Four police commanders charged with the murder of Samantha Pendo and 34 other victims during the 2017 post-election violence have moved to the High Court seeking orders to quash the case against them.
They officers argue that the evidence supplied by investigators does not disclose any offence and are also asking the court to suspend their trial pending the determination of their application.
John Chengo Masha, Linah Kogey, Cyprine Robi Wankio and James Rono were in charge of platoons of police officers dispatched to quell demonstrations in Kisumu following the disputed 2017 General Election.
The protests erupted after demonstrators challenged the presidential election results announced by the electoral commission.
In their application before the High Court, the four officers seek to quash charges of murder, rape and crimes against humanity allegedly committed during the post-election protests.
Their application is based on Articles 25, 27, 28, 29, 47, 50 and 157 of the Constitution, the First Schedule of the International Crimes Act and Section 382 of the Criminal Procedure Code.
The officers argue that the prosecution has failed to disclose any offence against them individually and that the charges are therefore defective.
Through their lawyers the officers asked the court to quash the amended charges dated May 2, 2025, arguing that they are vague, duplicitous and legally flawed. They contend that the charges, as framed, fail to disclose an offence “known to and punishable under the law”.
The four officers have denied killing Baby Pendo and the other victims during the violence nine years ago. They are currently out on cash bail of Sh1 million each.
In the application, the officers argue that the charges violate Article 50(2)(b) of the Constitution, which guarantees an accused person the right to be informed of the charge with sufficient detail to enable them to respond.
They fault the prosecution for failing to the specific acts or omissions allegedly attributable to each of them.
The officers say they have not been told what “necessary and reasonable measures” they allegedly failed to take to prevent offences by police officers under their command.
“The charges improperly anchor criminal liability on command responsibility as a crime in itself without pleading with precision the factual substratum necessary to sustain such liability, contrary to Article 50(2)(b) of the Constitution,” the officers state in their application.
During the hearing, the lawyers also protested that the Director of Public Prosecutions had failed to comply with High Court orders issued last year requiring full disclosure of the evidence against each accused officer.
“I urge the court to first hear and determine the application by the four officers to stay all proceedings in this case and quash the amended charges, as they disclose no offences against the accused,” they submitted.
The trial judge directed the prosecution to make full disclosure of the evidence against each suspect within 30 days, up to April 12, 2026.
The judge warned that if full disclosure is not made within that period, the court will proceed to hear and determine the officers’ application seeking suspension of the trial.
The charges state that the officers committed the offences contrary to Section 6(1)(b) as read with Sections 6(3)(a) and 7(1)(f) of the International Crimes Act No.16 of 2008 and Article 28(b) of the Rome Statute of the International Criminal Court.
Initially, the DPP had preferred charges against 12 police officers. However, one of them Mohammed Baa, has been missing.
An international arrest warrant was issued against the retired police officer who is believed to have fled to Somalia after learning that he was wanted to face charges related to the killings, rape and crimes against humanity allegedly committed during the protests.
