Court of Appeal has rejected an application by 11 senior police officers who sought to halt their prosecution over the murder of six-month-old Baby Samantha Pendo during the 2017 post-election violence in Kisumu. The officers, facing charges of murder, torture, and crimes against humanity under the International Crimes Act had hoped to block their prosecution arguing that there were conflicts between Kenya's laws and the Rome Statute under which they are being charged. However, in a unanimous decision, the appellate judges Patrick Kiage, Weldon Korir, and Joel Ngugi dismissed the officers' plea allowing the prosecution to proceed at the High Court. "We are of the view that although we have found that the suspects' appeal will not be rendered nugatory, the novel issues raised in the appeal need to be determined without undue delay," the Judges ruled.
The officers, including senior commanders such as Linah Kogey, Mohamed Guyo and Titus Mutune Yoma, are accused of overseeing brutal police operations that led to the death of Baby Pendo and 39 other protesters during the violent protests that erupted after the contested 2017 presidential election results.
The application seeking a stay of the High Court's decision that okayed their prosecution was brought by the officers led by Mutune, who argued that there were no clear rules or regulations guiding proceedings in trials of international crimes under the International Crimes Act. They contended that the potential conflict between Kenya's municipal laws and the provisions of the Rome Statute, particularly in such a unique case, posed a threat to their constitutional right to a fair trial.
According to Mutune's application, if the officers were required to take a plea before their appeal was determined, they would suffer prejudice, including immediate interdiction as per the National Police Standing Orders. He argued that such a scenario would leave them without income, and even if the appeal succeeded, their reinstatement could not be guaranteed due to the likelihood that their positions would be filled.
