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Fresh twist in Baby Pendo murder case as accused police officer ‘flees to Somalia’

Justice Muigai heard that Amin retired from the National Police Service on July 2021 and efforts to trace him have been unsuccessful

The High Court will tomorrow (Thursday) determine whether to grant the Director of Public Prosecutions (DPP) 45 days to review the charges against 12 senior police officers accused of killing Baby Pendo and 39 others during the post-election violence in 2017.

This follows a revelation by the DPP Renson Ingonga that one of the suspects Mohamed Baa Amin, 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.

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 have been unsuccessful.

Barasa said Wajir County Regional Police Commander Pepita Ranka visited the home of Amin and his relatives  said “he never went home after retirement.”

He urged the court to grant the DPP’s office time to liaise with international security organisations to trace the suspect with a view to repatriating him to face justice.

He said “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 urged the court to grant the DPP the requested 45 days during which he will liaise with the Independent 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.

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According to Barasa, the case cannot continue without all the suspects in the dock since the charges revolve around international crimes covered under Article 61 of the Rome Statute, which requires that all suspects be brought before the pretrial chamber.

“This is not a typical case under the Penal Code, as the crimes involved are categorized as atrocity crimes, which are considered the most serious because they impact humanity. The suspects are being sought to be held accountable, particularly under the doctrine of command responsibility,” said Barasa.

Barasa said Inspector General of Police Douglas Kanja has also established from the National Association of Retired Police Officers that 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 agreed with the DPP’s position to seek indulgence for 45 days to amend the charges with a view to fostering justice.

“The National Police Service has today opened a chance of any citizen of goodwill who traces the suspect to report to any police station, call the DPP’s office or effect public arrest,” Havi submitted.

However, Amnesty International, International Justice Mission , Utu Wetu, IPOA and the Law Society of Kenya opposed the application, saying that the plea taking has been delayed for two years.

Amnesty International lawyer Edward Mbanya asked the court to order plea taking proceed today saying two previous judges Justices Kanyi Kimondo and Lilian Mutende had directed plea taking be conducted today.

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Justice Muigai was informed that the two previous judges had directed plea taking be conducted on January 15, 2025 against a background of the fourth suspect being indisposed.

The suspect was to present a medical report today (January 29).

Mbanya said the previous orders did not give room to the DPP to adjourn the matter further.

“Your honour this is the fourth time in row adjourning the plea taking,” he said.

LSK Deputy President Mwaura Kabata asked the court to summon Ingonga to appear before It in person to 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 said it is absurd for the defence to support the DPP to adjourn this matter for 45 days.

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.

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In rebuttal Barasa insisted on the 45 days adjournment to enable Kenya which is a signatory to the Rome Statue which have been domisticated 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 analyse the submissions by the parties before giving a ruling virtually tomorrow, January 30, 2025.

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