The trail of three police officers facing crimes against humanity over the deaths of 35 people, including Baby Samatha Pendo, almost eight years ago, will now be conducted in Kisumu.
High Court judge Margaret Muigai directed that the file be transferred to Kisumu following an application by the Director of Public Prosecutions (DPP) Renson Ingonga.
The application was supported by the Independent Policing Oversight Authority (Ipoa), stating that it was just and in public interest for the trial to be done before the High Court in Kisumu.
“The over 80 witnesses are better served and will access justice by testifying in the nearest court and reduce the expenses of travel and stay in Nairobi until they testify in court. It is only fair and just that where majority of witnesses reside, the court proceedings are conducted at the nearest court,” said the judge.
Five senior police officers are facing multiple charges over the deaths, which occurred after the 2017 General Election.
John Masha, who was the Kisumu Central Administration Police (AP) commander, Linah Kogey who was in charge of the Nyalenda Police Post, Cyprian Robi Wankio and James Rono pleaded not guilty to the charges.
Mr Mohammed Baa, the fifth suspect, is still at large and a warrant for his arrest was issued.
The charges against them include murder, rape and torture under crimes against humanity contrary to various sections of the International Crimes Act and Article 28 (b) of the Rome Statute of the International Criminal Court.
The offences were committed in informal settlements of Nyalenda, Nyamasaria, Kondele and Obunga areas in Kisumu County.
The accused persons had opposed the trial being conducted in the lakeside city, citing their safety and the fact that they had been barred from setting foot in Kisumu, as part of the conditions for them to be released on bond.
They also said they were interdicted and transferring the case to Kisumu would strain them financially.
Justice Muigai, however, noted that the court may be required to visit the scenes and the various parts of Kisumu, where the offences allegedly took place.
The judge said the transfer of the case to Kisumu will expedite the hearing and determination of the matter.
The court said that whereas the accused persons had raised legitimate concerns, public interest and justice weighed in favour of transferring the case.
Justice Muigai added that the warrant of arrest against Baa remains in force, urging anyone with information on his whereabouts to contact the police and office of the DPP.
The accused persons failed in their bid to stop their trial when the Court of Appeal assured them that the trial court will be under an obligation to protect their rights as guaranteed under Articles 49 and 50 of the Constitution, and should they be dissatisfied, they will have an opportunity to challenge any aspect of the trial.
“Their fear that they are being used as guinea pigs in respect of the application of the provisions of the International Crimes Act, 2008, and the Rome Statute to members of the National Police Service is also not sufficient reason for holding that their appeal will be rendered nugatory if stay is not granted,” said the Court of Appeal in a ruling in May.
