The Director of Public Prosecutions Noordin Haji has been granted 21 days to review charges against 12 police bosses, including a commissioner, linked to the death of Samantha Pendo, also known as Baby Pendo, in Kisumu in 2017.
This is after Haji, through Alexander Muteti and Victor Owiti, urged Justice George Kinya Kimondo on Monday, November 11, to give him more time to interrogate afresh the file in the matter and a constitutional petition filed before a separate court by the suspects prior to the commencement of the murder trial against the officers.
"For good order before plea is taken, we urge the court to grant us 21 days to look at the current file as it has come to my boss' attention this morning that there is a constitutional petition in another court where the suspects are challenging the legality of the intended trial and what has emerged from the proceedings is the issue of jurisdiction and manner in which charges have been framed, " Muteti said.
"This is a very serious case with far-reaching implications as it is a case of unique nature as the suspects have been brought to court where they are being charged under the International Crimes Act. This is a case where a child died and other violations of sexual violence and torture. We need directions from the court on how to proceed on the matter regarding its uniqueness."
Consequently, the case was deferred until January 30, 2023, when the court will give directions on how the matter should proceed.
Judge Kimondo, however, ordered the suspects to present themselves before a clinical officer at Mathare Mental Hospital for mental assessment before they can plead to the murder charges.
The mental assessment is a mandatory legal requirement for all suspects who are facing murder charges.
"Since the DPP has informed the court the suspects are yet to undergo a mental assessment as required, l direct all suspects shall present themselves before a consultant psychiatrist at Mathare Mental Hospital for examination for their mental fitness and a report furnished with the court," the judge directed.
At the same, the court also ordered the Inspector General of Police Japhet Koome to arrest one of the officers namely Mohammed Baa who failed to appear in court as earlier directed.
"In order to progress this matter and in the interest of justice l order that a warrant of arrest shall be issued against Mohamed Baa. That warrant shall be executed by the Inspector General of police," ordered Judge Kimondo.
The suspects did not oppose the request by the DPP to defer the plea for three more weeks but urged the court to allow them file a formal application on whether the Kenyan court has jurisdiction to hear offences under the International Crimes Act.
The defence lawyers said the court has no mandate to hear the intended offences of their clients which are framed under the International Crimes Act
The defence questioned why the DPP filed the case against the officers in the Kenyan court knowing that it has no jurisdiction to hear the same.
According to the officers, only the International Criminal Court (ICC) has the power to hear the charges levelled against them.
"We wish to inform you that the information supplied to us brings in the offences of the International Crimes Act. Our considered view is that this court as empanelled lacks jurisdiction to hear this matter. Why is the DPP filling the case here? How many other Kenyans have been tried locally? What are the legitimate expectations of other Kenyans facing allegations under the International Crimes Act? Who is next, who goes to Hague court and who doesn't?" the defence led by lawyer William Arusei posed.
The victim's lawyers, LSK and IPOA opposed the request by the DPP to differ plea taking saying there is no order to stay the proceedings and urged the court to have the officers charged.
Baby Pendo, then six months old, died of head injuries sustained during a police raid at their family home in Nyalenda slums after protests over the presidential election results.
