The High Court will Thursday determine whether Director of Public Prosecutions (DPP) Renson Ingonga will be granted time to review charges against 12 senior police officers accused of killing Baby Pendo and 39 others in 2017.
Mr Ingonga indicated that he wished to amend the charge sheet as one of the suspects, Mohamed Baa Amin, who is a retired assistant superintendent of police, has disappeared without trace.
State prosecutors Mark Barasa and Gikui Gichuhi informed Justice Margaret Muigai that efforts to trace Amin at his home in Madaga Village Korwa Sub-location in Wajir County have been futile.
Mr Barasa through Chief Inspector of Police Peter Kanani said it is feared that Amin has crossed the border to Somalia.
Justice Muigai heard that Amin retired from the National Police Service on July 2021 and efforts to trace him are futile.
Wajir County Regional Police Commander Pepita Ranka visited the home of Amin and his relatives said he never went home after retirement.
Mr Barasa urged the court to grant the DPP's office to liaise with international security organisations to trace the suspect with a view to repatriate him to face justice.
“Although Somalia is not a signatory to the international security organs the government will seek assistance from the relevant international organisations to assist it bring to book Amin to be prosecuted alongside the other 11 senior police officers in the dock,” he said.
The police officers are to be charged with 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 officers include the then Kisumu county police commander Titus Yoma, Nyanza regional commander for the General Service Unit (GSU) Christopher Mutune and John Masha who was the Kisumu Central Administration police service (AP) commander.
Others are Linah Kogey who was in charge of the Nyalenda police post, inspector of police Benjamin Koima, a retired senior superintended of AP and Benjamin Lorema who was the alternate in charge of a GSU platoon deployed at the Kachok Roundabout.
Others are James Rono, Mohammed Guyo, Cyprine Wankio, Volker Edambo and Josephat Sensira.
Mr Baraza urged the court to grant the DPP the 45 days during which he will liaise with the Independence Policing Oversight Authority (Ipoa) to amend the charges against each of the 12 suspects following the revelation in the report from the National Police Service regarding the disappearance of Amin.
Barasa said the Inspector General of police Douglas Kanja has also established from the organisation of the retired police officers that Mr Amin has not registered as a member thereby complicating the issue further.
He invited members of the public who may see or know where Amin is with a view to effect public arrest.
The defence lawyers led by Nelson Havi, Andrew Makundi and William Arusei did not oppose the application by the DPP, seeking time to amend the charges.
"The National Police Service has today opened a chance of any citizen of good will who traces the suspect to report to any police station, call the DPP's office or effect public arrest," Havi submitted.
The application was, however, vehemently opposed by human rights organisations including Amnesty International, International Justice Mission (IJM), Utu Wetu, alongside Ipoa and the Law Society of Kenya (LSK) saying that the plea taking has been delayed for past two years.
Amnesty International lawyer Edward Mbanya on behalf of the victims asked the court to proceed with the plea taking, saying Justices Kanyi Kimondo and Lilian Mutende had directed plea taking be conducted.
Justice Muigai was informed that the two previous judges had directed plea taking be conducted on January 15, 2025 but one of the suspects was unwell.
“Your honour this is the fourth time in a row adjourning the plea taking," he said.
LSK deputy president Mwaura Kabata asked the court to summon Mr Ingonga in court, so that he could explain why the matter was not taking off for the fourth time.
"Baby Pendo would be turning 10 years today if she was alive. It is for the living to pursue justice on her behalf and the DPP is curtailing this process," Kabata told the court.
He added that the DPP and Ipoa can canvass the issue of amending the charges within a few hours then give room for plea taking today in the afternoon.
"We feel the heaviness and trauma the victims' relatives are undergoing each day when the case is adjourned. There has been delayed in meeting justice," he added.
Utu Wetu lobby group lawyer Willis Otieno buttressed the position of LSK saying the justice being sought is for people who are six feet under and everyday their relatives attend court only to be treated to applications of adjournment by the DPP.
"This plea must be taken today. It cannot be delayed because one person has disappeared in to Somalia which has no repatriation treaty with Kenya since it is not a signatory to International bodies on Rights," Willis said.
In reply, Mr Barasa insisted on the 45 days adjournment to enable Kenya which is a signatory to the Rome Statue which have been domesticated in the constitution permitting it to seek assistance from any international organization to assist repatriate fugitives to face justice.
In her brief ruling, Justice Muigai said she needs time to analyze the submissions by the parties before giving a ruling virtually on January 30, 2025.
