The High Court has directed the Director of Public Prosecution (DPP) to consider dropping charges against former police officer Mohamed Baa, who remains at large, to allow the long-stalled Baby Pendo murder trial to proceed.
In a ruling delivered on Thursday, Justice Margaret Muigai acknowledged that Baa may be outside the court’s jurisdiction and that his continued absence should not prevent the case from moving forward. She instructed the prosecution to amend the charges within 30 days and scheduled plea-taking for March 3, 2025, with or without Baa’s presence.
Plea-taking has been delayed for over two years due to Baa’s absence, hindering the commencement of the trial. A warrant for his arrest remains active. However, authorities have been unable to apprehend him.
On Wednesday, Inspector Peter Kanagi, representing Police Inspector General Douglas Kanja, informed the court that Baa is believed to have crossed into Somalia, making his arrest difficult. Somalia is not a member of the Rome Statute, which complicates extradition efforts.
Baa is among 12 former and serving police commanders facing 47 counts of crimes against humanity related to the 2017 police crackdown in Kisumu. The other accused include Titus Yoma, Titus Mutune, John Chengo, Linah Kogey, Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robi, Josphat Sensira, Mohammed Ali Guyo, and James Rono.
State prosecutor Mark Baraza requested 45 days to amend the charges before plea-taking, but this was strongly opposed by victim representatives. Justice Muigai instead granted 30 days, instructing the DPP to make necessary amendments and ensure that the remaining 11 suspects take their plea on March 3.
“The ODPP may consider withdrawing charges against the eleventh suspect if he cannot be apprehended and brought to court,” she stated.
The prosecution argues that the charges fall under the International Crimes Act, requiring all suspects to plead together. Baraza emphasized the severity of the charges, which are considered high atrocity crimes affecting humanity as a whole.
Justice Muigai has also mandated the police to provide an update on their efforts to arrest Baa when the case resumes. Lawyers representing victims, led by Willis Otieno of Utu Wetu, welcomed the new plea-taking date, urging that the trial finally commence.
Meanwhile, defense lawyers, led by senior counsel Nelson Havi, affirmed their readiness to proceed even with amended charges.
The case, initially set for plea-taking in October 2022, has faced numerous delays due to legal challenges, illness among the accused, and judicial transfers. With Justice Muigai’s ruling, the long-awaited trial is now set to begin on March 3, barring further obstacles.
