Baby Pendo family challenges the withdrawal of charges against police officers

The family of Baby Samantha Pendo, together with dozens of victims of the 2017 post-election violence in Kisumu, has moved to the High Court in Kisumu, challenging the Director of Public Prosecutions’ (DPP) decision to withdraw charges against eight senior police officers initially accused of crimes against humanity.

In a petition filed on April 12, the 50 petitioners, among them 44 survivors of alleged torture and sexual violence, contend that the DPP acted unlawfully in revising the charge sheet and excluding senior commanders from prosecution.

Other petitioners include the Law Society of Kenya, the Kenya National Commission on Human Rights, Amnesty International Kenya, and the Independent Medico-Legal Unit.

At the centre of the dispute is the DPP’s amended information dated May 13, 2025 which reduced the number of accused persons from twelve to four.

The petitioners argue that the decision effectively shielded the most senior officers from accountability and was made without consultation with victims or any public explanation.

The case arises from the events of August 11 and 12, 2017, in the aftermath of the general election, when police officers conducted security operations in Kisumu County following protests.

During the operation, Baby Samantha Pendo sustained fatal head injuries after police allegedly stormed her family home in Nyalenda.

She died three days later on August 15, 2017.

According to the petition, the operation was marked by widespread human rights violations, including torture, rape, and other forms of sexual violence against residents.

A judicial inquest concluded in 2019 found that police commanders bore responsibility for the operation under the doctrine of command responsibility.

Following investigations by the Independent Policing Oversight Authority, the DPP in 2022 instituted charges before the High Court in Nairobi against twelve police officers for murder, rape, and torture as crimes against humanity under the International Crimes Act.

However, before the accused persons could take plea, the proceedings were delayed by constitutional challenges, which were ultimately dismissed by both the High Court and the Court of Appeal.

Despite those rulings clearing the way for trial, the DPP later sought leave to amend the charges.

The petitioners argue that although the court granted limited leave, the DPP proceeded to withdraw the original information entirely and substituted it with an amended charge sheet naming only four officers.

The eight officers Titus Yoma, Titus Mutune, Benjamin Kipkoskei Koima, Benjamin Lorema, Volker Edambo, Josphat Sensira, Mohamed Ali Guyo and Mohamed Baa excluded from the revised charges were among the most senior commanders initially implicated.

The petitioners maintain that no reasons were provided for their removal and that victims were neither consulted nor involved in the decision-making process.

In their petition, the applicants contend that the DPP’s actions violated constitutional guarantees, including the right to fair administrative action, access to justice, and the rights of victims to participate in proceedings.

They further argue that the failure to prosecute the eight senior officers undermines Kenya’s obligations under both domestic and international law to investigate and punish crimes against humanity.

The petition seeks orders quashing the amended information dated May 13, 2025, and directing the reinstatement of the original charges against all twelve accused persons.

In the alternative, the petitioners seek leave to institute private prosecutions against the eight officers who were excluded.

They have also asked the court to certify the matter as raising substantial questions of law requiring the empanelment of a bench of at least three judges, and to stay the ongoing criminal proceedings pending determination of the petition.

In a supporting affidavit, Baby Pendo’s father, Maryjoseph Oloo Abanja, states that the decision to withdraw charges against senior officers has denied his family justice and caused renewed pain and trauma.

He asserts that the move has undermined their legitimate expectation that all those responsible for the death of their child would be held accountable and has eroded confidence in the justice system.