The High Court has ordered 12 police officers among them service commanders accused of murdering Baby Pendo alongside 39 victims of extra-judicial killings be charged with murder on November 21, 2022.
Justice Daniel Ogembo gave the directives after declining an application by seven defence lawyers led by Willliam Arusei and Andrew Makundi to have the plea taking deferred for two months.
The officers are challenging the jurisidiction of the judge to try the case.
They are urging Chief Justice Martha Koome to appoint a special bench to hear the case which has been pressed under the Rome Statutes on International Crimes Act.
“I urge this court to defer for two months plea taking in this case since as the suspects have filed several constitutional applications in other divisions of this court challenging the directive by the Director of Public Prosecutions Noordin Haji to have them charged over the deaths of Baby Pendo and 39 other victims of extra-judicial killings,” Mr Arusei said.
He added that the serving officers were also questioning the jurisdiction of the judge to try the case.
“Jurisdiction is everything and if the court finds it has no capacity to try the case then the case will be terminated,” said Arusei.
But lawyers Willis Otieno, Victor Kamau and Edward Mbanya for Utu Wetu, IPOA and Kenya National Humar Rights Commission (KNHRC) respectively opposed the two months intervention period saying “relatives of Baby Pendo and 39 other victims of police brutality have been waiting for justice to be done for the last five years.”
Mr Kamau said all High Court judges have equal powers to deal with any rights issue raised by suspects in any criminal case and, therefore, Justice Ogembo can determine applications filed by the 12 suspects.
A state prosecutor Tabitha Ouya informed the court some of the applications pending before Justice Momanyi Bwonwong’a have also been referred to him (Justice Ogembo) for determination.
Only nine officers including Titus Yoma, Titus Mitune, John Chengo, Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robe Wankio, Josphat Sensira and James Rono appeared before Justice Ogembo.
The judge deferred the plea for seven days to enable the three others – Linah Kogey,Mohammed Ali Guyo and Mohammed Baa – attend court on November 21, 2022.
Linah was said to be indisposed while Guyo and Baa were said to have filed applications of bail pending arraignment.
The judge ordered the nine officers who were present in court to be released on a personal bond of Sh 200,000 each with an undertaking they will appear in court for plea taking.
The orders were issued after the judge dismissed the officers’ application that the plea taking in the matter be differed for two months to allow the determination of a constitutional petition they have filed challenging their prosecution.
The DPP through State counsels Tabitha Ouya, Vincent Monda, Victor Owiti and Becky Arunga told court that their office is not aware of the applications challenging the DPPs mandate to recommend charging.
"In the absence of any orders stopping plea taking, I urge the court to order the suspect before you to take plea," said Ouya.
The victims’ lawyer further opposed the application by the officers and urged the court to order the nine officers to plead to the charges.
The police officers had sought for two months to defer plea as they prosecute the applications challenging their prosecution.
The officers claim they have filed several applications seeking for anticipatory bail and challenging the DPP's Noordin Haji mandate to undertake their trials.