings before the High Court and that the case ought to proceed.
The suspects 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 are facing 47 counts of crimes against humanity including murder, torture and rape. The offences were allegedly committed during the 2017 post-election violence in Kisumu.
Baby Pendo who died after she was allegedly hit by a blunt object as anti-riot police officers pursued protesters in their compound, has become the face of the victims.
The police commanders are said to bear the responsibility for the actions and inactions of their juniors who were under their command.
When they were first arraigned before Justice Kanyi Kimondo at the High Court in Nairobi in 2022, their lawyers raised objections to them taking plea arguing the charges as framed under the International Crimes Act, cannot be handled by the court.
They said a special court or tribunal ought to be formed to hear the matter or the suspects be taken to the International Criminal Court in The Hague, Netherlands.
It was also their argument that the plea-taking be held in abeyance until the case is heard and determined.
Justice Kimondo on July 25, 2024 after hearing the submissions on the matter ruled that the case can be handled by a single judge of the High Court as it is properly under the court’s jurisdiction.
He directed all the suspects to be physically present in court on October 3 for plea-taking.
However, the judge noted that the 11th suspect, Mohammed Baa, has remained at large and the court issued a warrant of arrest against him.
“A warrant of arrest is hereby issued against Mohammed Baa and he should be produced alongside the other suspects on October 3 to take plea,” Justice Kimondo said.
But Baa was not present yet again, forcing the prosecution to ask for more time so the Inspector General can effect the arrest warrant.
But the victims’ lawyers read malice in the application saying there was nothing to show that Baa would indeed be arrested in the next one month as was requested given he’s not been arrested since 2022.
In the end, Justice Mutende ruled in favour of the DPP saying he has the sole discretion to charge and take control of the prosecution as per the Constitution.
“The victims are allowed to participate in the proceedings but their participation is limited as the law only allows the DPP to take control of the prosecution. For that reason, the application is allowed and plea-taking deferred to November 5, 2024,” Justice Mutende ruled.
She directed that the Inspector General ensures Baa is arrested and produced in court to take plea alongside the other suspects.
